scholarly journals Censoring cyber-bullies: Is the Harmful Digital Communications Bill a justified limitation on the right to freedom of expression?

2021 ◽  
Author(s):  
◽  
Annie O'Connor
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Digital Communication ◽  
Freedom Of Expression ◽  
Digital Communications ◽  
Bill Of Rights ◽  
Criminal Offence ◽  
Online Abuse ◽  
The Right

<p>Harmful Digital Communications have become a pervasive and serious problem in New Zealand. The Harmful Digital Communications Bill aims to address this problem in a number of ways. This paper focuses on the civil enforcement regime and the criminal offence of causing harm by posting a digital communication established by the Bill. It considers these aspects of the Bill in light of the right to freedom of expression, and analyses whether they constitute a justified limitation on that right. By applying the New Zealand Bill of Rights Act 1990 section 5 analysis from Hansen v R, the paper discovers that the civil enforcement regime is a justified limitation, but the new criminal offence is not. The paper concludes that the inclusion of a public interest defence in the offence would allow it to effectively ameliorate the harm caused by online abuse without impinging on freedom of expression more than is reasonably necessary.</p>

scholarly journals Censoring cyber-bullies: Is the Harmful Digital Communications Bill a justified limitation on the right to freedom of expression?

2021 ◽  
Author(s):  
◽  
Annie O'Connor
Keyword(s):  
New Zealand ◽  
Public Interest ◽  
Digital Communication ◽  
Freedom Of Expression ◽  
Digital Communications ◽  
Bill Of Rights ◽  
Criminal Offence ◽  
Online Abuse ◽  
The Right

<p>Harmful Digital Communications have become a pervasive and serious problem in New Zealand. The Harmful Digital Communications Bill aims to address this problem in a number of ways. This paper focuses on the civil enforcement regime and the criminal offence of causing harm by posting a digital communication established by the Bill. It considers these aspects of the Bill in light of the right to freedom of expression, and analyses whether they constitute a justified limitation on that right. By applying the New Zealand Bill of Rights Act 1990 section 5 analysis from Hansen v R, the paper discovers that the civil enforcement regime is a justified limitation, but the new criminal offence is not. The paper concludes that the inclusion of a public interest defence in the offence would allow it to effectively ameliorate the harm caused by online abuse without impinging on freedom of expression more than is reasonably necessary.</p>

scholarly journals Public nudity and the right to freedom of expression: Balancing competing interests

2021 ◽  
Author(s):  
◽  
Laura Mary Lincoln
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Attorney General ◽  
Case Law ◽  
Bill Of Rights ◽  
Competing Interests ◽  
Current Test ◽  
The Right

<p>With little case law concerning nudity and the right to freedom of expression, this paper aims to uncover the appropriate frameworks to be used to determine the following questions: (a) when is public nudity “expression” for the purposes of s 14 of the New Zealand Bill of Rights Act 1990, and (b) in what circumstances involving “expressive” public nudity would it be reasonable and demonstrably justifiable to limit the right to freedom of expression using s 4(1)(a), as per s 5 of the Bill of Rights Act? As regards the first of these questions, this paper critiques the current test in use in New Zealand for determining whether conduct is expression – the test developed by the Canadian Supreme Court in Irwin Toy Ltd v Attorney-general (Quebec) – and advocates for the adoption of a purposive approach to determining the scope of the right to freedom of expression. As for the second of these questions, this paper advocates for the adoption of “the modified Hansen sequence” proposed by Professor Claudia Geiringer. This paper then uses recent examples of public nudity involving naturists and protestors to test these frameworks and to illustrate how they would operate in practice.</p>

scholarly journals Public nudity and the right to freedom of expression: Balancing competing interests

2021 ◽  
Author(s):  
◽  
Laura Mary Lincoln
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Attorney General ◽  
Case Law ◽  
Bill Of Rights ◽  
Competing Interests ◽  
Current Test ◽  
The Right

<p>With little case law concerning nudity and the right to freedom of expression, this paper aims to uncover the appropriate frameworks to be used to determine the following questions: (a) when is public nudity “expression” for the purposes of s 14 of the New Zealand Bill of Rights Act 1990, and (b) in what circumstances involving “expressive” public nudity would it be reasonable and demonstrably justifiable to limit the right to freedom of expression using s 4(1)(a), as per s 5 of the Bill of Rights Act? As regards the first of these questions, this paper critiques the current test in use in New Zealand for determining whether conduct is expression – the test developed by the Canadian Supreme Court in Irwin Toy Ltd v Attorney-general (Quebec) – and advocates for the adoption of a purposive approach to determining the scope of the right to freedom of expression. As for the second of these questions, this paper advocates for the adoption of “the modified Hansen sequence” proposed by Professor Claudia Geiringer. This paper then uses recent examples of public nudity involving naturists and protestors to test these frameworks and to illustrate how they would operate in practice.</p>

