When Safety Becomes Policy Who Guards Freedom Of Speech - Dr David Harvey & Douglas Brown

We explore who gets to set the rules for online speech in New Zealand, from InternetNZ’s direction shift to the Broadcasting Standards Authority’s expanding remit. Dr David Harvey and Douglas Brown argue for reforms that protect freedom of expression while still addressing real online harm.

• what InternetNZ controls through the .nz domain and why that power matters 
• the post-Christchurch Call shift toward a “safe internet” narrative and why “safe” is hard to define 
• mission creep risks when unelected bodies expand into speech regulation 
• a proposed Media and Communications Authority with three divisions for news, content, and online harm 
• voluntary opt-in regulation backed by incentives such as journalist protections and safe harbour 
• why harm should be evidence-based rather than offence-based 
• governments and the urge to control the message across every new communications platform 
• the under-16 social media ban debate including enforcement problems, VPN workarounds, and privacy trade-offs 
• why overseas platforms can ignore local rules and what targeting jurisdiction might look like 
• how to support a stronger free speech voice in InternetNZ board elections through membership timing

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Transcript

Welcome And Guest Introductions

SPEAKER_04 0:00

Welcome to Free to Speak, the New Zealand Free Speech Union podcast. If you enjoy the show, subscribe for uncensored conversations and free speech news from New Zealand and beyond.

SPEAKER_05 0:11

Welcome back to Free to Speak. It's the Free Speech Union podcast. And I've got two great guests today that I'm really looking to looking forward to dive into a number of different issues about Internet New Zealand, the Broadcasting Standards Authority. We've got a whole new media communications authority, sort of a structure to talk about as well. And then also possibly talking about the online under 16 social media ban. So everything internet um we'll cover today and all in sort of 45 to 60 minutes. So um so buckle up. First, love to introduce my guests here. First, we've got Dr. David Harvey, um, a LLB, a master's of jurisprudence, a PhD, a retired district court judge, legal academic, and one of New Zealand's leading authorities on internet law and digital communications. David served as a district court judge uh for a few years, 1989 through to 2021, uh, if that's right, David, and um has taught it at Auckland University Law and Information Technology, written in um the author of Internet Law New Zealand, and also authored, well, helped draft the Harmful Digital Communications Act. So welcome, David. Thank you for coming on. Uh free to speak.

SPEAKER_00 1:29

Thank you, Jelaine. Pleasure to be here.

SPEAKER_05 1:32

We also have a fellow council member on the Free Speech Union here, Douglas Brown. He is a Canterbury-based, um, I don't know why that's important. We need to have a shout out to the mainland. We need to have a shout out to the mainland. Um, Canterbury-based barrister with over 20 years experience in both of criminal and regulatory law, practicing out of Christchurch, um is also, as I said, a member of the Free Speech Union Council and is also standing as our candidate for the Internet New Zealand board elections, which will be held later this year. But you know, we'll get to all of those sort of juicy details um in a little bit. But Douglas, thank you for um coming on pre-speak.

SPEAKER_02 2:11

It's a pleasure to be here. And I only have a master's, so I'm I'm not as well qualified as David.

What InternetNZ Does For .nz

SPEAKER_05 2:17

I'm not I'm not sure there are many people that are as well qualified as David to to speak on all of these topics, particularly. Um, but I will let me kick off with you, Douglas, just because I sort of mentioned the candidacy. Um, Internet New Zealand, you know, in a nutshell, why is it important? What does it do? And why is the Free Speech Union interested in a candidate, uh, you know, sort of standing the candidate, and you know, what you know, we'll get into what we want people to do, but give us the rundown.

SPEAKER_02 2:48

Internet New Zealand is a domain name registrar for the entire country, uh, uh the.nz domain. And so when you've got the internet, uh every country has its own domain name registry. Uh they are controlled primarily by uh private companies. Uh Internet New Zealand is an incorporated society. It's not run by the government, it's run by private individuals. Uh, and it controls the.nz domain. So any website that has a.nz after it, they are the registrar for. Uh they subcontract or allow other uh companies uh to uh uh let out the or control the uh selling of the names, uh domain names underneath them, but they are the overall authority for that. Uh and they have a a huge responsibility in terms of uh ensuring the uh proper use, uh stopping the misuse uh of the domain name registry uh or the domain names. Uh they are involved closely with government uh and with overseas domain name registries uh in terms of stopping uh cyber uh fraud, uh as I say, in proper use of the domain name domain names. Yep. Uh they uh take a very strong uh uh role in terms of uh ensuring that the internet is has uh strong uh access rights for everybody and that the internet itself, uh don in terms of the domain names and the ability to use them uh is open to everybody in New Zealand uh and is properly regulated. Uh the fact that it is a private entity means that uh it is uh controlled by the people who use it generally, and it's it's been for most of its life uh the preserve of geeks. Uh like myself.

SPEAKER_05 4:39

It's really technical, right? It's the it's the the the the backbone, the infrastructure, the sort of the you know, everything that makes the internet sort of hang together and accessible.

SPEAKER_02 4:48

It's it's how the two it's how to websites it's how websites connect to each other, it's how your internet, when you go in and load your browser and you want to connect to a website, it's how your browser connects to a website. Okay.

