The Internet and the Law - With Arran Hunt
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Chris Patterson 00:06
Hello and welcome to The Law Down Under Podcast with barrister Chris Patterson, we will give you insights into the law in New Zealand and Australia, its application and the laws future. Each episode features a new guest who will inspire your interest in the law and give you a greater understanding of the legal issues that helped shape our justice system here down under. We thank you for tuning in and enjoy the podcast. On today's episode of The Law Down Under Podcast I am lucky and privileged to have with me Arran Hunt, who is a partner at Stace Hammond. Arran is an expert in immigration law, technology law, internet law and social media. He has a passion for helping people protect themselves online, and to understand how the laws of the digital world impact on them. He is a board member of the Dignity Freedom Network, which is a nonprofit organization, focusing on improving access to education and restoring dignity and freedom to marginalized children and woman. And in 2021 Arran was awarded the top diverse board ready director by the super diversity Institute for law, policy and business. Today we're going to be talking to Arran about the law of the internet and social media we'll consider different types of threats that exist online, whether New Zealand's current legal framework is sufficient to keep up with the ever developing world of technology. We also discuss the ways in which both individuals and businesses can protect themselves online. And I do hope that you'll enjoy this episode of the podcast with Arran Hunt. Good morning, Arran, how are you?
Arran Hunt 01:39
Good. Thanks, Chris.
Chris Patterson 01:40
It's great to have you here. And what a great topic to talk about the law of the internet. I think first of all, let's just talk about what is the internet? I mean, everyone will have their own idea what the internet is mainly to the effect of, you know, to this extent it affects them. But But how do you look at the internet? What would you how would you describe it?
Arran Hunt 02:00
The internet is it is that basically that network of networks, I think we'll see most people were looking at, well, webpages or the apps on their phone are saying well, that's internet, but it sort of goes beyond so much more of that is that our communication, our phone calls, if you make a phone call now even on a landline that's going over the internet, it is now so entrenched in our lives that generally everything you do there has an electronic component is on the internet. It's everywhere. It's every part of everything we do now.
Chris Patterson 02:25
Oh look, it's all invasive. I mean, any parent that's got teenagers will know the absolute chaos and the end of the world that occurs when the when the Wi Fi goes down or the modems not connecting.
Arran Hunt 02:39
It's it really is the end of the world, isn't it, already as even myself and I'm no longer a teenager past that. If I was waiting engineer for more than a day, I think I'd be missing out on the rest of the world i Is that need to be for me to be connected to see what's going on in the world and always been knowing what's going on? I think it's hard to sort of disconnect these days.
Chris Patterson 02:55
Yeah, it certainly has become something that's almost essential to to like even the practice of law. Now it's kind of hard to imagine practicing law without being somehow connected to the internet. Now, look, tell me, how did you get involved? Like how does someone decide I want to specialize in and become interested and the law of the internet or how the law intersects with the Internet.
Arran Hunt 03:22
I came into university, the first time with a science degree Bachelor of Science in pure science, but looking at how systems work and how systems can integrate with the greater world. And I went and spent several years in London reengineering what we now called disruption of the industry, the insurance industry and working with them on improving how they did things using technology, that sort of thing. So I did there for several years, Cambridge, New Zealand realized that I really missed the stress of London, I enjoyed stress in my work. I thought I gotta be a lawyer, no childhood dream, law, courtroom, you know.
Chris Patterson 03:57
Arran Hunt 04:01
Chris Patterson 05:17
Or useless now.
Arran Hunt 05:19
It was last year, they taught it, banks to use at the time, but I learned like four or five languages, but more. So as I looked at how these things were relating to react, I learned how the databases worked, how the systems wanted to connect it, which meant that why because I was always a horrible program, but I could design these systems and work out how they worked pretty effectively, which led me to understand how the Internet worked at the back end, as well as the front end and know how to work so that technology wise, also human wise. Yeah.
Chris Patterson 05:45
So because the internet has certainly evolved of this way of putting it from, I guess, when you and I, because we're of a similar Vantage, when we started our tertiary studies, very few computers were actually even interconnected, possibly connected within a computer lab, but not necessarily connect connected beyond the university itself. But we went through an education system that then saw the cutting edge of that development. And I mean, of course, you've seen that, right, from a front end, but you've then gone off and entered into law and you would have been, probably started, you know, probably around about the same time I did we restore head, W people's, mainly staff working, sitting next to each other literally typing up documents that authors had dictated in an analog format. I mean, people still sent letters, like, via post, you know, the, there was a mailroom, and law firms, you know, literally 1000s of dollars are spent every day for the cost of stamps. So you've seen that development come through.
Arran Hunt 07:00
We don't make change. And whenever I see people come to me saying, Hey, we've got this great new product, I'm like, yeah, they probably won't pick it up, because it's going to change how to do something. Lawyers still fax. And I think that's an embarrassment really, for any industry that still uses a fax machine, especially when they sort of fax and then email it so you can read the document, they fax to you in the first place, it just makes no sense. So we were probably well behind the eight ball and that we were still using No. So typing things out still using dictation devices still having staff or have things for us. And that you see people see lawyers sending a memo to a staff member to send a memo by email to staff to do something like why has email them? Yeah, it's gonna take you 1015 minutes to do that in a minute to send an email, you have emails there, you, but it's just that habit. And we don't like that change. I don't like technology to any sort of degree. So I was sort of one of the outliers as you are that sort of love this technology and love what we're doing and saw the advantage that we're there. And in an untapped market effectively.
Chris Patterson 08:02
Great. Okay, well, let's now talk about a legal framework. So in terms of governance and regulation, New Zealand domestically, is stalled trying to find its way through hell, we can best you know, regulate, or provide laws for for the internet. And I mean, it's, in some ways, some have suggested all that's a complete waste of time. I mean, there's no point trying to regulate or create laws for the internet. One, I mean, there was one theoretical model called, you know, governance by the law and judge Esterbrook this Titus from David Harvey's book, internet, dot, you know, the law of the Internet where, where he quotes judge Easterbrook a saying, you know, there's no more of a law of cyberspace than there is a law of the horse. And then the essence what the theory is, is it's just you just apply the rule of law to the people using the internet. And that's enough, you don't need regulation. The existing law is here. It's been around for centuries. Well, the internet doesn't change anything. What's your what's your views on that?
Arran Hunt 09:17
I'm pretty, very in favor of that approach. We saw in some early cases, the tort of trespass used for hacking, and it applied well, but it actually worked in this situation. And same thing, when we have sort of introduce diction of staff, we have shipping law, which can be applied to law situations, not always perfectly. But if you get your mind away from its digital, it must be different and actually start looking at the components. You actually set the same. The parent established law, often these torts will often apply quite nicely to the law. It doesn't mean there's not a need to perhaps make new legislation, but perhaps not in the great panic we sometimes say They're sort of quick, let's react on something. But then ironically, still take three or four years to do it and get a result that doesn't actually work when there's often already is total case law that actually could be applied and what situations you will look, you're right.
Chris Patterson 10:20
I mean, there's there's plenty of examples, I'm just thinking ofthe law of defamation. I mean, it's been around for centuries, to protect reputations. There's the famous Victorian case in Australia have gotten UK and Dow Jones, where a Muscat neck was defined by the the Barons bulletin. And rather than suing the publishers who are who are based in New Jersey, and the United States, which isn't particularly plaintiff friendly, he decided to sue in the great state of Victoria and Australia, because the laws are more plaintiff friendly. And he could just simply say, well, the technologies are relevant at public Publishing's publishing and the law will evolve and adjust for technological change.
Arran Hunt 11:02
Exactly. And we are moving into that sort of area where actions in one country take back in all countries. If you were to post something on Facebook, you're posting spectively internationally. So you cannot have that mindset of well, it's happening here. So I think they You shouldn't go as they're told that case, they shouldn't go be picking your your jurisdiction to look at the jurisdiction from the actions taken from the parties involved, and again, follow the sort of shipping shipping laws as to where the correct jurisdiction should be. And that seems to be the proper approach to take. But at times, we seem to seek to see people trying to interfere with that and trying to impose what they think the law should be, perhaps beyond their own borders.