Freedom of Expression versus Privacy and the Right to Reputation

2017 ◽  
Author(s):  
Dirk Voorhoof
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Media Freedom ◽  
Investigative Journalism ◽  
The Public ◽  
The Right Of Privacy ◽  
The One ◽  
Grand Chamber ◽  
The Right ◽  
The Impact

The normative perspective of this chapter is how to guarantee respect for the fundamental values of freedom of expression and journalistic reporting on matters of public interest in cases where a (public) person claims protection of his or her right to reputation. First it explains why there is an increasing number and expanding potential of conflicts between the right to freedom of expression and media freedom (Article 10 ECHR), on the one hand, and the right of privacy and the right to protection of reputation (Article 8 ECHR), on the other. In addressing and analysing the European Court’s balancing approach in this domain, the characteristics and the impact of the seminal 2012 Grand Chamber judgment in Axel Springer AG v. Germany (no. 1) are identified and explained. On the basis of the analysis of the Court’s subsequent jurisprudence in defamation cases it evaluates whether this case law preserves the public watchdog-function of media, investigative journalism and NGOs reporting on matters of public interest, but tarnishing the reputation of public figures.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

Conditions of the Right to Erasure

2020 ◽  
pp. 196-274
Author(s):  
Jef Ausloos
Keyword(s):  
Public Interest ◽  
Freedom Of Expression ◽  
Personal Data ◽  
Historical Research ◽  
Legal Obligation ◽  
The Public ◽  
The Third ◽  
Legal Provisions ◽  
The Right ◽  
Data Subject

This chapter zooms in on Article 17 GDPR, on the right to erasure (‘right to be forgotten’). It meticulously dissects the three paragraphs of this provision. The first paragraph lists six rights-to-erasure triggers which can be summarized as: (a) purpose expiration; (b) withdrawal of consent; (c) right to object; (d) unlawful processing; (e) legal obligation; and (f) withdrawal of consent by minors in the online environment. The second paragraph comprises an odd extension of the right to erasure, enabling data subjects to request that controllers who have made the personal data public, communicate potential erasure to anyone else processing that same personal data. The third paragraph lists five exemptions to the right to erasure, summarized as: (a) freedom of expression and information; (b) legal obligation or task carried out in the public interest or official authority; (c) public interest in the area of public health; (d) public interest archiving, scientific and historical research, or statistical purposes; and (e) legal claims. What becomes clear right away is how both the right-to-erasure’s triggers and exemptions all refer to other legal provisions in and outside the GDPR. As such, the right to erasure can be seen as a central hub in the GDPR, bringing together key data protection principles from the perspective of data subject empowerment.

scholarly journals A decay of rights: The decision in New Health New Zealand Inc v South Taranaki District Council

2021 ◽  
Author(s):  
◽  
Rose Louise Goss
Keyword(s):  
United States ◽  
New Zealand ◽  
Medical Treatment ◽  
Bill Of Rights ◽  
Water Supplies ◽  
Legal Development ◽  
District Council ◽  
Definition Of ◽  
The Right ◽  
Right To Refuse

<p>The decision in New Health New Zealand Inc v South Taranaki District Council is the most recent legal development in the New Zealand debate about fluoridation of public water supplies. That decision centred on the interpretation of section 11 of the New Zealand Bill of Rights Act, the right to refuse medical treatment. The Court held that the fluoridation in question was legal, and reached a limited definition of medical treatment that did not encompass fluoridation. This paper analyses the reasoning leading to that interpretation, concluding that the decision is problematic and that the definition of s 11 needs to be remedied. The use of the wording of s 11 to limit the definition of medical treatment was inappropriate, as was the policy reasoning used to support that limitation. The structure of reasoning followed exacerbated these issues and adhered too closely to the reasoning in United States cases. Furthermore, the application of a de minimis threshold was conducted without adequate scrutiny, and such a threshold should not be applied to s 11.</p>

scholarly journals The Video Camera Surveillance (Temporary Measures) Act 2011: An Unprecedented Licence to Search

2013 ◽  
Vol 44 (1) ◽  
pp. 221
Author(s):  
Harriet Bush
Keyword(s):  
New Zealand ◽  
Video Surveillance ◽  
Video Camera ◽  
The State ◽  
Search And Seizure ◽  
Court Decisions ◽  
Bill Of Rights ◽  
Ratio Decidendi ◽  
The Right ◽  
Camera Surveillance

This article examines the Video Camera Surveillance (Temporary Measures) Act 2011 which was passed as a result of the Supreme Court's decision in the case Hamed v R. This Act provided that a search was not unlawful simply because video surveillance was used. The article explores the previous court decisions on the lawfulness of police use of covert video surveillance in order to ascertain whether the premise upon which the Act was based, that video surveillance was lawful before Hamed v R, was correct. It then looks at the ratio decidendi of Hamed v R and the potential wider implications of this judgment. Finally, it assesses the state of the law under the Video Camera Surveillance (Temporary Measures) Act and whether this Act limited the right to be free from unreasonable search and seizure which is contained in s 21 of the New Zealand Bill of Rights Act 1990.

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