Negotiation is the new black – the “Approved Agency”
The Law Commission’s Harmful Digital Communications briefing paper recommended an “approved agency” as a pre-tribunal step (which they suggested NetSafe for). The approved agency is part of a process designed to make solutions more accessible, and to reinforce the proposed law changes. This is how I envisage the Approved Agency operating, and how I see it fitting within the Harmful Digital Communications equation.
Meet Person A. In most respects, Person A is unremarkable. They really like the way the internet has improved previously boring tasks. This includes: shopping, banking, and viewing their friend’s holiday photos.
Along comes Person X. Person X creates a blog accusing Person A of being, or doing, a number of unpleasant things. In most cases, Person A will know who Person X is. However Person X uses (foreign) Corporation G to host a blog under a pseudonym.
Person A takes offence at the content, and places a complaint with the Communications Tribunal.
The complaint arrives at the approved agency. The first task is to decide if it is actually a matter for the tribunal. Some complaints will not be offensive enough to warrant attention from the tribunal. The approved agency can still advise on any other options available. For example, many social networks have rules that will cover lesser offenses than the tribunal.
Some complaints will not be appropriate for the tribunal because the offence is not within the tribunals powers, or there are better options for Person A.
The remaining complaints would normally flow through to the Tribunal which would then make a ruling.
Even with a lightweight Tribunal (and especially without one), enforcement of internet offences can be expensive. Ultimately, if you can convince people to do the right thing – you save money. Education is your number one cost saving option. When that fails, negotiation becomes your best option.
An approved agency that understands the likely outcome of a tribunal hearing can attempt to negotiate the same outcome without the hearing.
The approved agency communicates with Person X via Corporation G. The approved agency need never even know who Person X is. It may need the co-operation of Corporation G to pass on the message.
In that message, Person X is presented with the facts. They get told the Tribunal will most likely order the content removed and not posted anywhere else. Person X is welcome to proceed to the Tribunal, but chooses to remove the offending content voluntarily. Person A and Person X are spared the Tribunal hearing. The complaint is closed.
This is cheaper and quicker than getting a Tribunal ruling, and a fraction of the cost of getting the Police to take Person X through the courts or Person A taking civil action. It is also the best solution for Corporation G who would otherwise receive requests for information about Person X from enforcement agencies (which can put Corporation G in a difficult position).
The likelihood of the outcome for Person X if they do not take remedial action is a critical part of the negotiation process. Without the very real likelihood of further action, Person X is far less likely to be motivated to voluntarily do the right thing.
Without the Tribunal, Person X will quite rightly assume that the likelihood of successful action being taken against them (via civil action or police prosecution) is low – and the Law changes proposed in the Briefing paper will be far less effective.