Chris Patterson 11:45
Yeah, well, I guess there's a, you know, there's, there's another theory of what they call the transnational school, which has governance by international law, and that is known as an international community coming together and saying, Well, you know, we have these international laws, for example, around banking and various other matters. I mean, you've mentioned Shippings, a good example, we could somehow create a model similar to that. So that there is one law that applies, wherever you are, but then that's a real threat to domestic sovereignty, and people being able to well, nations passing laws for themselves. I guess, where do you think the nice medium is? Is it one that sort of a more neoliberal approach that the market will dictate how the laws will be? Or? Or should we leave it up to the, to the Propellerheads, that technicians, the people who actually do the coding and create the hardware to say, well, we're going to enable you to do this, but we're not going to enable you to do that.
Arran Hunt 12:51
There's probably no real right answer is going to be sort of in the middle ground somewhere with the international laws, you generally have those laws coming through, because there is a financial interest of those governments and making those lots. And in regards to internet law, that financial interest isn't going to always align, especially when it comes down to sort of personal harm rather than sort of financial benefit. We already saw with the profits being made by these companies in sort of countries going well, we should be taxing there. But anyway, in the category as to how that's going to work when it comes to tax, which actually is a benefit to them.
Chris Patterson 13:23
Well, yeah, look, they're trying to have in the past some treaties with this sort of saying a 10% tax rate for the corporates across the globe, no matter how they shift their profits and, and that around, look, only time will tell whether whether that rolls out, hey, look, let's now dive into some specific issues. One that really did back in the late 90s. And it still continues today. But it really highlighted that the internet was, was the beginning of Dawn of a New Age was Was there a domain name disputes? I mean, suddenly, there was this almost land grab going on, where, you know, the.com name suddenly became a value in in corporates and individuals and people were going, Hey, I need to protect the space, because I've invested a lot on it. So, you know, tell us about domain name disputes, how, you know, what are they and how are they resolved?
Arran Hunt 14:20
I think the value on the domain name has sort of gone down and time as we are more likely use an app now and perhaps go to a web page. The way we saw at least New Zealand going there has been a change in the last couple of years as to the rules was that you could hold a domain it was sort of using the IP of another company, but the problem would then arrive if you started using it and there was that sort of idea of passing off where you're going to be making use of that person's name. We did see people who would go on a cyber squat with a gun, buy these domain names and often make good money out of it. I actually buy whereas university I had a small computer company I happen to have the... Initially, the company company, were very similar to a certain city council, nice to get a lot of that email to the city council to me rather than to them. So I ended up selling to them a nice profit. But it was by chance I had a domain which was was useful to them.
Chris Patterson 15:14
So there is some value in that there was coincidental investing.
Arran Hunt 15:24
But it was, it was still, at that point, then I sort of realized that there was a value on there actually had some friends of mine from back in those days many years ago, who would just go and buy expiring domains and then redirected to less favorable sites, and made a lot of money in doing so those days have sort of gone away with how Google now works. And you said this, this digital is redirections. But that was the way it works. Now, things have changed. Because we now have these laws where they have now applied more the law or the IP laws, you haven't a domain name to get those domain names back, if they are used improperly, I couldn't go and buy, you know, a co base domain and direct my company for how I'm part of co. And that would be definitely be battled.
Chris Patterson 16:05
Okay, yeah, so it's taking more of an intellectual property approach of going, Hey, you're gonna there's a proprietary and trust in a particular name. To some extent, a little bit like the approach that's taken when you wanting to register a trademark, you've got to show exactly, you know, some, some interest in it somehow to avoid, you know, other people coming in with objections to say they've got a prior interest in it. So we do have our domain name, dispute resolution service where people with domain names can go and have their disputes resolved, I thought I might have been a user myself when they New Zealand adopted the.nz domain. And there was an invite sent, I guess, to anyone who had a.co.nz, ID or a.org.nz, ID, etc, to say, Hey, do you want the.in Zed domain. But if there were two owners with similar names, other than they the subdomain being saved.co.org. It effectively get locked up unless those two people could sort it out between themselves or two organizations as to who could grab the .nz domain. But that dispute resolution service was sitting in there as a way of avoiding people I guess, getting into the the old school passing off claims in the district court or the High Court spending a lot of money on lawyers taking long time, rather than just working through that process. I mean, have you Have you had experience with domain name disputes and the resolution?
Arran Hunt 17:41
Well, generally, we would often just go directly to the other side. If they were utilizing the domain name, we'll be saying I'm looking at Dennis, there's passing off, we'll take action against you on that basis. And that will usually get us much faster results actually going through the dispute process. Process. It's, it hasn't put together with good intentions. It's not a bad process, we've seen much worse. It's just that at times, it wasn't fast enough, especially when there was a situation where perhaps a domain has expired. Somebody's jumped onto it, taking it over, or one situation we dealt with where a disgruntled IT provider, enemy paid his bill. So he took over the domain and redirected, we found there was better a better process to take it rather than going through the the dispute process redirected it to somewhere not particularly nice, basically nowhere at all. So the client was getting no more emails, and when no more emails means no more work coming through no more interactions. So that was much better the hosted guide on being the lawyer saying, hey, you know, this, these are the damages you're causing, we're going to pursue you for these costs, rather than going to the usual process, which just takes time.
Chris Patterson 18:53
Okay. Well, look, you mentioned early on, Arran, that one of the developments that sparked your interest in the series of law was a Harmful Digital Communications Act. Now, I mean, that's not news. You are unique piece of legislation. There are other countries that have equivalents, but not many. Tell us about the the purpose of the act, what does it seek to achieve?
Arran Hunt 19:18
The purpose is there to prevent harm. And that's what really works isn't the act as debt has prevent someone from being harmed from online content. But the content has to be it is it's reasonably strict in the way the courts have defined it that has to cause serious emotional distress. It can't be someone who's just taking general offense to a statement it has to be somewhat directed to them, or at least be sort of the mentality behind it, that it was directed to them or as a small group of people. So it is there to protect those who, who should reasonably be harmed by something.
Chris Patterson 19:52
Okay, so, you know, we're not talking about look, you know, someone's just said that I'm not a particular nice person. Arizona in a general statement, it is focused targeted abuse. But that abuse has to manifest itself or be causative of serious harm to the individual. And I take it that that's, that's, that's there's mental harm...
Arran Hunt 20:16
There is mental harm. So it has to be shown that it has caused that motional distress that has manifested into side effects. So it can often be, it doesn't require going to a psychiatrist and getting that sort of written off in their way it could be down to loss of sleep, it could be loss of appetite, missing work, often they do become suicidal, they can be suicidal attempts. So it does have sort of results from that harm. It can't just be Yes, someone said something about me. And I felt sad one afternoon, and I may have had a couple of bottles of wine and I sent it off. That's not enough actually has to cause but it's going to be effectively some sort of long term damage.
Chris Patterson 20:52
Okay, now look, you know, some of the listeners will, will have teenagers or will be teenagers, etc. You know, we, you and I grew up as teenagers without necessarily online social media and chats and all the pressures that go with that. But I mean, you and I have seen both positive side of social media as well as it's very dark, sinister, negative side. And this is a piece of legislation that can help provide some form of recourse or remedy or or solution, when I don't know why I mentioned teenagers, but I think it just seems to me that when you when one looks at the harmful Digital Communications Act decisions, many of them are, you know, what I would call either teenagers or teenage type behavior. And that is a real nasty target of an individual. Sometimes it's done on a group basis as well, you know, there'll be more than one perpetrator will be targeting an individual. But this, this, this, this targeting, once someone is, say, concludes, or takes the view that they are being subjected to online harassment, how do they how do they utilize the act? How, you know, what is the process that's followed, to try and you know, I guess, deal with the mischief that's there, in bring it to an end.
Arran Hunt 22:22
First thing we usually advise everyone, whether it's whether it is a teenager, or their parent, or if an adult has been paying hand has to record everything, make sure you've got if there is a if it is posted, if it's a message, make sure you make a recording of it, if you're on Windows, Windows G brings up the game bear and you've got a little recording screen recorder there. There's a similar, it's Ctrl Shift, or Ctrl, F or three or something on on a Mac, and record that because it's hard to show that harm if you can't provide the authorities with those posts.
Chris Patterson 22:55
Like for example, Snapchat, you know, a lot of these messages just disappear after so many seconds.