SPEAKER_05 5:02

So this is a really interesting question then because for such a technical um body that literally ke hangs the internet together. David, have you read the five year strategy that they've recently released on the direction that they're sort of going in? Um, you know, I suppose on the back of some of the constitutional changes um last year. Is is that something that you've I know you've been busy with a lot of other things, but is that something that you've made yourself familiar with over the over the last uh few weeks?

SPEAKER_00 5:31

Yeah, some of the the the direction of travel of Internet NZ is is actually quite in quite interesting because up until 2019, it was a techie organization. It was basically um involved in domain names as uh Douglas has has pointed out, and the technical aspects of of running the domain namespace. After the um Christchurch mosque uh massacres, um Arden got involved in the uh Christchurch call. Front and center with the Christchurch call standing beside her at many of the meetings of the Christchurch call was the chief executive of Internet NZ. Uh and that was an interesting shift because what was happening was that there was a movement on the part of Arduin and the Labour government to uh deal with um uh uh radical uh online speech, terrorist um related online speech. But the problem with that is that it it was uh ultimately much wider than that, and we have an example of that with with Arduin's comments to the United Nations about words being weapons. So what happened was that Internet NZ began to shift its focus from purely technical uh governance to um uh having a safe internet and that meant an internet where um uh you know there would be regulatory activity as far as speech was concerned. And when the um Labour government proposed its uh safer online services and web platforms proposals, um one of the uh organizations that was very much in favor of that particular proposal was Internet NZ, which was it was therefore straying into territory that it had it had had not been before. So what has been happening is that it has continued on that internet safe uh trajectory. And of course, you know, as a lawyer, and Douglas would appreciate that, uh, safe is a is uh and safety are very slippery words for lawyers, uh very, very hard to define. And um, you know, when I what I when I say that I feel particularly safe with a with a certain set of circumstances, other people may not, uh, it's extremely subjective. So the sort of shift, if you like, towards a sort of safer uh online space is well beyond Internet NZ's original range.

SPEAKER_05 8:20

There seems to be um a pattern we're sort of seeing, and and and not to dwell too too long on this, but um, you know, we've been dealing quite a bit with the broadcasting standards authority, you know, both in the media and with the comments from Minister Goldsmith about it. Um and so there there seems to be an interesting trend where um sort of unelected regulatory bodies, perhaps with their own remit, uh want to almost unilaterally sort of expand into new territory. And it feels as almost there's a little bit of a um in the five-year strategy, there were words like um a lot of words like false information, sort of disinformation, the government's lagging behind. And it felt like they almost had a moral duty to step in and um start being the arbiter of, I think, as you pointed out, a safe and and inclusive internet.

SPEAKER_00 9:12

Um some people's some people's disinformation might be other people's um um sort of difference of opinion.

SPEAKER_05 9:20

Uh it's and with something and with something so critical like the internet, I might rural lawyers or had legal training at some point, I I'm well recovering. Um, but um you'd want that to be a parliamentary mandate, you know, not actually just an unelected body that decides, you know, it wants to sort of regulate regulate speech in in in various ways. Um I don't want to spend too long on Internet New Zealand, but but what's what's um what's at stake here, Douglas, in terms of the the up-and-coming election and why should people care and enroll as a member?

From Tech Steward To Safety Agenda

SPEAKER_02 10:00

Look, just just move just uh going on from what David has said, that they've certainly learnt uh after what happened last year and our uh attempt to get two people on the board last year, they've learnt uh a bit of a lesson because the the language that they've used in the last 12 months has certainly dialed back on the use of misinformation and disinformation. As David said, yeah, the last two or three years have been very, very big on disinformation, misinformation, and the need to counter that. That has reduced a bit. It's still there. Uh, and certainly the intent, I think, is still there. Uh this year they've it's still there a bit, but less. Equity is much greater, uh, not equality, uh, not opportunity, equity. Uh, and that's certainly something that's interesting. Uh, the the uh teturiti uh uh uh aspect uh is that concerned uh people like David Farrow last year is still there. Uh what's important this year is the fact that there's still no real commitment from uh Internet New Zealand uh to recognize that their uh attempts to counter dis what they call misinformation, disinformation is in itself a threat to freedom of speech on the internet. And while they do the normal lip service uh to freedom of speech, to uh allowing views to be uh given online, uh what they've said in the past doesn't really come through uh in uh giving us confidence that that's actually what they intend to do in the future. Uh the the words don't match up. Uh Jonathan Ayling was elected last year onto the board and uh will be as one person. He's fighting a battle as a lone uh supporter of freedom of speech. And uh what we think as the freedom of speech freedom freedom of speech supporters that it's important that he have support. Uh and so that's why we think it's important that people, uh members of the Free Speech Union or supporters of freedom of speech actually do continue their membership uh and allow us to continue to try and get people on the board who are supporters of freedom of speech and who think that Internet New Zealand should uh have a focus on enabling allow um supporting an internet that allows people to uh put their views forward in a manner that is uh measured, uh free from violence, but uh not likely to be censored or labelled misinformation or disinformation by the very people who control the online access. And that that's in a nutshell what we're trying to do.

