gisw13_chapters

• Contain a matter that is published in breach ofconfidence• Incite or encourage anyone to send a messageto a person with the intention of causing thatperson harm• Incite or encourage another person to commitsuicide• Denigrate a person by reason of his or her colour,race, ethnic or national origins, religion,ethical belief, gender, sexual orientation or disability.Remedies will include an order that internet contentbe taken down (the order may be against a perpetratoror an internet service provider “or any otherinternet intermediary”); that the perpetrator stopcertain conduct; that a correction be published;that a right of reply be given; that an apology bepublished; or that the identity of an anonymouscommunication be released. A new criminal communicationoffence is to be created that entails“using a communication device to cause harm”. 4The new offence will be punishable by up to threemonths imprisonment or a fine of USD 2,000.The stated purpose of the Objectionable Publicationsand Indecency Legislation Bill is to increasepenalties for producing, trading or possessing childpornography. The bill purports to achieve this byincreasing the penalties for distributing, importingor possessing “objectionable publications”. Apresumption of imprisonment will be imposed forrepeat offenders and a new offence created of exposinga person under 16 to indecent material.“Objectionable publication” is comprehensivelydefined in the Films, Videos, and Publications ClassificationAct 1993. It includes a number of criteriaand a general consideration of material which “describes,depicts, expresses, or otherwise deals withmatters such as sex, horror, crime, cruelty, or violencein such a manner that the availability of thepublication is likely to be injurious to the publicgood.” The new bill has raised concerns becausewhile it purports to relate only to child pornography,by establishing a scope that incorporates objectionablepublications per se, in fact it will capturemore than this, including, for example, lawful adultmaterial.Taken together, these bills have the potentialto curtail, or hinder, the exchange of informationonline and raise at least three significant issuesfor feminists and for women’s rights and freedoms4 Ibid., para 76, p. 11.in the digital environment. The first is the transferof responsibility for determination of whether ornot a communication is objectionable, offensive,indecent or obscene, or causes harm, from the onlinespace to a new offline state agency. The newagency’s mandate will allow for state censorshipof online communications. Increasing state censorshipis always a concern, especially for women andsexual rights advocates.For example, women, young people and lesbian,gay, bisexual, transgender/transsexual andintersex (LGBTI) identities and their bodies havebeen, and continue to be, the site of moral andpolitical battles about decency and indecency, objectionand repulsion – bodies are policed, sexualmorality is subjective and highly contested. Thereis a risk that increased censorship will decrease ouronline presence through the chilling effect of thepossibility of complaints (particularly if maliciousor mischievous). In addition, the state may further“police” our gender and sexualities by censoringother ways of being that are normatively consideredobjectionable.In addition, missing from the discussion onthe bills is any analysis or concern about how thebills’ contents or processes acknowledge or complywith international standards and norms relating tohuman rights and internet freedoms. For example,the United Nations Human Rights Council has confirmed,through a resolution signed by 85 countries,that the same human rights standards and normsapply online and offline. 5 But the New Zealand governmentdid not sign the Human Rights Councilresolution and has not referred to it in the developmentof the new bills. In addition, while the NewZealand government has been active in reportingto the United Nations Committee for the Eliminationof All Forms of Discrimination against Women(CEDAW) and to the Commission on the Status ofWomen on progress in implementing the BeijingPlatform for Action, there has been no direct focuson women’s rights and the internet. The absence ofany such analysis is deeply concerning when one ofthe rationales given by the government for the bill isthat it will better protect women.Advancing women’s rights requires a transformationof social relations in the online and offline5 Human Rights Council (2012) The promotion, protection andenjoyment of human rights on the Internet, A/HRC/20/L.13, 20thSession. The Resolution provides that the Council, inter alia:“Affirms that the same rights that people have offline must alsobe protected online, in particular freedom of expression, which isapplicable regardless of frontiers and through any media of one’schoice, in accordance with articles 19 of the Universal Declarationof Human Rights and the International Covenant on Civil andPolitical Rights.”180 / Global Information Society Watch