Arran Hunt 23:00
Yep, Snapchat is a difficult one. Because because it goes by so fast, if it is post such on Instagram, so story, take a screenshot of it. So I think most apps will allow a screenshot at least. Or if you're on a computer, yeah, record on a computer is on Facebook, the you then can go to either your options with regard to Netsafe, or the police, if it is to the to the level where there is threats for harm, if it does, if there is sort of fear for someone's life if they go to the police.
Chris Patterson 23:28
So these are these are online messages saying looking, I'm going to come around to your house, and I'm going to hurt you type scenario.
Arran Hunt 23:36
So there's a police matter based matter differently, if its post mates to cause to cause mental harm, but there is no sort of fear of threat of physical harm or damaged property, then you got to Netsafe I know that they're the first step to go to.
Chris Patterson 23:47
Alright, so presumably, a concerned person can be a parent, for example, can go online, Google Netsafe, there'll be a referral page of some form where you can put in your details and say, This is who I am, or this is who you know, my teenager or child is. And this is a summary of the the type of behavior that they're being subjected to the harm and knit safe, we'll accept that as a as an application to them is that how it works?
Arran Hunt 24:18
It is and the law does allow for a parent or a teacher or a guardian or someone with authority to actually send that on someone else's behalf. So you could be a parent or a teacher or as a close friend, and sort of put it through and it's safe can investigate from that basis.
Chris Patterson 24:32
Okay. And so once Netsafe have had a referral from someone who's laying effectively a complaint of online harassment, what do they do, then?
Arran Hunt 24:40
They'll first of all, look at it and say, Well, does this breach one of the one of the principles from the act is actually an offence under the act? If it is, then they'll look at two pathways. They can either try to mediate it, and often they can do that they can go the other party and say, Hey, we know you've said these things. What you're doing is actually a fence. It could go further try to get them to realize the harm they're causing to stop doing it, in some cases will will encourage them not to do that, because that could actually create further harm. In which case, if they come back saying, yes, we agree this does breach the principles of the act, you can then apply to the district court for an order and by the district court under the act.
Chris Patterson 25:19
Okay. So this is a gateway process, though, isn't it? Like, in terms of someone, let's say, I feel like I'm being harassed online. If I want to go to the district court and get an order of some form, I do have to go through and I'm not talking about the criminal side. I do you have to go through the Netsafe process?
Arran Hunt 25:39
Yes, if you go to the court immediately, they will say to you please go back. Schmidt said, are they willing to admit seven actually asking it safe and whether this is a breach of the of the requirements? Now?
Chris Patterson 25:51
Look I mean, that sounds great. And practice the fact that there is an independent organization that, you know, as funded by the taxpayer, it's it's the there's there's not a cost to people making these referrals. Am I right on that?
Arran Hunt 26:08
I know, there's no, you are, you are right there. But you're also right, and that, that it sounds good in theory. Because after you get past that first stage, and I think we should mention about the criminal side in a moment as well, just so there is a distinction there. on the civil side. Once you get past it first stage, you go to court, that is not an easy process, as we know.
Chris Patterson 26:26
Okay. But before we talk about the court process, do you know this? Because I don't know, this is why I'm asking the question. Do you know the statistics of how successful knit ciphers in terms of resolving disputes? Because I mean, if I if I can pair it to, for example, in be the Ministry of Business, Innovation or Employment, you know, they'll tell you that with the employment disputes, you know, they're resolving something like four out of five and 80% of the disputes. They're sorting them all out. Do we know anything about how effective Netsafe is?
Arran Hunt 27:01
Actually, no, it's a good point. I've never actually seen the stats. As to, you know, all I have as normal experience with them. But on a larger picture, actually, no, I've never seen the stats for tha.
Chris Patterson 27:10
Yeah, I should look at I'm quite interested in it to see even the number of referrals I get, like, whether whether there's been increases over the years of people needing to use their services, or you know, where things are at, anyway, maybe that's something for me to go away and do some homework on it. But it's scary. Okay, so let's just progress, which I think was where you were taking us to been through the Netsafe process, they've tried to offer mediation, either the respondent the you know, the alleged perpetrator of this harassment as either not engaging and saying not interested, don't want to be involved, or they have engaged in this, there's just no resolution, you know, the harmful posts are still up on the internet is still being put up, etc. What does the what does the applicant do, then?
Arran Hunt 27:55
The other option there, as well as is that they could be anonymous, or post under a fake name or to somebody someone's name, and that's often the case for some of the worst posts we've seen. So they'd go to the court that they'd file with the court. They've made the process to file reasonably simple. But as we know, it is not easy to sit in front of a judge. As a lawyer, if you do it, you're reasonably scared the process. As a layperson doing that, if I'm a judge, no matter how nice the judge is, you're sitting in a courtroom surrounded by other lawyers, or looking at a guy who's this person, it is not an easy experience. So well.
Chris Patterson 28:31
It's an adversarial process, which is no different to any of the other civil claims.
Arran Hunt 28:35
Exactly. There is no there was supposed to be an easier process, the government at the time decided not to put in the easier process and to leave it as an adversarial sort of, you know, court process, which leaves someone who's unrepresented sort of scrambling not knowing what to do, which then means you have to hire a lawyer, bring a lawyer in, for those lawyers who sort of handle the area, and that then starts bringing on the cost. Now, if the, if the party is anonymous, and the posts which often they are with the worst posts, you then have to seek action against one of the condo has provided so as a matter of Facebook and Instagram, or Snapchat, and add them to the to the process because you don't know who the person who's posted them, and then seek an order against them. That then leads the cost of having to go to them to get them to respond to the oldest to provide information as to who it is. And that cost just gets bigger and bigger. It's a slow process. It is just not a fun. It's not fun at all, it makes things worse, if you're a victim. It just re-victimizes you again and again.
Chris Patterson 29:31
Well, I mean to a degree, I mean, I'm not saying this happens in all cases, but certainly I can think of instances where the the respondent the perpetrator the harasser, has taken a view of Well, this was perfect. So me i This is exactly what I want you to do, because it enables me to, to be more relevant in your life as the applicant the victim, and and I can sit there either as a lay litigant defending myself or bring a lawyer in and cross examine you and put it to you that you haven't suffered harm or you've brought it upon yourself, etc. So that's a real victimization scenario.
Arran Hunt 30:10
Exactly. And when you get to the actual hearing, that's the very first process, as the victim sits on the stand, and gets questioned, over all these posts, get very re victimized, bought up again and again and asked to justify how that's harmful. It is often twisted and turned against them. It just makes things worse. And you often say to clients, I'll say to clients a lot. And I hate using this example of saying, Look, can you bear it? You don't go further? Yeah, and you live through this. I never want to say to a client, just ignore it. Because you cannot ignore these things online. They're always going to be there. If you don't look at them, you still know that they're actually happening there. But it does come down to going through the process will make things worse to some degree.
Chris Patterson 30:54
Yep. Okay. Well, I mean, of course, it's always good advice as to is to give clients the option of doing nothing. So that you're not throwing more fuel on the fire, giving it oxygen, just letting it just become an irrelevance. Because often the harasser is what they're seeking is engagement.
Arran Hunt 31:14
Exactly. And all you're going to get this on the civil regime is then being told to stop and the posts removed. And that's it. And it could be months, if not years fighting the victory, nothing.
Chris Patterson 31:24
Okay. Well, let's just talk about remedies that the district court hears. So someone has filed their application on the Harmful Digital Communications Act, they've established that there has been harassment online, it has caused serious harm. But what powers does that does the court then have what can court do?
Arran Hunt 31:46
So under the civil regime, the factory, the court can order for the post be removed, they can order for no further posts to be made or not worthy? Because they're the respondent to encourage not to encourage others to make similar posts. And they can order an apology. And that's basically it. All right.
Chris Patterson 32:03
Now, this is there's a small power to award some costs, but there's no power to award compensation, correct? Exactly. Yes. Yeah. Okay. So to a degree, it's a right without particular remedies with teeth.
Arran Hunt 32:19
Yes, and that is why we see these very few, these matters actually being resolved, usually a partner through it, and then at some point, they're going to go yell out a stop, we just leave it alone here, and the metal finishes.
Chris Patterson 32:29
Okay. So let's now sort of jump to the, to the other side of the coin, in terms of the criminal part of of the legislation under the Harmful Digital Communications Act. We at what point does it go from being a civil matter to a criminal matter?