A New Media Authority Proposal

SPEAKER_05 12:35

Yeah, no, and it's um it was the words included of false information, uh misleading or even disinformation, but no no nod to freedom of speech, no nod to the New Zealand borer rights, no nod to even neutrality of of position that that was particularly concerning, which definitely brings us to to, I guess the key of this podcast for me anyway, is like who gets to decide um what speech is acceptable online and um and by what authority. And um never to let um uh a moment pass without without a good proposal. David, please um take us through your media communications authority, you know, why you think it's necessary and um and why it should be this this framework that gets to decide online speech.

SPEAKER_00 13:29

Okay. Um well the what has prompted it uh was the um broadcasting standards authority's decision that the platform um was within its particular remit. Uh and and I argued against that. Um so some might say that I'm throwing the toys out of the cot in proposing another model, but uh what I'm doing is picking up on calls that have been made by a number of people, including New Zealand First, um, and indeed recently um the Minister of Broadcasting himself, Paul Goldsmith, in um calling for uh a revisiting of the broadcasting standards authority and perhaps even its abolition. So that's fine, uh, not a problem. Question is if you're going to abolish an organization like the BSA, uh, what do you replace it with? And the concern is that uh take away the BSA and you have a yawning gap as far as um media and communications regulation is concerned. And whenever you leave a yawning gap, nature abhors a vacuum and politicians abhor a vacuum even more, and uh they will seek to fill it. And the problem is that there are a number of people with a number of points of view that would prefer to have a um a hard-headed approach to online content and media regulation, whereas, in fact, what I'm uh what I'm proposing is uh a softer uh type of model. The reason that I say that reform is necessary is that we have um media regulation scattered across a number of organizations. Um there's the Office of Film and Literature Classification, which deals with banning stuff, objectionable material. No problem there. That's all set out in statute, and the meets and bounds of what they are entitled to declare objectionable are well known. You have the New Zealand Media Council, which is a voluntary uh organization uh that deals mainly with uh what could be called mainstream media. Uh, you have the Broadcasting Standards Authority, which deals with broadcast media. We have the Advertising Standards Authority, which deals with advertising, and then you have the Harmful Digital Communications Act, which deals with harmful stuff. So what I am proposing is a unified structure, if you like, and the media regulation um reforms that I have put forward envisage uh a media and communications authority, which is div, which has three particular areas of jurisdiction. And this is all very top-level um proposal at the moment. It I haven't gone into any detail. Um first thing is that there is a division for news media standards, which effectively would take over uh the Broadcasting Standards Authority and the News uh the New Zealand Media Council uh activities. Then there is a content standard division, which would deal with non-news content and uh internet-only broadcasters and on-demand services that have a New Zealand presence. And then there is the third division, which would deal specifically with online harm. But there are very important factors involved in this particular model. The first is it is grounded on freedom of expression. And freedom of expression is seen as a foundation stone of the whole thing. The second thing is that uh submission to the news media standards, to content standards are all seen as voluntary. So there is no compulsion, because at the moment, of course, with the broadcasting arrangement broadcasting standards authority, there is compulsion. You you you have broadcasting uh spectrum, uh, you're you're subject to the act. So there would be no compulsion whatsoever. It would all be voluntary. Now, of course, the opposite argument to that is, oh, well, if it's going to be voluntary, nobody's going to join up. Well, yes, they will. Because what I'm proposing is that those who submit to the jurisdiction of the Media and Communications Authority would receive certain benefits. Now, as it happens at the moment, if you're a member of the New Zealand Media Council, you attract the advantages that a journalist has. You can report on court proceedings, you can report on parliament, you can sit in court when it's a closed court and listen to bail applications or suppression arguments or things like that. And furthermore, you get you get specific defenses available for things like defamation. And in addition, uh, if somebody from the authorities comes calling and says, tell us who told you that, you can say, uh-uh, journalists privilege, and uh nobody can compel you to uh disclose your sources, nor can they punish you for failing to do so. So there, those are some of the attractions for journalists. But what I'm proposing in addition is that those who sign up to the uh various divisions would attract the benefits of a safe harbor. So that as long as they complied with the safe harbor requirements, and we've got an example in the Harmful Digital Communications Act, as long as they complied with the safe harbor uh provisions, there would be li there would be uh immunity from suit. They would not be liable civilly or criminally for material uh that they published. So that would be an attraction to people to to join up. And that basically is the structure. Um the the there are the three divisions. Um there would there they are primarily reactive uh in the sense that uh for online harm, for example, with an expanded definition of of what amounts to harm um or harmful content, um there would be a situation where it it wouldn't, nobody would step in and say you've published something that was wrong, but it would work only on a complaints basis, which is rather like the Harmful Digital Communications Act. So it becomes a what what I call a reactive model rather than a proactive model or a prior restraint model, which is what censorship is all about. The content standards uh would be set by the industry itself. Uh although if for any reason those content standards couldn't be reached or achieved, uh then a regulator could step in and define particular systems.

SPEAKER_05 20:20

So you're saying that the media would set the content standards for radio and you know the the the different broadcasts that they would go on.

