New Zealand MPs are so keen to be seen to be "doing something" about cyber-bullying that they are about to pass a poor piece of law that will do something terrible

In January this year, John Key and Andrew Little united in their condemnation of the Charlie Hebdo murders. The Prime Minister described the "freedom of speech and expression" as an attack on "democratic principles", while the leader of the Opposition described the shootings as a "shocking attack on freedom of speech" and "an assault on democracy and freedom of expression". Yet today the pair will unite again to pass the third reading of a bill that could have a chilling effect on free speech in New Zealand.

So much for Je Suis Charlie; how quickly fine words are forgotten.

The Harmful Digital Communications Bill will be back before the House today. It seeks to address serious worries about online bullying, something that we all know is causing real hurt amongst as many as one in five New Zealanders. Yet its attempt to tackle bullying is so cack-handed and ill-drafted, that it may undermine journalists' ability to critique, cartoonists' ability to lampoon and satirists' ability to just take the mick.

Despite the Independent Police Conduct Authority saying there was nothing stopping the police laying charges in the Roastbusters case, National is exploiting public fear to force through a terrible piece of law that introduces new criminal charges around cyber-bullying. And such is Labour's fear at the moment, it is meekly going along with it, rather than standing against it for the sake of free speech.

It's been left to ACT's David Seymour to do that.

The way the bill works, is that if you feel something posted online is causing you harm – defined vaguely as "serious emotional distress" – you contact the webhost and demand the offending item be taken down. The host then has 48 hours to contact the author (aka bully) to get their response; if they get no response in 48 hours the default position is that they must remove it from the web.

At least, that was the process until this week, when National added an out-clause to this "safe harbour" provision. Now, the host can choose to do nothing; Justice Minister Amy Adams insists that means they can act just as they do now, following their own terms and conditions. What she doesn't like to say is that by refusing the "safe harbour", companies open themselves to the full force of the new law, including criminal charges.

Because if a distressed person isn't happy with the host's actions, they can go to an "approved agency" and then onto the courts.

So will the Facebooks, news media and blogs of this world stick to existing processes and risk criminal conviction? Or will they take the easy road and just pull things offline?

Yes, I include news media in that list because there's no exemption for news and current affairs under this bill and no defence of truth; investigative journalists can be labelled bullies as easily as bad-mouthed teens or roasters. Or satirists or cartoonists, for that matter.

If a current affairs investigation into a dodgy finance company offends that financier or his family... if a Fair Go report distresses some con man... or if a cartoon emotionally harms a pious soul, they now can use the law to ask for the offending item to be taken offline.

Now, perhaps news sites will hold the line. Perhaps the courts, when the case finally gets there, will defend journalism, satire and the like. Perhaps. Perhaps. But the bill is silent on these concerns.

Adams says people can be criminalised only if they intend harm and significant harm is caused. But that doesn't stop the takedown notices and complaints on the way to court. And anyway, those are such subjective concepts, I can imagine everyone from media companies to judges having to spend huge amounts of time and money trying to wade through the complaints.

Imagine an unashamedly provocative Charlie Hebdo-style cartoon published online in New Zealand. (Or a virgin in a condom promotion or story, if you want to avoid singling out a particular religion). Is that intending harm? Perhaps. It might certainly intend to criticise and condemn.

And if someone in Paris was prepared to kill in retaliation to such a cartoon, it's hard to argue that they were not distressed, right? Now a fundamentalist in New Zealand as a new legal weapon with which he or she can fight freedom of expression and cut away at informed criticism.

So kudos to Seymour for being a politician willing to stand up for these freedoms. He told me today that it's the classic case of public pressure saying 'something must be done, and because this bill does something, it must be done'. And he's right.

There were simple ways round this, such as exemptions for news and current affairs, that were recommended by the Law Commission. National chose to ignore that wisdom, and other parties will fall into line behind this sloppy law for fear of a bad headline.

You might say it's just rushed legislation, except for the fact it's taken 18 months to get here. You might say the MPs have just missed a few subtle points; except the criticism through the select committee and media has been loud and clear.

So it's either stupid politics or cynical politics. You can decide which. Either way, exercising your right to free speech in New Zealand is just about to get a bit harder.

Comments (10)

by Fentex on June 25, 2015
Fentex

Such poor law, that hopefully will be widely disdained and ignored, only wastes time and resources that might be utilised to effectively address problems.

Police need expertise and reasonably constrained but effective means to obtain relevant evidence (such as real world identities of people posting threats online) which would allow them to proceed without new offences to prosecute existing crimes.

The problem isn't what is or isn't legal (I think) but how and to whom complaints are made, evidence is gathered, and offences prosecuted.

Elevating someone's hurt feelings above others rights of free expression is offensive to and incompatible with the idea of free expression and shameful that any adult should be so poorly informed they could contemplate it as law.

by Graeme Edgeler on June 25, 2015
Graeme Edgeler

There were simple ways round this, such as exemptions for news and current affairs, that were recommended by the Law Commission. National chose to ignore that wisdom, and other parties will fall into line behind this sloppy law for fear of a bad headline.

