In the past, I have defended the right of CYFSWatch to vigorously criticise CYFS and the government. While I disapprove of what they say, the fact is that their site did not meet the bar for censorship in a free and democratic society. It may be defamatory, aggressive, and creepy, but it did not threaten people with violence or incite attacks on those it named - not even in the carefully veiled way which RedWatch did. There was thus no justification for any form of censorship and punishment.
Their post today on Sue Bradford, however, does meet those grounds. It explicitly threatens violence, and graphically describes what the poster wishes to do to her. It concludes
If ever someone needed a beating, it is this sociopathic witch.[...]
Bradford is a worthy candidate for NZ's first political assassination - I only wish I had the resources to do it.
As a non-lawyer, I am not sure whether the acts described would constitute "grievous bodily harm". If they do, then s306 of the Crimes Act 1961 would apply, and the author and poster would be liable for up to seven year's jail. Otherwise, it certainly falls under s66 (d), of inciting, counselling, or attempting to procure the offence of assault, and may fall under s196 - common assault, which includes threats to apply force - as well.
These are serious crimes, and the people responsible should be prosecuted for them. It is one thing to vigorously criticise the government (and such should be an absolute right in a democracy); it is quite another to explicitly threaten to beat someone for their political views.
Meanwhile, its nice to see that once again the fundies have come through with a display of disgusting behaviour at the crunch - just as they did over Homosexual Law Reform and Civil Unions. I can't think of anything more likely to help push people towards supporting the bill than this sort of display of hate and thuggery.
They actually expressed a wish to kill her, not just beat her.
ReplyDeleteGrievous bodily harm is also known as "wounding" in New Zealand, generally it's something like stabbing. A "beating" would be at most injuring (one step down from wounding) or assault with intent to injure (one further step down).
ReplyDeleteUnfortunately this certainly does not fall under s 66(d). Party liability only arises under s 66 of the Crimes Act if the crime itself is committed. I.E. if someone assaults Bradford having been incited by the blog then the author can be guilty as a party. You can't be a party to a crime that isn't committed.
There's some discussion of party liabilty in this post (http://www.sirhumphreys.com/lbj/2006/nov/15/pay_the_fine_dr_cullen) over at Sir H (esp in the comments).
Yes and yes. On the first point, it's an interesting precedent, and quite a conundrum. What would we do if somebody said this on the street? A police officer would probably write it off as over-excitment, although that might depend on the circumstances. What about death threats by telephone or mail? Plenty of those, and not much prosecution. Would there be more prosecution if people could be easily caught? Or do the police not care that much?
ReplyDeleteIs a blog comment worse than these examples? Probably - it's a more permanent and accessible record. It is somewhat uncharted territories, though. And possibly muddied by the question of whether NZ law can apply to an international web-site.
So I would like to see something done about this, but I'm not sure what. Prosecution might be over the top, but how else can you regulate the blogosphere?
If S196 applies, surely party liability would also apply to the poster and author (I'm not sure which one would be deemed to have committed the assault itself)?
ReplyDeleteThat said, does the explicit disavowal of "ability to effect [that] purpose" sneak it out of the "assault" definition?
Assault by threat needs an apprehension of the threat (i.e. my telling you that I'm going to punch someone else isn't assault of that person).
ReplyDeleteMoreover a statement such as "If you were a guy I'd punch you" isn't an assault (by threat). No reasonable person upon hearing that could conclude that there is a threat to use force - it's in fact a statement that force won't be used - as the death threat in this case is.
This would not meet the test for threatening death.
The beating threat is a little closer, but being couched in such terms, it might make it either - but that is a might, and I don't completely rule out criminal liability for that. And, of course, if the statement is an assault then the reprinting of that would likely fall with s 66(1)(d) and open the blogger to liability as a party.
Having now read the whole threat (I'd missed I/S's words "It concludes" first time 'round) I'd suggest that the beating wouldn't be a GBH/wounding, but rather an ABH/injuring.
ReplyDeleteIntentionally breaking someone's nose is an archetypical injuring.
reminds me of threats made by normaly civil members of the public regarding the kahui's and also idle threats people have even made to me (from the left of me) for taking a political position.
ReplyDeleteHaving said that, I wouldn't mind too much of people who threatened me went to jail...
BTW I think 'one' could have a pretty good guess at who the blogger is.
It looks like the site has been taken down now.
ReplyDeleteGood fucking riddance I say, I was going to have a go at hacking it and taking it down myself....
That site was nothing but a hate site that promoted violence against children and women, and I would hate to think what the people who ran that site are treating their kids. And for the record...I would have to say, Sue Bradford has 6 kids, so I would say she knows a bit about parenting..
Millsy: this is the net; they can always play Whackamole if they want.
ReplyDeleteAs for hacking, I don't think vigilante action is a suitable response. Let the police handle it.
Interesting - the police say that the post doesn't break the law as the threat was not clear enough. I'll be holding them to that opinion in future.
ReplyDeleteCrickey! How much more threat do the police want?
ReplyDeleteI'm not sure - but I am trying to OIA the opinion. It could be quite useful in future sedition cases, for example.
ReplyDeleteUnfortunately legal opinions are notoriously hard to get; I hope that the public interest in knowing what we can actually say will outweigh the protection of legal advice in this case.
Millsy:
ReplyDeleteConsidering the *ahem* less than entirely temperate comments you've posted around the traps, I thought you'd be having a little think about now.
If you get that opinion, I/S, I'd love to have a look - especially after hearing a Police spokesman on National Radio saying they were trying to find whoever was responsible for that post and arrange a wee chat. I see potential for the blogisphere becoming a very interesting place next (election) year.
Craig: if I get the opinion, I'll post it.
ReplyDeleteAs for the police wanting to talk to the author, they've said its legal, and so have absolutely no business doing so. The police should not be knocking on people's doors over what they say on the internet, unless a crime has been committed.
If an assault did take place as a result of the site publishing the original threat *and* Sue's address, then there is an argument that the authors would be a party to the crime.
ReplyDeleteI think that when people indicate that they might be about to commit a crime, the police are entitled to speak to them about their future conduct? They are after all meant to prevent crime, not just investigate it.