SPEAKER_00 20:29

Okay. You see, well, the thing is that, for example, when you look at the New Zealand Media Council, they have uh uh uh I think it's 12 principles um that are available on their website. Now, those principles are reflected in the various codes that the Broadcasting Standards Authority has in slightly different language. But the principles remain the same: fairness, balance, um, honest reporting, and so on and so forth. Um so really sort of importing it, importing those standards in is not going to be difficult. It's not going to be complicated. But the the whole issue as far as um involving uh any type of interference with content would be based on harm, not safety, not offense, but harm. That is definable, demonstrable, adverse effects that can be established by evidence. At the moment, it's um uh harm is divine defined as serious emotional distress. Very, very subjective. Uh it is capable of being broken down, but you don't even need to have uh expert evidence to establish serious emotional distress uh under the law at the moment. It's just it can be uh a combination of factors um as a result of something that was said uh online. But that Briefly uh is is is it. Um and and it is an umbrella organization in the sense that it doesn't deal just with mainstream media, it deals with um the the the other forms of content, uh non non-news content and then sp specifically harmful content. And there would be a place for some of the uh present organizations, such as NetSafe, to act as a triage uh agency uh to ensure that that um anything that was going to um uh be adjudicated upon uh crossed certain thresholds.

Safe Harbour Incentives Explained

SPEAKER_02 22:39

Why is this preferable uh to say just folding everything into the media council?

SPEAKER_00 22:46

Well, you could fold everything into the media council. Uh you could fold content into the media council, and you could fold harm into the media council. Uh the only problem is that the media council as it stands at the moment is um exists from its own budget. Um its budget uh is as a result of contributions from its various members. Uh it runs on a shoe on a shoestring. Um I mean, I I can't remember what the broadcasting standards authority's budget is, uh, but it's in the millions. If if that money could go into the media council, um that would be fine. The media council could be uh the media and communications authority under my proposal with three divisions news media standards, content standards, and online hub. Whoever takes it on, it it it's it it is irrelevant. But as long as the structure is there, that's the main thing.

SPEAKER_02 23:48

And the funding sources are the same, just merged, or a separate funding source from the government?

SPEAKER_00 23:54

Uh well, you want to be careful about that.

SPEAKER_02 23:56

Uh yeah, that's what I'm asking for. It's it's because you want to be able to do that.

SPEAKER_00 24:00

Funding for the broadcasting standards authority comes from uh those who are regulated, comes from broadcasters. Which is those and you're looking at funding of millions. You're looking at funding of millions. So um transferring that funding to the Media and Communications Authority or the New Zealand Media Council or whatever, uh is a simple matter. It would be part and parcel of the abolition of the BSA.

SPEAKER_02 24:27

Except you've got two divisions which are both voluntary, uh, which means that the funding is not necessarily going to come if nobody joins up.

SPEAKER_00 24:36

But that's the the point that I was making was that it's it is in everybody's interest to join up. To join up, yeah, fair enough. Exactly.

SPEAKER_02 24:44

Because there's protections there that come with it. Yep. Exactly.

SPEAKER_05 24:48

Um for for someone that's not maybe as au fay as others uh in some of the technical aspects of the law, can you just expand on Safe Harbor for me in terms of um is that just that they're a publisher, they don't they won't be prosecuted for any of the content under it or well under the under the Harmful Digital Communications Act, where that there are provisions relating to Safe Harbor, uh and under the Copyright Act, uh there are also provisions for Safe Harbor.

SPEAKER_00 25:19

If a situation arises where there is a challenge to content and the publisher of that content, for want of a better word, the publisher of that content undertakes a certain process, but by virtue of undertaking that process, they get protection. That uh it's a a lot more complicated than there. And of course, the thing is that the that the uh those who want to have a safe internet, uh so-called, don't like safe harbors. Um, and in fact, there is American legislation, the Communications Decency Act is section 230. 230, which which is the safe harbor provision that many people are saying shouldn't be there. It's outlived its usefulness. I say the safe harbor is very, very useful because it provides an incentive for people to submit to regul to submit voluntarily to regulation. Now, of course, the uh the opposite argument could be, oh yeah, but that's a that's a stick and carrot type of argument. If you don't join up, you're gonna you're going to be liable. Okay, that's fine. If there was no regulation, you'd be liable anyway. Uh, but in this way, um, we're we're providing a structure where there would be uh immunity or partial immunity from liability. I'm not saying it would be absolute, but partial immunity.

SPEAKER_02 26:42

And the risk of not having the stick and carrot approach is an over cautiousness, which means everybody loses out. That's right.

unknown 26:49

Yeah.

Avoiding A Ministry Of Truth

SPEAKER_05 26:50

And for people that and a lot of our supporters and on our council were sort of maybe naturally allergic to, say, a super regulator, you know, like our absolute nightmare scenario would be, for instance, a um a government department or a government agency that was, you know, the the the equivalent of the Ministry of Truth or taking on the super regulator role. Now, given what we've seen with Internet New Zealand and the BSA, almost seem to want to expand their remits. You know, you sort of build something and it takes on a life of its own. What is the um why should we trust this structure? You know, what are the what are the the fail-safes in it that that keep it from being the Ministry of Truth?

SPEAKER_00 27:33

The first thing is that it's independent. It is completely independent. Um, the second thing is that it's it's voluntary. The third thing is that it's grounded and and founded on um the importance of freedom of expression. The New Zealand Media Council, for example, is respected because of its independence. Um the the BSA is seen as as part and parcel uh of the state and arm of the state. But that isn't justified in in my view. But um the the any involvement by the state in terms of administration, governance, or anything like that is anathema to um communications regulation because it means essentially that the state is going to get involved in the business of communications, which it is already is in this country. And furthermore, uh there is always going to be mission creep. And a classic example of mission creep is the broadcasting standards authority's decision on the platform.

