We definitely need to talk about harmful speech proposals

Efforts to make the online environment safer are laudable but thank God the latest New Zealand proposal is still only a discussion document. As the proposal stands, it could add a new volume to the already burgeoning body of work on the law of unintended consequences.

The work that has been undertaken on harmful online content has been valuable and, no doubt, there will be improvements to an environment that has been wilder than the Wild West. However, the regulation that is now in the pipeline has the potential to cause as much harm as good because its approach has been limited by a particular digital mindset.

In short, the desire to prevent the harm that is all too evident in largely unregulated social media has blinded its authors to the impact of its countermeasures in other environments.

That could explain the singular failure to recognise a special category for news and current affairs produced by professionals who already submit themselves to regulatory oversight.

The discussion document, released last Thursday by Te Tari Taiwhenua Internal Affairs, proposes the establishment of an independent regulator with oversight of new ‘Codes of Practice’ created in consultation with ‘platforms’ and interested parties. It states, however, that the regulator “would not be involved in moderating individual piece of legal content”.

This seems to suggest journalists will be allowed to go about their day-to-day business. I am sure that is the authors’ intention, but life is never quite so simple.

The omission of “individual piece of legal content” from the regulator’s oversight fails to recognise that this content does not exist in isolation from the environment in which it is created.

For the sake of argument, let’s assume a single Code of Practice to prevent harmful content is put in place to cover mainstream media – NZME, Stuff, TVNZ, Discovery, MediaWorks, RNZ, Allied Press, community newspapers et al. It would need to be consistent with the definitions of unsafe or harmful content and their general application.

So, what does the discussion document say about those definitions? It bears repeating (the emphasis is mine):

• Content is considered harmful where the experience of content causes loss or damage to rights, property, or physical, social, emotional, and mental wellbeing. Being harmed is distinct from feeling offended (although content that is harmful will often also cause offence).
• Unsafe content is where there is a risk of harm occurring if that content was experienced by a person. Everyone’s risk profile is different. Safeguards can be put in place to help to reduce risks.
• While most content is harmless, there is a wide range of unsafe content. We are particularly concerned about content that is unsafe for children and young people, given the impact it can have on their development and mental wellbeing.
• Some forms of content can be unsafe for communities, or for society as a whole for example, if it discriminates against an ethnic group, or interferes in democratic processes. These forms of harm also fall within our proposals.

Definitions like these have a pre-emptive quality that is designed to prevent harm by proscribing content, even in the absence of evidence that harm has been caused.

Prohibition has long been applied to film and literature, providing a well-established process for classification and enforcement. These definitions, however, extend the boundaries of harm well beyond what exercised the judgement of traditional film and book censors. They also significantly extend the scope of groups requiring particular protection and consideration.

That, in itself, may be no bad thing, particularly when applied to social media. The U.S. Surgeon General, for example, warns that “there are ample indicators that social media can also have a profound risk of harm to the mental health and well-being of children and adolescents”.

However, existing mainstream media codes of ethics have long recognised the need to pay particular regard to the interests of children and young people. The Media Council, Broadcasting Standards Authority and Advertising Standards Authority all have specific provisions relating to children and young persons, as do individual news organisations’ codes of conduct and ethics. These codes also cover discrimination and diversity.

It is a fair guess, therefore, that the definitions set out in the discussion document are not aimed at mainstream news media, movie studios or book publishers. They are aimed what is currently the under-regulated or unregulated part of a digital media landscape to which mainstream media already apply the same principles they deploy elsewhere.

Yet the tenor – indeed the apparent intent – of the discussion document is that a new regulator would apply common standards to all. That means standards that are designed to curtail the activities of racists, misogynists, predators, conspirators, and provocateurs will also apply to the creators and publishers of professionally mediated news and current affairs.

Pause for a moment and apply such definitions and standards to reported events, actions and utterances. They have the potential to create a substantial chilling effect on what and how journalists and editors choose to report and publish.

How, for example, would one report the actions and utterances of the protestors in Parliament Grounds? Would the views of anti-vaxxers potentially harm physical, social, emotional and mental well-being? Would repetition of the threats to lynch politicians interfere in democratic processes? And what effect would the sight of a playground in flames have on children?

Of course, right-thinking people would not apply such standards to legitimate reporting of events that are in the public interest. Unfortunately, laws and regulations are not only there for people who display common sense. They can, and are, misused for a variety of reasons by people in varying states of mental equilibrium.

Put simply, there must be an exemption for news and current affairs. It must, however, have a better definition of a news organisation than the provision in Section 8 of the Privacy Act which states the legislation does not apply to “a news entity, to the extent that it is carrying on news activities”. The likes of Facebook and Google must not be allowed to wriggle their way into an exemption, particularly when the news they carry is at someone else’s expense.

Sadly, this is not the only flaw in the proposed harmful and unsafe content plan.

The discussion document calls for the creation of an independent regulator “at arm’s length from government”. That sounds fine until we discover that the board of the regulator would be appointed by the government from which is supposed to be separated and would be “monitored” by a government department. At that point, I apply what I call the Trump Filter. This filter asks a simple question: Would this measure be immune from a government that flies in the face of principle? And, in this case, the answer would be ‘no’. To be truly independent, the board would need to comprise nominees from industry, interest groups, and community bodies. It would elect its own chair and appoint its own executives. The only body to which it would be responsible would be Parliament.

The discussion document also claims the regulator would oversee “one cohesive framework with consistent safety standards”. It would not do so. The fact that it would eschew adjudication on an “individual piece of legal content” means the current complaints processes – the Broadcasting Standards Authority, the Media Council, and the Advertising Standards Authority together with their current codes – would have to remain in place to consider complaints from the public.

In other words, this would be an additional level of regulation and, going by the discussion document, would burden news media companies with additional compliance costs. It would also require existing regulatory bodies to audit all of their codes and standards to ensure compatibility with the legally-binding Codes of Practice overseen by The Regulator. That makes the document’s claim that “we don’t want to over-regulate them” ring somewhat hollow, and also points to a missed opportunity to rationalise an existing regulatory system that is manifestly anachronistic.

And there is a disturbing tone to the discussion document: it talks of alternative “supportive or prescriptive approach” – carrot or stick. While it gives the impression it wants to be told which approach the public prefers, there is an implication that the final choice will lie with the powers that be.

I have concentrated here on what I see as flaws in the proposal. That is not to say that there is much in the document that is worthwhile. There is a clear need to provide new tools to deal with harmless and unsafe content.

However, as is often the case in such matters, it has been confronted by countervailing rights. It does see it is faced with that dilemma but when it says it “looks to strike an appropriate balance” it still has a long way to travel.

WELL DONE, YOUR MAJESTY

The first set of New Zealand honours bestowed by King Charles includes richly deserved recognition for three members of the profession.

Veteran political journalist Colin James is made a Companion of the New Zealand Order of Merit while investigative journalist Nicky Hager becomes an officer of the Order, and photographer and picture editor Rob Tucker is made a member.

Whether you’re a monarchist, a republican, or even a closet nihilist I’m sure you will agree that each of them has made a contribution to journalism which, as a country, we should acknowledge.