ITP Techblog

Internet safety watchdog NetSafe has got itself in hot water over a major initiative it is working on, the Aotearoa New Zealand Code of Practice for Online Safety and Harms.

The code's aim is in its title - to ensure practices that help keep people safe and free from harm online. We already have legislation outlawing abuse, threatening behaviour and harassment online via the Harmful Digital Communications Act.

Netsafe has an official role under that law in trying to resolve disputes before they escalate to warrant legal action. This new code is aimed at the companies that run the digital platforms where abuse all too often continues to occur. It will require the setting up of an "administrator", which will oversee signatories' compliance to the code, run a complaints process and handle issues of non-compliance. 

This is a voluntary code, which is in line with New Zealand's strategy of trying to build consensus with Big Tech companies rather than forcing compliance through legislation, as Australia, the European Union and other countries are doing to varying degrees.

It is yet to be seen which approach achieves more in the long run. While the code seems reasonable in theory, NetSafe's approach to its drafting has raised the ire of local groups who weren't invited to have input. 

Instead, the draft of the code, which hasn't been released publicly yet, but which Tech Blog was able to obtain a copy of, was developed with extensive input from the tech companies. There's a pragmatic reason for that. Presenting them with a voluntary code they are unlikely to accept is likely to be a waste of everyone's time. 

But it seems as though NetSafe has gone the other way entirely, leaning heavily on policy experts at the tech companies such as Meta, Google, Microsoft, Tiktok, Twitch and Twitter, to draft its code.

"By focusing on in-depth input from tech platforms before coming to communities and individuals, it highlights the power imbalance with targeted communities," Anjum Rahman, Project Co-Lead for Inclusive Aotearoa Collective, said this week.

InternetNZ is similarly dismayed.

"The process should be inclusive and extend to communities that might not easily be reached," said its chief executive, Jordan Carter.

"They need to be resourced and supported to participate at a level that matches the participation of the tech platforms."

Mandy Henk, the chief executive of Tohatoha NZ, which advocates for a safer and more inclusive internet, said that without broad buy-in from communities, the code "may be set up to fail these people".

Who is the code really for?

NetSafe is planning to undertake consultation with those groups in February. But by getting so far down the track with the tech companies, it has put the cart before the horse. 

Who is this code actually for? Is it the tech companies, who let's face it, clearly favour inexpensive voluntary measures over potentially disruptive regulation?

Or is it for the people who are experiencing harm on their platforms every day and who want recourse other than via the arbitrary, slow and impersonal complaints systems these companies operate?

It should clearly be for the latter group, yet the people of Aotearoa haven't had a seat at the table in putting this code together.

The code itself reads like a box-ticking exercise for the companies behind the big digital platforms. The numerous measures that signatories to the code agree to enact are so broad that they encompass everything the likes of Meta and Google are already doing. the administrator and signatories agree to establish the complaints procedures and oversight powers within six months of the commencement of the code. But if the measures it is policing are so general and broad, the code may prove ineffective. NetSafe's current role in dispute resolution under the HDCA would also seem to give it a conflict of interest if it was to become the administrator of the code. 

New Zealand media outlets have a similar arrangement via the Media Council, where they agree to uphold certain conditions and can be penalised for non-compliance. They fund it and join it on a voluntary basis as well. 

Inclusive consultation needed

But there is a big difference. Those media outlets aren't global giants. Their business rests on retaining the trust and support of the New Zealand public, who they count as readers, viewers and subscribers. In contrast, Big Tech can walk away tomorrow if the going gets tough. It won't stop them from operating in New Zealand, the impact would be negligible. Unfortunately, the way the code is written there's little chance of it ever being tough enough to even trouble them.

If NetSafe isn't careful, this code could be dead in the water, which would be a great shame for Martin Cocker, who has led the organisation very well for 16 years but who steps down as chief executive today.

NetSafe needs to run genuinely inclusive consultation on this code and be prepared to reflect the community's perspective in the final article if it is going to have a code worth more than the paper it's written on.