SPEAKER_02 28:44

Yeah, that's very, very true.

Why Governments Try To Control Speech

SPEAKER_05 28:45

Yeah. Um, that's exactly right. And uh apart apart from Mission Creep as well, um, what I'm what I'm really concerned about is the latest COVID report, you know, it sort of came out and it actually picked out that the that the podium of truth, you know, sort of the the government controlling the communications and um sort of inferring that it was the sole arbiter, was actually it it produced the reverse in terms of trust in the information, in terms of levels of distrust of what was being presented, um, you know, and and and from the medical community and and and et cetera. Yet there seems to be an enormous push, and we see it all around the world, for the governments to to sort of step in and uh and want to control the communications to keep the internet safer from whether it's under 16s, whether it's just you know everyday people, there's a real um I make there's a real movement, it seems, at the moment that is worldwide. Um when all of the UNESCO reports and everything else talks about its um civil-based initiatives, it's community-based initiatives that that you know are best for growing trust, um, are best for even discerning what is dis or misinformation, like sort of the Taiwanese models. Why are governments so intent on coming after communications?

SPEAKER_00 30:15

Well, um, because it's that's the message, uh Jelaine. Uh it's as simple as that. They want to be able, governments want to be able to control the message. And the problem that they have, and and this is, I mean, you look at you look at regulatory structures in Australia, uh, in the United Kingdom, and the EU, uh, they are all aimed at the platforms. Why? Because the platforms are a medium of communication. And the platforms, in some respects, challenge uh the message, if you like, that the government would like to put across. I mean, I read an editorial in the Herald this morning that actually uh said, you know, if somebody from the government comes along and tells you to leave your property because it's unsafe, go. Um, pack your bags and leave. Don't decide, don't, don't make your own decisions. That's not community spirit, that's individualism. And I thought, wow, you know, here we go. Um the the the the individual's choice uh to embark upon a particular course of conduct uh has to give way to some collectivist approach. And that's the thing. The government wants to control the message, and that's why you have these various structures that are set up. The Australians, for example, consider that the platforms are anathema. They they want to go after Facebook and Google and and and the others. Uh the Europeans are more concerned with the systemic effects. Uh the Brits uh are saying there ought to be a duty of care uh on on the platforms to make sure that they uh they're not uh creating an unsafe environment. So um yeah, it it is all about the message. And um that that that's the truth of it, uh sad to say. You know, New Zealand with the podium of truth was you know that was that was unusual because um it was a very uh very correct uh expression of it. But the way in which the messaging was controlled, and indeed the way in which the messaging continues to be controlled, even by the current government, you know, oh yes, well, we are doing well, aren't we? New Zealanders, you know, uh good New Zealanders will do this, or good New Zealanders or good Kiwis will do that. Yeah, it it's it's that sort of all-embracing collectivist approach to things, which completely ignores freedom of choice and therefore freedom of thought.

SPEAKER_02 32:54

You know, it's an interesting point that you make, David. Um, in fact, in the regarding the government's desire to control the platform. Because if you go back, uh at every major change of platform for communication, uh the government has stepped in and said, How do we control this? You know, the the printing press hit the UK. That was not PhD topic, Douglas. Oh, well, there you go. The the Tudors, the first thing the first thing the Tudors do is say, we control this, we grant licenses, the privy the um the uh uh Star Chamber uh brings people in. Uh if they're it it's not it's not the topics that are controlling, it's the spread of news, false or true. They are controlling it. Uh and that goes through after the American Revolution. Uh the Sedition Acts, it doesn't matter whether things are true or not, it's whether it harms the government uh and they're prosecuting on that. Uh radio comes in uh after Marconi makes it popular impossible in a wide wide uh range. In the States, in the UK, at first uh radio licenses are there simply so that radios are not competing with spectrum, but very quickly it turns into we need to decide whether you should have a license, not oh, you can have this part of the spectrum, and so it's not infringing on that person's part of the spectrum. It's should you have a license? And that's where the pirate radio stations come from. Well, it's the same with TV. In 1946, the government took over the whole darn thing. You see what I mean? Exactly right. Same with TV, and now here we are with the internet, and and the government is is late to the party because the internet's now coming up 30 years old, at least in the public domain. But here they are, and and it's not about uh you know safety for children so much. It is, as far as I'm concerned, and David you can disagree with me, but it is as much about gatekeeping what is on the internet, who is accessing the internet, as it is about safety for children. That that's a secondary thing as far as I'm concerned. And and this is the important thing. Uh it's it's it's why Internet New Zealand needs to have a stronger focus on freedom of the internet. Uh, and it's why, you know, the BSA, for example, and its overreach with the platform needed to be pulled in. It's why David's proposal is so important, as far as I'm concerned, or something like it.

SPEAKER_00 35:05

Well, when I joined when I joined Internet New Zealand back in the days when dinosaurs ruled the earth, um uh the the the message was a free and open internet. Yeah. That was uh exactly. That was the objective. Free and open internet. Great, terrific. I still should be that still do. Exactly.