Arran Hunt 32:48
There's two ways in go to criminal with the recent changes. The first one that was established in the very beginning was that the posts were made with the intention of causing harm. And that harm was caused and reached the threshold. At that point, the police should be involved and they should be taking over the matter. And that is out of the out of the victims hands that please don't get involved. They cover the cost, they handle all of that for them. Where possible, we'll encourage our clients to go on their pathway will talk to the police and try to encourage the police to get involved. Historically, they have been reluctant a lot of time to get involved, after making excuses rather than actually doing what we think should have been their job. The other way which has come through with the recent amendments, is that into visual material, so any posts of somebody which makes diction criteria above IVR, under the Crimes Act, as well as under the Status station will automatically be deemed as being posted for the intention of causing harm. It will be the on the respondent to or the defendant in that case, to prove they had consented to post. So sort of consent needs to be probed proven rather than assumed.
Chris Patterson 33:57
Okay. And of course, the onus is on the person posting the content. It's not the other way around.
Arran Hunt 34:03
Yeah, it's very hard to prove that somebody didn't have consent. Yeah. But somebody had to have consent to post naked photographs. They'll have to prove they have that consent.
Chris Patterson 34:11
Okay, well, naked photo photographs. Let's talk about revenge porn. So this is a thing, isn't it?
Arran Hunt 34:17
Sadly, it is. And I had to appear in in the Monica court for one person who had gone to the police. Prior to the changes IVR changes, where they had been posted onto Instagram of her photographs, video videos under a name that was very similar to her real name, and Instagram meta had done a good job and we're losing it definitely always report these things to the host providers that most of them are pretty good removing these kinds of content, and was posted again and had had with estimated hundreds of 1000s of views on these posts. The police had given a response of along the lines of Well, you shouldn't have given that person these photographs. Can you actually get this person won't remove the harm that's been done that sort of stinks. So we got involved and had to go to, to the court for her and seek orders against method to find out who the posts were made by now the police had done that. And under the news station that police will do that they'll be required to do it. But at the time, they sort of had this discretion say, well, but I think they didn't have discretion. But they use discretion to say, Well, I actually no, we're not going to act on that. So the changes now forced them to act and those situations.
Chris Patterson 35:24
Yeah. And of course, the difficulty was getting the police to act is that ISIS minutes, it's just my perception is the reaction is going to depend on who the complainant has. And where the complaint has actually made, you know, ie Which police station you go to, and how lucky you are or unlucky depending on you know, which you know, officers happened to be on on duty or on call that particular day, because the police don't have or I mean, I'm stand to be corrected, but I don't believe they necessarily have a universal policy across the whole country, that if someone walks up to the front counter and says, for example, Hey, I'm I'm being targeted was a was a revenge porn, a tech that, that you're gonna get exactly the same service wherever you are in the country. Is that I mean, is that been your experience or perception?
Arran Hunt 36:20
Yeah, it has. I think if someone who was older or someone who was not a young female, it wasn't a situation had gone to perhaps a station in a more affluent area. Yeah. BNC may have gotten a different response. In this case, we wrote to the minute letter to the officer, we actually wrote to the Minister of Police and didn't get a response until we got another MP involved. And our MP, the MP who actually bought through the IVR legislation, actually going to evolve the extra response from the restaurant police of saying, Well, this shouldn't happened. So well, that point it was way too late. Because there would have taken quite a bit of time. I mean, it's time to go through those diligently those hurdles trying to get a response, especially when a judge says to you, Mr. Hunt, where the police were you sitting standing in court? You select your honor, I wish I could tell you, even the court is asking the question as to whether police weren't involved. So the changes, does make a move in that direction. And I think the police are getting better. I did do a webinar for Intel less than a year ago, almost six months ago with a colleague of mine about online harm or Rasta family violence, and the police were actually in attendance to that. So they are taking more of an interest now, which is good to see. But in the past, they have been there is this I suppose mentality of things that are online at real. And the police haven't quite caught up yet at times, listen, and haven't that it's a very real probably more real than reality.
Chris Patterson 37:44
Yeah, I mean, I do know that currently now the New Zealand police electronic Crimes Unit is suffering significant capacity issues, like their ability to be able to investigate electronic crime as a severely compromised, and it's simply because they've just got too much work and not enough resources. And look, I mean, they've always struggled about I mean, my first dealings with them was 25 years ago. And that was right at the at the sort of infancy so we're sort of starting up. But look, since we're on the on the topic of revenge porn, I've got to go get a jump. And I've got an old war story on how she was. I mean, this was pre the legislation. So this is go back to 2001 2002 are this lovely young couple come in and see me their solicitor referred them to me and they sat there in front of me and my chambers, looking quite sheepish. And, and I said to her, Look, you know, what's the problem? You know, what can I help us? And what they explained to me, as I said, Well, look, we received this, this this very nefarious letter. And when I say we received at work, that the father in law, so So the fiancee, the woman's father, who was a was a priest had received this letter saying, along the lines of I was jolly surprised to find out just used the name Smith. That's not the real name. Smith on the internet Lord knows how many more there are. And there was a URL, okay. And this, this retired priest, who's who's in his 70s, never used a computer in his life had no idea what a URL was, but could see that his daughter's name was in the, in the URL. So anyway. He then sat down when I say, Hey, this is the male client, and got on his laptop and, and he has these videos of us of his fiancee in the middle of sexual acts. And they were really upset about it and couldn't figure it couldn't initially figure out you know how this all happened. But then had worked out that a few years earlier, she had been out of out of work function. When home with a colleague, she believes that she was drugged, but possibly drugged. And, of course, it's been that recent case in Christchurch or name suppression. We weren't breached name suppression at all, etc. We are those, those individuals down there have been convicted of sort of similar behavior going to pass dragging woman taking them home sexually assaulting them, etc. So that so that sort of scenario, this is what she was saying. And she said she remembers but wasn't quite sure that there was a camera involved, and then thought nothing of it until this incident had popped up. And that was all she could come up with. Anyway, to try and move this war story here a bit quicker. We worked out who the individual was wrote to them and said, Look, this is horrific, you know, you need to take it down. He then sent us his back in the fixed days 15 Page fix way off on various tangents. But you could tell that he was not mentally exactly that particularly stable, which then led to a decision to issue proceedings. Ex parte is a little bit of old late in the without notice, for those don't know what ex parte is without notice of the defendant to apply for a search order. And back then, according Anton piller orders, so that we could go to his house and seize his computer because, you know, we needed to gather up the evidence, further evidence of his involvement, we had sufficient evidence to point the finger that he was the publisher. But we had to you were to shoehorn some old law into that. And then the two torts that we jumped into, was was one of defamation. That was one of the ones that we ran with. And we said, Well look, the postings defamatory, because it suggests that she has consented to it. Okay, and it's defamatory of here. And the court accepted. Again, this was all without notice, to the defendants, I didn't get a chance to argue with her, I argue against it. So whether whether or not that was a good argument, but the court accepted that on the face of it, there was prime and face a claim quite a strong arguable claim of defamation. And the other one that we slipped in was the tool of confidence and said, Well, you know, when two adults are an intimate sort of relations, you know, for for those the, you know, are having sex, and it's being filmed. You know, there is a there is a there's a confidence that's there, and the confidence as you aren't then gonna go on three years later and put it up on the internet. Court accepted that granted the search order. execution team tuned up at his house, sees his computers and various other things. And yeah, everything was there. The matter resolved shortly thereafter to the satisfaction of the clients. But what a horrific thing for them to go through. And I mean, one of the things that they said to me was, we need this taken down immediately. I mean, she's a very senior manager and a large organization. And you imagine the impact on her career. If this revenge porn as as made more widely available, unfortunately, back then 2001. It was a different world. I mean, now, there's just no way of controlling content on the internet, once it's once it's unleashed.
