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Getting your head around the Safer Online Services and Media Platforms Consultation

Victoria MacLennan. 25 July 2023, 7:54 pm

In considering our feedback on this, we need to listen to the voices of people currently excluded from the internet, through repeated experience of harm, or through choice because they feel silenced and threatened, and for whom the Internet is not a safe place. Viv Maidaborn, InternetNZ

This blog is really a summary of what I have found out during my own discovery phase on the consultation DIA have released on Safer Online Services and Media Platforms Consultation.  It’s a big topic, lots to get our heads around so whether you are responding to the consultation or not this collection of notes and reading might be useful. 

To the basics first

As The Spinoff put it - What is this document with the world’s most boring name?

DIA’s Discussion Document which outlines the proposed changes can be read here. 

Further information can be found on DIA’s website here.

OK so what is this all about?  Basically DIA is proposing to revamp the regulatory environment for broadcasting and online media, they describe this as platform regulation.

Why? and why now? New Zealanders are being exposed to more harmful digital content than ever before. The generally agreed view is our legislation and regulatory framework does not currently meet the needs of this modern world. 

What are they proposing? In scope social media, other online platforms and other forms of media will all be brought under a new regulatory umbrella - to make us all safer. 

How do they plan to do this? The proposal is to implement a combination of - New legislation. A new independent regulator who will have greater powers than the current Chief Censor and Broadcasting Standards Authority. They new regulator will facilitate the development of Codes Of Practice designed to manage risks and consumer safety. Expansion of what is considered to be a regulated platforms. The ability to require platforms to take down illegal content for a wider range of reasons with wider penalties. 

These changes will have fairly wide reaching impacts on a range of existing regulatory functions and legislation. 

What to read to get up to speed quickly

The Spinoff’s Shanti Mathias uses a slightly more lighthearted way to get the key facts across, unlike the piece from the former Judge below, this is an easy read and best place to start. 

“The suggested changes are pretty different from what we have right now. All digital industries that publish content, including overseas companies like Meta and Google and local industries (like the media!), would have to sign up to codes of practice that would govern what could be available to New Zealanders on their platforms – essentially the first thorough attempt to regulate social media platforms here. The codes would be developed by the various industry groups with support from a regulator.”

Former Judge David Harvey (you may recall him having to step aside from the KimDotCom case after making a joke at Nethui some 11 years ago) wrote up his first impressions after the consultation was announced.

“What is proposed is a dramatic revamp of the regulatory landscape for broadcast and for online media. The documents describe the proposals as platform regulation. It is in fact a proposal for content regulation.”

His piece is very detailed. Lays out the objectives, what is proposed etc. He explains the legal context in detail and somehat plain English and provides great insight into areas of the proposal worthy further discussion. 

A few quotes from his article worth picking out:

  • “The DIA is proposing that the regulator should also have powers to deal with content that is illegal for other reasons, such as harassment or threats to kill. It is unclear what is proposed but I imagine that the Regulator would have the power to issue take-down orders.”
  • “It is disingenuous to suggest it is NOT a content regulation programme because it is. Saying that it is a platform regulation system is facile because what is proposed will moderate the content that platforms promulgate.”

He goes on to express some specific concerns which are to paraphrase two if those:

  • What is proposed is a regulatory system that allows for the creation of a Code or Codes of Conduct for platforms……This will not be a matter for legislation but for a super-soft rulemaking arrangement that could well see the introduction of permissible levels of content and a back door entry for the regulation of so-called “hate speech”.
  • In an area as sensitive as the communication of ideas there should be clarity and certainty about what may or may not be permissible. This proposal does not provide for that.

Simpson Grierson via the Lexology platform provide a short appraisal of the proposal which is pretty matter of fact. There are a couple of paragraphs I found very useful to understand. 

“Kiwis who consume media should expect greater use of warnings and consumer advisory information to help them make informed decisions before viewing content. There would also be more user and parental controls, targeted moderation practices and better pathways to report harmful content.

Media businesses will see increased compliance requirements, which may involve implementing stricter policies and content review processes. Co-operation with the proposed regulator, including prompt response to requests, would likely be necessary. Unregulated platforms, such as social media and video-sharing services may need to make adjustments to comply with the new regulations in New Zealand.”

FACT Aoteaora have kindly put their submission online and summarised it in a nutshell as: 

“FACT Aotearoa strongly supports this proposal. We feel that an appointment requiring the participation of our whole society in defining and monitoring harm is more democratic, responsive and based in local issues, and is superior to an appointment without these requirements, and to self-moderation by platforms. 

We point out that opposition on the grounds of this being a political appointment leaves us with an unmanaged platform-based approach (except for the most harmful content). This is a less responsive, less democratic and less local process to define and monitor harm, so opposing on those grounds is disingenuous, as it prefers self-monitoring by unconcerned and profit-motivated platforms. 

We applaud the requirement for education and want that well and urgently funded. We believe here is reason to suggest that projects building social cohesion and critical thinking skills should also be funded within certain parameters.”

Bell Gully’s assessment has the best laid out description of what’s included of these articles.

They go on to add their concerns about greater regulation of content which are (at a high level):

  • Overreaching Censorship - “… concerned that the new regime could result in over-censorship, impinging on legitimate speech and inhibiting the free flow of ideas. For example, algorithms filtering content may go further than is necessary.”
  • Ambiguity and subjective judgment: Defining and identifying harmful content is difficult. Commentators have expressed concerns about the potential for subjective interpretation, which may result in inconsistent content moderation decisions across platforms.
  • Enforceability: Many of the largest platforms that New Zealanders engage with, such as Facebook, Instagram, Twitter, Netflix and Amazon Prime, are headquartered overseas.

It’s not too late to submit to the consultation

Submissions close on Monday 31st of July. If you are an IT Professionals member we are still developing up our response and have the ability to provide input into the process beyond the 31st of this month. So please participate in our process if you are a member. 
If you are not a member we would welcome your thoughts so feel free to share them with us via [email protected] and we can ask members to consider other perspectives. 
To submit directly to DIA by COB Monday use their online submission form here. 

Vic’s thoughts on all of this

These changes are needed but very complicated. DIA have done a great deal of work on this. I haven’t found who they were talking to to inform their thinking along the way to date and worry they will treat this consultation as they have done with others - cherry pick the bits they like and disregard the rest. But time will tell.

Leaving the last word to Viv

“It will be the detail that could be the difference between making new regulation ineffective or great……if poorly conceived, regulation could end up being used against, or harming the groups it’s designed to protect.” 

I hope you are hearing that message loud and clear DIA.  Vic 



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