Under-16 Social Media Ban Tested

SPEAKER_05 35:24

Um, and especially at the Free Speech Union, you know, one of our fundamental sort of principles of freedom of speech is the ability to criticize the government, right? The ability to criticize anyone and anything out there, which means that especially having a government that controls communication platforms, controls messaging, you know, makes your your speech um off limits um or sort of drives it underground, etc. You know, that is a complete anathema to freedom of speech and um, you know, and what we stand for. Also, I think, you know, that you need to have robust freedom of speech and diversity of of opinion to have a resilient and flourishing community, right? You need to be able to engage, you need to be able to engage with differing views and and sort of differing discourses. So, so um as as you say, it's Douglas, it was great to point out this is not a new thing, although the internet is new in social media to an extent, but um Jacob Mitchell Gamer's book, like sort of the history of free speech, really traces that um very well. I'm not sure if he's picked up on your PhD thesis, um, David, but essentially that the reaction to new information, new communication means has been extreme often and for years and years, and has been the result of bloody conflicts and you know, um new new countries have been born sort of out of it. Um so um so this is great. We've got a proposal on the table. I'm hearing a lot. Uh Luxon had a press conference a couple of days ago, um, you know, very much talking about the social media ban um for under-16s. Um I'm not at all saying that there is no harm done online or that social media is any good for anyone, you know, quite frankly. But um it definitely seemed to be his um, you know, he was firm that legislation would be um introduced prior to the election. Um, very much it's it's it's to help the kids. But I'm like, I'm I'll throw this out to you both. Like, he said that the Australian model was a good model and we should follow that because we're doing something that's good for the kids. That's not what I'm seeing in the media out there. I'd I'd love to get both of your opinions on on that. I just don't think that's an accurate statement. You're both smiling. Uh who wants to pick off?

SPEAKER_00 37:48

You go. Well, yeah. Um the the Australian the Australian model is is an interesting one. And it's it's it's not only um it's not only in Australia. That that the idea of social media bans is sort of creeping around around the world. First thing is it's it's it's a quick and dirty solution. Um it's it's easy, it's easy to mouth on about. Oh, we'll just ban social media. Uh it's a little bit different when it comes to enforcement. The problem with uh enforcing so the social media ban in Australia is that many under 16s are still accessing the platforms. Um and they're not they're not using workarounds or anything like that. They're just clicking in and away they go. The other thing, of course, is that it's very easy to circumvent. Uh the first, the first thing that that the first lesson that you learn when you when you're dealing with technology is that the answer to the machine lies in the machine. Um virtual private networks mean that a person in Australia or New Zealand can spoof um uh their uh internet protocol numbers so that it looks like they're in Los Angeles or or um or Santiago, Chile or somewhere like that. So it there there are easy ways to work around it. Now, the Brits, of course, have got the answer. We'll ban virtual private networks. Well, sure, you know, okay, go for your life. And and the the thing is that for every for every prohibition in the electronic and digital space, there is a workaround. So the question is, is it enforceable? But the other thing that is interesting about this is that there is there has been a concerted effort on the part of the before 16 movement, led by Cecilia Robinson, about the harm that is caused by social media. And they've been able to marshal a whole lot of evidence about this, that, and the other. But on the other hand, there are equally qualified people who say this is not the way to go. Because what happens is that over a period of time, a 13-year-old begins to develop the necessary skills to navigate around social media so that by the time they hit 16, they're fairly au fay and savvy about what's going on. They know what to go after and what to avoid and all the rest of it. What this proposal does is that it takes away that growth and learning development. It's kind of like um tying somebody's legs up for a couple of years and then suggesting uh after a couple of years, oh, well, now you can get up and walk. Well, it isn't like that at all. This is developmental that you've got to do. So that, you know, there are there are many, many arguments against this. Yes, of course, there are elements of harm uh with social media, but one of the things that we really need to think about is why are we letting our kids get all anxious about this? Why aren't they more resilient? And this is something I think that families should be looking at. Yeah. That families should be talking to their kids about and saying, well, look, you know, you don't take any notice of that idiot. Um he he's a fool. Uh we know uh what you're like and we love you, and that's the main thing. Um, but no, of course, parents want to be friends with their children these days rather than parents. So the setting of boundaries doesn't happen. Yours, Douglas.