Arran Hunt 43:08
Well, now you'd have that you have under the HDC, actually, under the Crimes Act as well, of course making recording. Then, as you say, things that go online, we just had a clash all the time, and you post online as an online driver. If you click Delete, not deleting at yours, removing it from view, it's still there, someone could have took a screenshot and put it somewhere else. I didn't thought I want to mention the in regards to the HDC act, sort of give an example as to a quick snap as to how it fails. There was the recent situation in the US where there was a number of streamers, so gaming streamers on Twitch, or on YouTube, who had had deep fakes themselves made us feel that someone had got got their oranges up on the screens, made deep fakes of them doing pornographic material and put it onto a pay site campaign see your favorite streamer in various stages of undress. The issue with that, of course, is if that was New Zealand, the person who did that and he came out and with a rule of sight when it when it was raised his attention that no one actually liked it was that he did it for the money. Now he didn't do it to cause them harm. He did it because he wanted to make some money off their imagery now as a financial gain financial gain, there was no intention to for him to be hurt by it. He didn't actually really care. Now, if that was under the New Zealand legislation, what would the crime actually be? There was no intention to cause harm. So there's not gonna fall under the crime as part of the act, the act, the new IVR patch of the Act don't cover deep fakes. Possibly we don't think they do. But I'm sort of wanting to argue at some point that perhaps we can sort of, shoehorn it in there.
Chris Patterson 44:39
Maybe a fair trading act, you know, misleading or deceptive conduct or trade.
Arran Hunt 44:44
They'd help us improve Of course, that you actually thought it was that person they have to do porn on the side. So the legislation especially around deep fakes, legislation doesn't go far enough. And I think we're waiting for that one big case in New Zealand when it comes to those areas where we're going to be jumping on Have we gone? Well, come on guys, this legislation doesn't work. And that would have been the perfect example if it had been in New Zealand. Yeah. But we're going to see that here somewhere. Now we, of course did argue with the Senate committee at the time of the the changes that deep fakes need to be part of that individual material. Because frankly, if you're a victim, whether it was you or not in the video actually makes no difference. You know, you can prove it, you say, well, it wasn't me in the video, people go, Well, looks like you. And the harm is caused, but the harm has caused this, but you're doing the action in the first place. So the omission of deep fakes from that, that IVR really does cause issues.
Chris Patterson 45:33
Yeah. Okay. So it's definitely an area of potential reform. And this, there's a need there. And of course, let's talk about AI in a minute. Because that's, that's quite a topic in itself, because Because AI is going to enable deep fakes even even more. But before we do, and I want to leave the area of the criminal side by talking about, you know, the dark web is take a deeper dive into the dark web. Now there are going to be listeners that have that have heard of the dark web, but don't know what it is, how it operates, etc, can you can you give us some insight.
Arran Hunt 46:06
So we have the word that, you know, is basically a term for there's a term for the the way that we all say that, you know, the Facebook's, the Googles, that sort of stuff that's open and visible, and you can be tracked while you're using it. Now, the dark web is generally done through Tor, the onion router itself stands for a few other bits of software. And it's a web where the idea is that you cannot be traced, they cannot be traced, you can use the internet that these websites without anyone seeing that you're using it, or the government saying that using it.
Chris Patterson 46:40
Okay, so let's just stop right there for a second. And we're going to have to get into a little bit of technical discussion for for listeners here. So the internet, and look, I'm going to call upon you. But this is my rudimentary understanding I mean, the internet is, is to a large extent, it is a connection of computers. And when I say computers, they're not necessarily like my laptop, and people can't see us here, but I've got my laptop on the desk, all interconnected, but it can be servers as well, etc, sitting in large server warehouses, but they're all connected via IP address Internet Protocol addresses, so that they're able to, through a looking at routing system, be able to say, hey, you know, I want to move data from from from this address to another address I from one computer connected here to another computer. And to a large extent, I think we've also got to say, it's not a direct computer computer because it because often it's it's a it's a router to router that is then connecting computers, and subnets. Now, so I hope I hit I've tried to simplify it as much as possible, but maybe the way of looking at as like a tree structure...
Arran Hunt 47:57
You're looking at a massive spiderweb. When you're, you're at one point in the spider where they're somewhere else. And each of those points where the webs Interact has a number, you're sitting at that one point your number is 34, it's not even greater than that, you want to go down to 78. Now that's going to bounce between all those little and they'll junctions as it goes across the web, it could have multiple ways it can go and that the internet works in that it finds the fastest route for you to get from A to B. But all throughout that link, of course, those sites are set those those different connections that you bounce through different servers around the world, we'll be seeing you going from A to B from 34 to 78.
Chris Patterson 48:38
And can be recording it as well. And going we know that you're sitting on your computer at 38. And you're sending data or receiving data from 72. Okay, I know we're using very simplified numbers, because the numbers are much more complicated. And there are sub numbers sitting under those as well depending on how you're going. But let's keep it simple. But your what your point is, is that when you're using, you know, or just say, the traditional internet, all of that can be monitored often by computer technology itself, and be recording exactly what packets of data what information is moving across the network to you and from you. Whereas the dark web is a technological solution so that you can participate in online activities without the standard technology being able to monitor what you're doing.
Arran Hunt 49:35
Yeah. So in regard so if you are say I'm here in Auckland, and I want to use Google there's probably be going through six or seven different connections before it actually gets to Google. Yeah, seven, seven points to the recording where I've been now dark, the dark web, which one like Tor, I refer to it as like pass the parcel. We had the Euro code where you know you have a gift with like multiple layers on it. Now, sad for icing After passel of motion, it goes to a random number, say 256, they take off, the first layer goes somewhere else or another number, next layer, and it bounces all the different connections. Each of those only nine, the one before and accurate. So it has like three or four different bounces, they don't know where it originally came from, or which will or it's actually going to send the final person hope as the final, better parcel, because okay, it's going to 72. And they deliver it to all those functions in between, but we'll only know two connections, but not the entire length, so they won't know that I sent it or where it's going. And unless you're at the federal, the state at the end of it, that keeps that communication, theoretically, sort of confidential, yet that the toolbars are talking, but nobody else can tell.
Chris Patterson 50:41
Yep. Okay. And because, you know, the dark web is a technological solution for those that are wanting to have our anonymity and not and often the reason why they want to gain immunity is because they are intending on committing crimes, whether that's procuring narcotics drugs, whether it's engaging in child pornography, look at whatever your imagination is around crime. If if there's a way of sourcing what you're looking for the dark web provides an opportunity for that, and surely must be a frontier that our law enforcement agencies in our in our legislation need to be able to look at to say, hey, there's a system that's in play that's enabling crimes to be attempted, at a minimum committed, when they fully executed. What can be done? I mean, have you got any thoughts around that space?
Arran Hunt 51:39
The times where they have taken down the, you generally have these sites that pop up on the dark web. And they will be two or three at one time that sort of covers most of the trading, it can be traded to sit in drugs, and narcotics could be child pornography, there's a lot of trade and personal information, fake passports, that sort of thing. These generally come down to when one of the hosts makes an error, I'll post something which will link them to an email address, and they are under constant scrutiny the websites on security, these sites are like train me, they have reviews, they have rankings for people, you know, you, you want some of a certain act to and say what they will say they've had 150 customers 103 affiliate likes or two bad reviews, and you sort of go and review these things. So they're actually pretty good structures. They're just selling a really bad product. So generally, they'll come to the point where someone will make a mistake they'll get, they'll click on something in the wrong place, or they'll put an email address somewhere. The authorities will find them in the past. But the downside is that they're gone. And they're arrested them and keep the site running for a period of time. But all that time, they're sitting there watching these people paying with credit cards giving delivery address, and basically even just doing committing crimes, and at least would lead to you'll see articles in the paper where they'll have like 1000 arrests around the world in a matter of 24 hours as all these various particularly sponsors get together and do mass arrests based on this crime.
Chris Patterson 53:01
Yeah, well, I mean, you may have picked up in the news feed. It's about this time last year, a global drug operation where law enforcement agencies are suspect, also DEA, the DEA and an America someone there had created a messaging app, which I thought was fed to a genius or they created a be such a gap. And they managed to get these drug cartels to start using it.
Arran Hunt 53:26
It was the funniest news of the year. Yeah, I love that. Yeah, yeah. And they had the score they had these guys actually work here we have one of the main guys doing it, who was selling their service $1,000 every month and it was people basically, he was paying the the, the CIA or somebody for paying, paying them for the right for the for them to watch and read their emails. It was it was hilarious.
