BY RACHEL BUCKMAN

For 17 minutes the horror that took place at the Al Noor Mosque in Christchurch was live streamed on Facebook. It was viewed 4,000 times before being removed, but was subsequently uploaded to other website and platforms.

The widely-held consensus is that this is fundamentally problematic. Ordinary citizens and politicians, not just in New Zealand but across the globe, seem to agree that such horrific content has no place on the internet. So why is it so difficult to stop instances like this occurring?

While we all may, on principle, take issue with forms of hate speech, at the same time all democratic societies place incredible value on freedom of expression. This underlying tension is the backdrop to all discussions about censorship and monitoring, especially in the public sphere of the internet which we view as free and open for all.

Despite this, New Zealand does have laws to combat the type of dangerous and extremist content that we saw coming from the Christchurch shootings. The Human Rights Act 1993 prohibits “inciting racial disharmony,” a charge which has a maximum prison sentence of three months or fine of $7,000. To be found guilty, the subject matter published must be “likely” to excite hostility or ill-will against a certain ethnicity or race. Additionally, general censorship laws exist under the Films, Videos and Publications Classification Act 1993 for the making or distributing of objectionable material. If the person knew or should have known it was objectionable, they could face a maximum sentence of 14 years imprisonment. Both pieces of legislation were used to prosecute individuals who shared the footage taken in Christchurch or posted other hateful comments online.

While these laws may, to a degree, have deterrent value, they are still only functioning as an ambulance at the bottom of the cliff. They are dealing with minute manifestations of the problem without dealing with the bigger issue at play – the danger the free internet poses to a peaceful and tolerant society.

There is a pervasive and inherent obstacle to overcome – the question of who has the right to control the internet. It exists across countries simultaneously, so when does one particular government have the right to impose limits? When an issue arises, the typical way a state asserts jurisdiction to deal with it is via the territorial principle. In this context, it would mean if the online site was hosted or operated within their territory, that state would have jurisdiction. The realities of the internet are far too complicated for this to be applicable in the majority of cases.

In turn, some states have taken an expansive approach and hold that merely being able to access the material in your territory is enough – as seen in the United Kingdom and in France. On face value, this may seem appealing. We want to be able to hold big internet corporations to account. However, the problem is that behind every big corporation are normal people. The average individual would only expect, in line with the rule of law, to be subject to the laws of their country at the time they were acting. Expanding the scope of jurisdiction, especially in a way that is not uniform internationally, risks placing an undue and unfair burden on individuals who can no longer accurately understand the laws that govern them.

In May, Prime Minister Jacinda Ardern and French President French President Emmanuel Macron hosted a summit in France to adopt a pledge that sought the elimination of terrorism and extremism online, known as the Christchurch Call. What makes this agreement unique is that it is not just amongst governments, but also includes some of the most prominent internet organisations. Seventeen countries plus the European Union have signed this pledge, along with currently eight companies including Facebook, Google, Twitter and YouTube.

The text of the agreement states governments will commit to developing laws prohibiting “the production or dissemination of terrorist and violent extremist content” in a manner consistent with international law. They also highlight other types of commitments, such as countering the drivers of terrorism or supporting industry standards. Online service providers commit to reviewing algorithms, implement immediate measures to help mitigate dissemination through live streaming, and generally applying regular and transparent reporting procedures. Given this is a field which both governments and businesses are invested in, what is perhaps is the most important part of the pledge is the commitment for these two actors to work collaboratively. This includes on tasks such as capacity building for smaller platforms, research, and response times.

It is easy to get swept up in the rhetoric and to see this as a strong, transformative step. While it may be the start of great change, there are inherent limits. This is not a binding international agreement – neither the states nor the companies who have signed on to this agreement are legally required to do anything. The text expressly calls it “voluntary commitments.”

However, forming a binding international treaty is difficult. It requires wide consensus and ratification by the relevant legislatures. Formalising agreements in treaties always creates the possibility of delays, dead-ends, and very likely a much narrower set of agreements. Comparatively, the Christchurch Call was quick and progressive action. Moreover, political and social change should never be dismissed, and can have a real measurable impact. Mere hours before the summit began, Facebook announced that it was implementing new measures in response to Christchurch, including US$7.5 million towards researching video analysis technology that ensures violent footage is immediately blocked.

What is needed now is for this conversation to carry on. Given the global nature of the internet, the only way to address this problem is by consistent, widespread agreement. While at this point important players such as the United States have yet to sign on, hopefully the Christchurch Call will be the first step in the right direction.

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Featured image source: Stuff.co.nz