Enforcement Loopholes And Offshore Sites

SPEAKER_02 41:35

No, no, no, that that and that's a good point. And and it comes back to the fact that the government, uh especially these days, in the last couple of decades, uh, is trying to be uh in loco parentis on many things. Uh and uh a lot of it's devolving onto the schools, where the schools are now having to raise kids in many areas. And and teachers are saying, you know, well, we shouldn't have to be toilet training kids, we shouldn't have to be teaching kids how to tie their shoelaces and and and various things that the parents are supposed to be doing. But that's that's what happens when the state says to the parents, uh, we will do that for you. Uh is is that's what the schools do. Uh and there is a large element of the state taking over. The state really does need to say, well, we're going to uh give the parents the information, the parents need to give pass that information on to the children in the manner that they see fit. Uh there will be some bad parents, there will be some superb parents, and there'll be some parents in between. And that's what makes a society great, is that that gamut of of parenting uh and every family doing uh raising children and being a family as as suits them best. Uh that's what makes a society wonderful um and interesting. Uh in in terms of the social media ban itself, um it really is Sir Humphrey's um politician syllogism, you know, uh we must do something, this is something, therefore we must do this. Oh, it's a quick win. It's a quick win. It's a quick it's a quick win. Uh and and and it's and it's a win that will not work. Uh it will fail, uh, as anything like this will fail. Um because uh the that as David said, the workarounds are in the machine. Um the the tech cannot work. And it comes in, and it's a it's a question I was going to raise with David, actually, in um relation to um the division three question uh of of uh the proposal is what do you do about the four 4chan question? Um, you know, Ofcom in the United Kingdom is running uh not a social media ban, but what is actually a more uh heavy-handed version of the social media ban. It's not it's an explicit social media ban, it's a duty of care, really. Yes. Um and and they've written to Ofcom and said, You are a regulated entity and you must uh put a uh uh um a reasonably strong uh um entry page on there that that that kids that people under the age of 16 can't get past all that I mean in shorts only adults can get in. And uh 4chan said, we're a United States webs um company. Uh screw you. In fact the they said the lawyer sent a fantastic um response which was here's a picture of a uh was it a hamster? Um I think uh for your efforts uh and no um and then start in pseudoff com in um in the US uh and they're getting uh hit again and they basically said try it again we'll send you another picture uh maybe a bigger one yeah off the the the UK model is is um pretty heavy handed very yeah um and that's the problem that that the under 16 proposal that Australia's got and here has got the same thing um 4chan meets all of the criteria for um the Australian model meets all of their criteria for here they're not based here but they qualify but but what are they going to do when they go to 4chan and 4chan says no we're not complying and how do they get around that um but I notice David also in your in your proposal um what what is the the pol what what happens there as well if in that situation because I can't see how that gets addressed either.

SPEAKER_00 45:21

Well there's there's code there's code development as far as on I'm I we're talking about online heart um there are two there are two ways of dealing with it. The first thing is that you deal with you deal with stuff that's happening here. The alternative is that you develop an extraterritorial jurisdiction and we we're really drilling down into deep legalities here. But essentially I'll give you an example I'll give you an example um back in the 2000s there was a guy in Melbourne um by the name of Gutnick and he was the subject of an article in a magazine called Barons that was put out by the Wall Street Journal put out by Dow Jones. Now uh he commenced proceedings in the courts in Victoria in defamation against Dow Jones. Dow Jones said you can't sue us um this content originated uh in from a server in New Jersey and it went all the way to the High Court of Australia and the High Court of Australia said right jurisdiction attracts where the damage is done the damage to Mr Gutnick's reputation was done in Australia. Therefore Dow Jones uh was subject to Australian jurisdiction so that's what you call targeting jurisdiction so that if for example 4chan is sending uh signals to New Zealand there is a possibility using a targeting jurisdiction approach and you might even have to have statutes dealing with this that you've got hail and before a New Zealand court.

SPEAKER_05 47:11

Now whether or not they come is another matter but you know if they if their if their directors if their directors wanted to uh to visit Queenstown for example for a weekend skiing they might find themselves in some difficulty right um what what um not what annoys me sort of about this um this whole sort of discussion around the under 16 sort of social media ban is that it really does feel like um it's a performative or sort of virtue signalling piece of legislation you know as opposed to define the harms we know that they're out there there's illegal activity there's child sexual abuse activity go after those specific harms you know define it target it and go after them we know blanket bans don't work I'm like what are they the age gating Substack now you know that that that pernicious long form essay uh writing that is full of Nazis don't you know that that that is taking over Australia but Substacks by means of communication.

SPEAKER_02 48:13

It's full of Nazis David because apparently everybody on the right's Nazi so I can think age verification is on Substack in Australia because they do qualify under the Australian you know definition in terms of the comments and and the interaction that that that can go on with that.

SPEAKER_05 48:30

And so it does feel really performative um and it feels like I I think Douglas your your Sir Humphrey example was unfortunately bang on. We must do something this is something let's do this we can do better surely it's a vote winner.

SPEAKER_00 48:49

Yeah yeah um 70% of uh those asked uh in New Zealand think that this is a good idea. So 70% are prepared to cede control uh of this aspect of their children's lives uh to the government but sh we shouldn't be surprised at this because in New Zealand the government is the first port of call not the last.

SPEAKER_02 49:16

Well what's interesting is when we did the polling on that as we came up with that answer in the first question as well but when you drill down and you ask follow-up questions uh into what that actually means then the support for it drops off a cliff. Yep um and so yeah it's it's it's it's it's popular on first glance.

SPEAKER_00 49:37

Yeah um but then it's not yeah but it's an easy it's a the thing is it's an easy win. Yeah.

SPEAKER_05 49:42

Yeah yeah no and and you're right it it is a vote winner and it and it speaks to to the parents and it feels like they're doing something to to to help the children. But Douglas is right it when we drilled down and sort of said well in order to age gate the internet you have to age gate the whole internet. You know there no one has come up with a um with a solution that um that that only targets 16 and under or 15 in some countries or maybe 18 in other countries type thing.