Chris Patterson 53:51
Actually, anyway, I kind of forgot he had a meeting at some branch of the Da da and someone comes up with their idea of the week it says why don't we create a messaging app and actually give it to the drug cartels and see if they'll use it and then we can monitor all of their communications and charge them at the same time anyway. So doesn't look dead actually made its way all the way into New Zealand and Australia as well and lead to a few arrests here down under last crime before we start talking a bit more about practical applications of of the Internet to law, as a bit of this week, is the last night bit of news coverage on on phishing scams. You know, these are for listeners, these are the scams where we get an email that looks completely legitimate, or you get contacted by someone who comes across as being completely legitimate, but they were fraudulent actor, okay. And they'll go to quite two amazing extents of setting up fake websites that look totally legit Get to legitimate businesses. I'm in this this one on the news last night was Citi Bank. And a New Zealand woman here in Auckland wanted to invest $100,000 and went online for the details and was asked for verification at all looks all legit the money is transferred, often gets transferred locally to someone who's tied up in a as a victim and another scam. Often it's a romance scam in Psych. You know, I'm so in love with you. I'm going to give you $100,000 This week, but I need you to transfer it to my I don't want to pick out countries might be Malaysia. Malaysia excetera. So you know, this is another area of misuse on the internet. Again, Arran, you know, as it's really just a, be careful, be aware, be mindful, I know that there are scam, sort of scam alert websites overseas, nothing here locally, maybe that's something we need, what do you say?
Arran Hunt 55:58
I think people just need to learn to be more Yeah, be more careful. The app is as easy to go on to the genuine site and just copy it. And within a matter of minutes, you've got an identical site, but with you're running it rather than they are.
Chris Patterson 56:12
And using similar domain names so that it's you know, it does look similar.
Arran Hunt 56:16
Exactly. Yeah, you could have Citibank or Citibank, actually us or Citibank dot, some of us, it's so easy to do that, you know, look at in like, zoom, zoom that us. It's such a strange domain name for them to have chosen to use, but that's what they use. And so I think, well, that's a scam, but it's not that's the genuine site. So it's always hard to tell what's genuine and what's fake. If in doubt, always go to people that you know, are genuine. So go down to your bank, and ask them, Hey, this is taking place? Is it real? And now? They will probably possibly I will tell you, I'm gonna Netsafe Netsafe have a reporting function, you can go and ask the IT sector to look into that and say, Hey, is this genuine? Is this a real website? And they will probably be aware, but if there's others who are asking the same question, so if you aren't certain, or it's something that you haven't done with before, or it's a new contact you have made, go and check these things out, go and talk to people who would actually know these things. I'll have clients on occasion, see with her, I got this letter. The classic one is the good old IP letter from various IP companies saying, Hey, we're acting for for, for WIPO, or someone, here's a fee, you have to pay. And actually it's a scam, you're basically just paying for nothing. And I've kind of say, hey, is this genuine? Response? Like yes or no? Or just? And yeah, so if you've got a lawyer, go ask a lawyer sometimes. Okay, ask them.
Chris Patterson 57:31
So I mean, obviously, the alert level that someone should be or the key they're taking when it's someone new, but, of course, it happens. Our case law has shown although to be fear, middlee, it's really overseas case law has shown examples of these phishing scams, where you, the business has an existing relationship with a supplier. And they've had it for years. And then they've been hacked into by a fraudulent actor, who then goes off, you know, every month, they pay, you know, various sums of money to the supplier, I'm going to email them posing as the supplier and say, Hey, our bank details have changed, you now need to change it to this. And of course, the company goes, I have been dealing with them for 20 years, and they've changed the bank account. Sure, we'll start directing the payments that way. So I guess the lesson there is, get on the phone and just check with your suppliers that it is actually the details that you've been asked to change.
Arran Hunt 58:36
I mean, it's a little practical typically aren't definitely, law firms will do that every time we do a transfer, if we don't already have the details online, and our systems will be doing a phone call and saying, hey, just want to confirm that email The number you've gotten here, please give it to me again. So I can confirm the number. And we'll call them on a number that we know is their number rather than them calling us. It's just always a double checking. There's been so often cases and even in New Zealand recently I know of one big firm they have to pay $100,000 to the wrong wrong party. exactly that reason they got told the wrong details. They didn't double check it and $100,000 gone.
Chris Patterson 59:07
And what you know, some people won't appreciate is that if you get a bill, and it's a fraudulent bill, because the details have been changed. I mean, you know that you are your supplier some money because you're you because you've got the product or the services that you've been sent a fraudulent invoice. Paying the invoice doesn't mean you've discharged the details supplier, you still owe them the money. It's that's how it works. It's it's not a great outcome for the person paying.
Arran Hunt 59:38
But that's just the way the law works, especially for larger companies who will get lots of these invoices coming through. And if they're a small enough amount that they don't bother even checking the risk and pay it Yeah, they weren't doing financial worth six months later, what was his money gone? And I was this account number. So it really does require staff to be vigilant over these payments. If there's a change in account number if there's a new invoice, a new invoice type or there's a string Ah, in some sort of structure, check these things out.
Chris Patterson 1:00:02
Yeah, no totally 100%. Great advice. Hey, let's talk about some other recent developments and the Internet, social media from overseas, gun sales and Google. Now what's happened there.
Arran Hunt 1:00:13
So this is the one that actually fascinates me the most. Gonzalez was sadly a student who was shot in Paris during a terrorist attack a few years ago. And her family on her behalf has taken Google to court on the basis that Google would use this recommendation algorithms to recommend videos, they will take people down the rabbit hole into this more extreme sort of terrorist mindset. And that's the Supreme Court and it was February, they did submissions for that, and we're waiting for an outcome probably still a while to wait. And there is a sixth thing called Section 230 In the US, which basically gives these protection to these platforms. So they're not not seen as publishers that they are purely there as a platform to provide information they can't be held liable for what the information that they host on their systems. Now, the question from Gonzalez, is that not so much they Google held these videos that were sort of terrorists based, but that they were recommended them or taking people in that direction? Was there? Was there a breach under other legislation like the anti Terrorism Act? Or were they protected by section 230. And this is the big one, because that algorithm that recommends videos is the backbone of things like YouTube, if you can go on there, I can see that the channels I subscribe to, I know their videos, I know their content. But for the ones that don't subscribe to those recommended by YouTube based on what I what my views are. Now, if I get recommended these other videos, if YouTube's held liable for what they recommend to me, they're going to recommend a lot less videos, we're going to see lots of recommendations of sort of more, more high profile, sort of no very vanilla and bland entertainment, we're not going to see the more fringe of staff, which is often the good stuff. And it could be no it won't help the marginalized communities get information on that you're going to see a lot less, be frank, a lot less non white male people on YouTube, and I see a lot, a lot less LGBTQ on YouTube, because they're not going to be recommended on the basis that somebody might pursue YouTube because they were offended by it, or there was some harm caused by it. So section And under Gonzalez, section 230 needs to be protected on the basis that YouTube was there to provide the service. And without their protection, they'll stop doing that.
Chris Patterson 1:02:31
Yeah. And this has been a hotly debated legally debated issue for for 20 plus years is the extent to which platform providers are vying or not necessarily vicariously liable, but actually liable, because, you know, the hosting the content, and it's available, and if a breach was the law, that's there now. So the Supreme Court, we haven't got a hearing date for that.
Arran Hunt 1:02:59
This is a watch the space scenario it's been heard has been here February 20 21st. Think it was they heard that and they heard a one versus Twitter at twitter one following day. So there was two very close together on a very similar set of aspects. Now it's waiting for a decision, there was a lot of submissions made by a number of parties on both for and against the argument of Gonzalez. And that's basically waiting to see where where it goes. I think largely they were in support of Google. Yes, at the basis not so much for Google, but the basis that there is a need to protect that allowance. Those that were supporting Gonzalez with those who are typically groups who are offended by online harm.
Chris Patterson 1:03:39
Yeah. All right. And the other one, just while we're on that topic is for some Facebook posts...