SPEAKER_00 50:12

And it sounds like you have to age gate everybody everybody. Yeah I mean I I I get very I get very flattered when they call over the supervisor when I'm buying a bottle of wine at the supermarket.

SPEAKER_05 50:25

Do I look like I'm hating I I think we had a uh an article uh around in our in our chat group this morning on the free speech union where um kids were drawing moustaches on their faces and pace and passing age verification It works.

SPEAKER_02 50:41

It works. If the machine if it's good enough the machine can't figure the difference out. No exactly so and and that's and that's the problem that we come up with as David said you know you're still relying on machines and because you don't have individual people looking at each and every image and each and every video that they're requiring to people to upload um in Australia uh it's going to get spoofed time and time and time again.

SPEAKER_00 51:06

Yeah well I mean look artificial intelligence can make an image of Trump um so that he looks like Jesus Christ.

SPEAKER_02 51:13

Well this is it well grok's now offering to tell to tell you whether you look good in a pair of sunglasses. Oh okay so it's not long before it's going to it's going to be allowing you to to to you know make you look five years older. I don't need Grok to tell me that I just put on a pair of sunglasses and look in the mirror.

InternetNZ Election And Next Steps

SPEAKER_05 51:30

Yes but you don't need to be in the shop now you can literally take it from online who needs who needs to leave the house exactly who needs to leave the house um look this is it it's fascinating it's all around the world it's literally sort of the soup we're swimming at in at the moment you know the INZ the BSA the social under the the under-16 ban that's sort of going on um you know wondering who is going to who is going to be the arbiter of online speech. David I I I honestly can't thank you enough. There there are definitely some issues you know I have some issues in here in terms of would really like to push on the definition of harm would really have like to have a good look at the defenses that are proposed there and and push on some aspects. But the fact is that we've got something tangible that um sort of collates the disparate um organisations and approaches that we've got at the moment, keeps it out of a government agency or a state controlled Ministry of truth and an onse I think is is a is a is a decent starting point for for a discussion and something on the table to to um to examine. So you know have you had any feedback?

SPEAKER_00 52:42

Yes I have um I in fact I had I had a very very interesting hour and a half lunch uh today with somebody whose whose views I respect enormously um who loved the idea of the news media standards and so on and so forth. But little bit hesitant a little bit hesitant about the umbrella approach until I sort of stepped him through it. And and I don't think I don't think he's completely convinced um but uh and and there's another there's another media expert um who's had a look at it and says well you know from an overall structural point of view it's okay I uh look I agree about the harm definition um you know that that requires a bit of work but what I wanted to do was to set an agenda for a discussion yeah um and uh and and this is it now copies have gone out to uh Mr Goldsmith to Mr Peters to Mr Seymour to uh Jenny Marcroft uh and to a number of other people as well including Free Speech Union uh we'll just see how it develops uh I think I can confidently tell you you haven't heard the last of it. Good.

SPEAKER_05 53:59

And I like it. No, exactly and also on that note um you know we've been discussing we were talking about trying to gather a sort of a a symposium to discuss an online approach right in terms of what makes sense in the current environment and uh and I think this is a great um uh foundation uh piece to add to that discussion and hopefully we'll be able to pull that off before you go cruising uh later later this year. July end of July end of July yeah trump trump willing the the the world the world willing it's a sailboat right like it's wind powered no no no no no no it's it's uh it's the cruise cruise ship multi cruise you'll need the fuel then a small a small cruise ship 600 people there Greek islands oh nice that means warmth in the middle of in the middle of winter um and so um look honestly last sort of comments from each of you I also also just did want to again mention you know we are um concerned about internet New Zealand in terms of the mission creep um we we're encouraging people to join up as members you need to be a member for uh what is it now Douglas you you take me through the um the requirements for members you need to have been a member for at least three months before the AGM yep got it and and I think voting that's about now yeah voting begins in um I think middle of July early August so we've probably got another couple of weeks for people to sign up if they're interested in in having a uh a a free speech voice on on it on the Internet New Zealand board there's what are there nine positions there um so it's not a takeover by any means no not at all not at all the the other thing to remember is that if if your membership has lapsed you've got a three month grace period uh to renew and it's only$21.

SPEAKER_02 55:55

Yep.

SPEAKER_05 55:56

There you go. I've renewed um David last words on the media communications authority I'm like we're we're we're already we're already pretty you know we're not fans of it but we're absolutely happy oh Douglas is a fan he's declared early I'm very happy it's on the table to be discussed.

SPEAKER_00 56:14

I like it yeah that I yeah I'm I'm it it's on my sub the it's on my substack the detail proposal is on my substack I'm very happy to engage uh and and discuss it uh with anybody I hope that it gets some traction in Wellington you know I would I would love for that for that to happen um because I think it is important especially since they're talking about getting rid of the BSA that there is a viable alternative that is workable independent and uh and and furthermore that is based on on on principles uh and is founded on freedom of expression um that that we can go forward with this and and try and keep the government out of it as much as possible.

Closing And How To Engage

SPEAKER_05 57:04

Perfect I think great words to end on Douglas David thank you very much for participating in the Free to Speak podcast um this will not be the end the the last that we hear of this proposal I I'm certain so uh thank you all and thank you for tuning in thank you Julie thank you for listening to Free to Speak.

SPEAKER_04 57:25

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