Arran Hunt 1:03:45
And Facebook was, of course that they touched sort of rich, the Supreme Court or anything I went through that the Supreme Court knocked it back, but much the same set of arguments in the force. That was against Facebook, where it was actually taken by Hamas, and there was five people who were killed by Hamas and various attacks. And Hamas, of course, are seen by the US as being a terrorism terrorist group, where the rest of the world will see them possibly as Larapinta, where you asked how you see them. So there was an argument that Facebook had been encouraging people to go and join Hamas, or what I'd encourage you to perhaps go and look at their posts or people or who were part of them or part of their supporters know, people you may know that you may get along with or there's an Hamas event that you may want to be involved in. And the researchers found that if they were researching that area, or they had liked a post by somebody in that community that start getting more of these posts that would direct them towards more hardline sort of Hamas based terrorism posts and events and that sort of thing. So they were seeking action against Facebook that Facebook had gone past the point of merely just sort of being a host information but actually being putting that information out there and encouraging people to go down these, these these routes towards terrorism that got up to the Supreme Court who wouldn't hear it? They basically said that they had gone through the courts and the courts head. While they had been I think the Chief Justice at a Court of Appeal had gone on the side of force that he had gone against the court. There was no justice katzmann. But the majority had gone with Facebook on the basis that section 230 does provide them that Andy Murray, their protection...
Chris Patterson 1:05:30
Well, maybe we should be sending Zuckerberg a bottle of wine for all the case law that has been created by US company. moot staying with Facebook by bringing it much closer to home. Although, you know, here down under Ross, in Australia, the it looks like the High Court of Australia, Australia's highest court is going to deal with the the Facebook and the AIC appeal. What can you tell us about that case?
Arran Hunt 1:05:57
So there's always that idea that when you're dealing with Facebook, you know, who exactly are you dealing with? If you're an American, you're dealing with Facebook Inc. If you're dealing with Facebook, or anywhere else in the world, dealing with Facebook, Ireland, Ltd, who handle all the international operations of Facebook, outside the OAS, when you see a Facebook, New Zealand or mission New Zealand, they're generally just an advertising arm, they have no actual operation control of Facebook. So when there was action, in the Australia, the court was sort of saying, Well, are we doing with Facebook Inc? or their Facebook, Ireland? Now? Which one are we actually dealing with here? And they sought action against Facebook and dashes. So actually get against both of them. And Facebook, Ireland didn't actually contest that they were the party to go to they said, Yes, that says, Facebook in a Inc participant and said, well, actually, no, we're not dealing with operations in Australia, that's Facebook, Ireland. But what the court did find was that Facebook Inc, while they they were providing a service to Facebook, Ireland, providing a service for Facebook Inc, it was very sort of circular. And the procedure. So you had Facebook Inc, you're using cookies and to Australian clients, they were the ones who were operating there. And the courts were saying, Well, really, in reality, it's Facebook Inc, that we're dealing with whether you have agreement in the two parties as to how things work. As far as we're concerned, we're dealing with Facebook, Inc. Now, if you were used to using Facebook, of course you can agree as to who it is you're dealing with this jurisdiction or agreements and that sort of thing. But when it comes to governments, when they have, say, privacy laws or information laws, the government can determine whether those those agreements, work or not. And in the Australian case, they were seeking to get Facebook encoded as as the party rather Facebook, Ireland. And the most recent one was the federal court where the court did knock it back saying no, it is still, even though they agreed that Facebook Inc was highly involved in the operations. They were still faced with Ireland you're dealing with, and that's now been appealed up to the High Court.
Chris Patterson 1:07:51
Yeah, the High Court of Australia. All right. Well, look, we mean, in that case, of course, the issue of privacy comes up and let's talk about online privacy. I mean, to an extent, you know, we do have legislation here in New Zealand Privacy Act 2020. Its privacy. Version 2.0. I guess you could call How does? How does the privacy our privacy legislation fit with with the internet, we're as at the intersection.
Arran Hunt 1:08:22
Our legislation is similar to a few other restrictions, we've generally covered it from the Canadian law to some degree. It compared to other jurisdictions, ours is more of a response at times rather than an actual action to maintain privacy. There is a need to notify the commissioner if there is a privacy breach. But the fines and there's there's a final fine, the EFF approach does take place, but it's frankly, kind of small $10,000 maximum fine is what the allowances which in modern modern worlds if you're a Facebook or you know that that's that's nothing that's not worth going to court for. So the when they did bring through the changes couple of years ago with the new Acts, everyone does sort of see that as being a bit of a bit of a whiplash ticket to approach to how we deal with it. It also does do emphasize on the reporting of the breach, rather than perhaps the breach itself being an offence, that it could be seenas an offence if you were sort of being blase as to how that the procedure is, but the focus is on after the breach rather than before the bridge.
Chris Patterson 1:09:35
Yeah, and one area that is for example, if you if you maintaining a computer system, and it's got private data on the information about individuals that look it might even just be let's use a real simple example, marketing mailing list. Someone hacks into your system, there's going to trigger an obligation under the Privacy Act to report to the Privacy Commissioner that your your IT systems have been compromised. Someone's had access to your toilet and his private, private personal information sitting on there. This is what's happened. Yeah. So that's an example, isn't it?
Arran Hunt 1:10:11
Yeah, it is. And while it was it was a small fine, they are the biggest detriments going to be is that once you've reported to the commissioner, you have to then report to the users who are impacted if it meets the threshold for the harm. If you were was a very minor data, just a list of email addresses, the Commissioner might say, actually, it's not going to meet that threshold for harm the information probably route to the public. If it was dealing with more private information, then you're going to go to all those people who were impacted and say, Hey, we have had a breach and this information has been taken. If you can't tell what was taken, but maybe you had a breach. You had all your clients and say we've had a breach, we can't tell what's gone out, quality, maybe impact impacted. So there's reputational, there can be quite embarrassing for an organization very much. So. Yeah. For a law firm be devastating. Yeah. And that's a big fear of ours being very secure, and what we have in our systems.
Chris Patterson 1:11:03
Right, okay, well, it will absolutely, of course, and you know, and the internet makes that information, you know, obviously behind firewalls, but you know, there is that information, the women, and we've gone through now, and we're still on, arguably, in a pandemic, that this whole work from home, lawyers have had to become more remote digital nomads, and of course, the it's taking it from the, from the bricks and mortar walls of the law firm out into the to the wider environment. And those risks start multiply.
Arran Hunt 1:11:37
Lawyers are a honeypot, we are an ultimate target, you go into our systems, no matter how the size of the firm, you're in there, you will have bank information in there, you will have what even just as I said, when we doing a payment for client, we may have a history of going to a certain account. But if someone goes and changes changes their history and our systems to something else, we can't have to change that. That account number, we make a payment to the wrong account, because that's what matches our systems and somebody else has money. It's, it's too easy. It's too easy for as much data see these things. So I sent him most firms to be some element of risk there. And while the finest small, I think the fine should be should be a lot higher for situations where there is no monetary loss to somebody, but there's personal loss of information. The reputational loss can be significant, and it will destroy a lot of companies. We saw it with the attacks constantly to the places DHB got attacked, that was locked, but it was still significant damage to people who who use that system.
Chris Patterson 1:12:40
Now, staying on the topic of privacy. Just as a last part to that the internet the right to be forgotten. I mentioned before the say to clients, and it's true. I mean, it's good advice. You know, once something's on the internet, unless the person who who's controlling that content, voluntarily takes it down, maybe under compulsion of a court order, but takes it down. It's the way it has the right to be forgotten come into play. As such, right.
Arran Hunt 1:13:15
There is a right for that in Europe, but not in New Zealand. We have seen we have actually tried to act for a client previously trying to get on that pathway where there have been articles about her charges against her those charges weren't found. But we did go to the various publishers and say, Hey, there's there's articles, if you Google, our clients names, articles come up, and they made some allegations against her. The courts found there was no charges there to be heard. But the media does have the exemption that they're actually while they were putting the truth at the time those allegations were made that article was there. When it comes to actual court decisions, there is an allowance for those publications, there's decisions to be published as long as they're not suppressed. And that to not be a breach of human rights to publish those business decisions. So and New Zealand law as it stands, there is no right to be forgotten when it comes to at least tick infections.
Chris Patterson 1:14:08
Yep. And look at it's a difficult area, particularly when there's, I guess, a media report that paints us, you know, a subject, an individual or a business quite negatively. And of course there can be there for a long time. One angle that I've had clients take, which has had mixed success has to say at some point in time. Those posts have I call them posts or publications become a little bit misleading and deceptive because time has moved on. And by putting it there even though you say the date is 2005 anyone reading it could think Well, it's actually something that's that's more current and relevant. So as I say, had a little bit of mixed success with that approach that approach right. Final developments more We'll probably technical let's talk about artificial intelligence, AI and the law, and maybe the area that might have some lawyers feeling a little bit anxious as, Hey, are we all going to be made redundant? Or are we all going to be looking forward to spending more time on the beach? Is AI going to replace us? What's your thoughts?
Arran Hunt 1:15:23
I think in the short term, no. So in the next year or two, now, I think it is still some that we're going to learn how to trust and use it correctly. I think within the next sort of four to five years, we're gonna see a lot to your juniors. A lot of more of the work being automated already has now when it comes to more general stuff, things like conveyancing Well, I think, eventually leave pilot legal efficient and will become an online service that you can do yourself at AI. When we get to sort of 1015 years now, I actually had a good discussion about this about three years ago with Judge Harvey, who mentioned his book earlier on a discussion over using AI to determine what a court does. And this was before we saw generative AI, we were sort of thinking about sort of 1015 years out not by right now. And our thoughts were that if you gave an AI understand text, as we can say, with this language by link, there's decisions decisions, that AI should be able to actually go through and decide what the outcome should be. And his thinking was that we get to the point first, where the court will use that to advise the judge, then the court would move to the point where the AI would provide it, and the judge would check it, and then move more and more towards the AI just doing that job. Because I can do it so much better than a judge could do it, they could review their decisions. And they could be prevented from showing bias. We know that the courts can be biased against certain people, ethnicities, that sort of thing, backgrounds. And this would remove that. The other scary part from there being log x as we are, is that if we put these decisions through the AI, they're going to point out where there was bias. And that's going to create an absolute mess with the courts. When the AI goes, Hey, this decision here was actually wrong. It was it was inconsistent was everything else. Yeah. Apart from the fact this person may have been a certain ethnicity, yeah, or a certain gender or a certain identity. And that's what AI is going to provide.
Chris Patterson 1:17:23
So showing parents, exactly, they're provide some quantitative evidence of bias.
Arran Hunt 1:17:30
Yep, this judge in that situation on perhaps not even on that day of the week, or that part of the year, was biased in this direction, year after year on this situation. So AI is going to create by a lot, lot fewer lawyers, hopefully a lot fairer courts. And hopefully, it will also provide greater access to, to the Lord and most people haven't got now you weren't required to go and pay lots of money to a lawyer to do a long job, it can be done a lot faster.
Chris Patterson 1:17:58
Like simple templated documents, you know, for example, uh, well, you know, we're, which doesn't require a massive amount of customization, AI is going to be able to produce at least a reasonably good first cut, exactly, that you won't have to pay for what you would have had to in the past. So from that, I mean, from the technical point of view, I mean, we AI still got a long way to go before, it's that full concept that AI could replace, you know, large aspects of what we do as lawyers, because if we look at the technology they've been using, for example, Google, and we've been using legal databases for decades, you know, a couple of decades now. And it's been operating an algorithm based type technology. The advancement with AI is just taking that a little bit further, where the algorithms are becoming more sophisticated of going well, we'll apply predictive percentages that when someone uses a certain sequence of words, then it's likely that the next sequence will be this in most instances, and that's where AI is, is that it hasn't got down to a more granular level. But that will probably come when the systems are able to go not only as the percentages that those words are most likely that but then if we apply other variables, like for example, rebuttal arguments, or, you know, where we've had cases that have been inconsistent. These are the factors that were put in place to determine outcomes one way or another. We're not there yet, but that's not far away. That's on its way.
Arran Hunt 1:19:49
It's not far away, I think. Even a year ago, look at how we talked about AI. We're still talking now years out. And then we've seen this massive growth in six months, where we've gone from things that were unknown Well, let's kind of call we saw, I saw GPT three party about a year, a year a bit ago. And we've got access to that. Before it was public and worse, as we asked it. The guy showed to me said, I explained to a five year old the consumer guarantees act. And this provided cleanly simply worded thing about, imagine you had a toy car broke. And it was it worked perfectly, and it fit the situation. And this could take in this bit of legislation and provide a good example of it. Now, that was a year and a half ago, and things have gone up now astronomically and how fast things have gone.
Chris Patterson 1:20:34
I mean, the the accuracy is going to get better and better. And in terms of being able to provide an accurate response to to a query, it's getting better at understanding what it's reading.
Arran Hunt 1:20:45
Yeah, there is times that it will go and make things up to try and answer the question. It's getting better at doing that. But it is going to provide a faster, quicker solution, then what can be done now. And, and be able to, like we have a gut feeling as lawyers, you and I will read something will go on our gut feeling is this and we know that gut feeling is based on years of experience we could probably spend. Nowadays, it's been a week. So justifying what I got a feeling is, I can do it straight away, it can say this is my gut feeling. And here's all the reasons why trade away. And what you and I would take, you know, the gut feeling we can do in a second. But the justification takes a week, they could do both in a second. Yeah, it's where our jobs probably come easier, because we're sort of expert level. But as you go down into the more junior junior levels, those paths get replaced.
Chris Patterson 1:21:34
Oh, absolutely. So I've got to write some submissions this week, looking at what an interesting area to do with the intersection between legal aid and contingency arrangements. And and I need to I need to get my head around where the case law is here in New Zealand, Australia, the UK, possibly Canada. Now, traditionally, I would ask a law clerk to go ahead and do that I'd frame up the issue and say, these are the areas that I want you to look at, or might even ask the the Law Society's library staff who by the way, do an amazing job, I used them for 10 years, I just, every day just perform and produce the most amazing research. But the roles are the ones that are going to be at risk. Because the AI if you frame it in the right way is going to be able to to a find that law, whether it's at legislative level through to case law, secondary legislation, etc. Summarize it in an in an a very efficient way to then allow the likes of you and I at our level to go. Okay. Well, that's the existing base of law that we've got to deal with. How do we now apply that to the facts and the argument that we wanted to put forward to the court?
Arran Hunt 1:23:00
Exactly, yeah. And it's when we get to the point, I think we're getting close to it. When AI like As humans, we will be able to, again, have that gut reaction as to when things aren't quite right when the sun is off. And AI using those percentages without looking at these things and going well, that one day looks like it's wrong. So I can say, Look, you know, here's 100 decisions about this area, or go find them for me in the first place. Eliminate the ones where something wasn't quite right. Yeah. Or there was an argument which seemed to have a better chance of success. And then we have our arguments for us. And we can say, well take those arguments. Is his his situation transmitted my submission. It was done.
Chris Patterson 1:23:36
Well. Yeah, absolutely. And then there's sort of that sort of real grinding analysis work that. I mean, because I'm a litigator. So often, you're reading briefs of evidence, and sometimes you're reading an expert's brief. And you might say to yourself, Well, okay. Wouldn't it be handy if if I had the resources and the time to be able to compare what this expert who I know has given evidence on on scores of occasions on similar topics, whether there's any inconsistency in his or her brief in this case, compared to previous cases, so that I can identify that and say, Well, hold on, here's a, here's a potential angle, to say, you're better than previous cases, you were supportive of this argument or you weren't, but traditionally has taken someone to sit down and painfully read a large amount of information to often not come up with anything positive AI is going to do that in a nanosecond and Sadia whether there is an angle there or not and what that angle might look like.
Arran Hunt 1:24:45
Exactly, and that's going to open up the floodgates for a rich decision where that goes based on the past. As you as you see, as you say, these these experts not always they sometimes do sort of tailor their their opinion for the situation for the client.
Chris Patterson 1:24:57
Or themselves, very cynical. To be quite true, I'm just saying it's quite cynical.
Arran Hunt 1:25:02
I know if you're an expert, I wouldn't do that. But I know one or two I've met, and I'm sitting there going well that know that you're you're using your words very carefully. And I think you'd find that and as in AI could do that very quickly, much faster than we can because it's just throwing around words.
Chris Patterson 1:25:16
Yeah. Yeah, it is. Look, Arran had an absolutely fascinating discussion. We've covered a lot in this. I mean, there's so much more there. But I've got a lot out of it. So I just want to say thank you for joining me on the lowdown under podcast, thoroughly insightful and interesting discussion. Thank you very much. Thank you for tuning in and listening to this episode of The Law Down Under Podcast. You're welcome to join in on the discussion via my podcast page, which you can access at patterson.co.nz That's a p-a-t-t-e-r-s-o-n.co.nz. Thanks for supporting the podcast and tune in again for more on the law, its application and the future of the law here down under.