I can see no justification for a news media exemption in this case. I agree the law is stupid, but your suggestion that it should be legal for you to write something for 3 News online, when, if literally identical words appeared on Pundit, they could see you in prison, is indefensible.

If there is a problem with the law, it is not solved by exempting a privileged class from its reach, it is solved by ensuring a sensible law applies to everyone.

That is not to say that I never favour journalism exemptions from the law, but a law banning the causing of serious harm cannot sensibly be one of them. If the law is justifiable against anyone, then it is justifiable against everyone. I happen to think the law isn't justifiable in its present form, but that is an argument against the law, not an argument against the lack of a media exemption.

by Rich on June 25, 2015
Rich

Those who would be criminalised in the Roastbusters case would not be the alleged perpetrators (who, if not deterred by the penalties for rape or posting objectionable material aren't going to be put by another law) but those discussing this online. After all, who can deny that being thrown in jail for rape, or fired from the cops for covering up for your son (allegedly) isn't "serious harm".

The only way to deal with this bill when it is passed is to swamp the system with spurious complaints to IPAPs, the Approved Agency and the District Court (there is no filing fee and no penalty for vexatious activity mandated). Every post on Whal**l, Kiwibleurgh or the National Party website could reasonably elicit a complaint of harm.

by Tim Watkin on June 25, 2015
Tim Watkin

Graeme, maybe. But I don't think indefensible. How about this? News and current affairs have all kinds of unique features in society, one of which is that we sometimes do things that in polite company would be deemed unacceptable. News stories sometimes wilfully harm (arguably doing what in another context would be considered bullying), for example reporting that someone is a criminal, chasing someone down the street, 'stalking' them (aka research). Speech as news has different standards to speech as gossip or bullying.

And while you're there Graeme, why would they not at least have defences in place, such as truth, as with defamation law?

by Graeme Edgeler on June 25, 2015
Graeme Edgeler

News stories sometimes wilfully harm (arguably doing what in another context would be considered bullying), for example reporting that someone is a criminal,

Non-media should also be able to name people as criminals. Non-media should also be able to research people. I am probably generally opposed to making bullying speech of the type I think you are discussing criminal (which only includes speech that is not already criminal, like threats), but can see an argument for it in some circumstances. But I still don't see that I would want a different standard for media and non-media. Can you come up with an example of a sentence you think it should be legal for news media to say that should be illegal for non-journalists to say?

And while you're there Graeme, why would they not at least have defences in place, such as truth, as with defamation law?

Well, you don't always want truth to be a defence: "this is a nude photo of my ex that she texted me when we were dating" may well be true, but it misses the point.

I do however agree that if there is to be an offence of intentionally causing serious harm to someone, the definition of serious harm should include a caveat like "unreasonable" or "unjustifiable". It should also not just apply on the Internet.

by Steven Price on June 26, 2015
Steven Price

There's lots I could say here. But I'm going to restrict myself to pointing out that lots of people seem to be confusing (a) the safe harbour provision (b) the criminal offence that's created and (c) the civil regime. Takedown orders can't be made without being demonstrably justifed under the Bill of Rights (expressly mentioned in the Bill), and without considering these factors, which are likely to protect the media in almost all cases except where they, for example, post some footage of a child being beaten up (are you saying that will never happen?):

(a) the content of the communication and the level of harm caused or likely

to be caused by it:

(b) the purpose of the communicator, in particular whether the communication

was intended to cause harm:

(c) the occasion, context, and subject matter of the communication:

(d) the extent to which the communication has spread beyond the original

parties to the communication:

(e) the age and vulnerability of the affected individual:

(f) the truth or falsity of the statement:

(g) whether the communication is in the public interest:

(h) the conduct of the defendant, including any attempt by the defendant to

minimise the harm caused:

(i) the conduct of the affected individual or complainant:

(j) the technical and operational practicalities, and the costs, of an order:

(k) the appropriate individual or other person who should be subject to the

order.

There are reasons to worry about how the Bill might apply in practice. But it seems that those happy to scare-monger about it never seem to point out the pretty significant limitations and thresholds contained in the Bill, and seldom seem to suggest any workable alternative.

by Moz on June 26, 2015
Moz

Steven, I assume that's the legislation? There are still scary things in there:

(d) the extent to which the communication has spread beyond the original parties to the communication:

This seems specifically designed to make people liable for factors beyond their control. How is a defendant supposed to influence the spread of their original message? If your facebook status goes viral, that makes you more liable?

(j) the technical and operational practicalities, and the costs: (k) the appropriate individual or other person

Those things are really reassuring. Except that judges are not always aware of them, but at least this means that both sides can address the issue. Judge Canute* call still order that material be removed from "the internet" but the defence can at least call her an ass.

* in the interests of not committing a psuedo-Spoonerism I'm using the anglicised name rather than the original.

by Rich on June 26, 2015
Rich

But that, with respect to you lawyers, isn't how laws should work. People should have a clear idea of what conduct is and isn't allowed. Not have eleven factors that get balanced according to the whims of a judge.

And anyone can file a complaint with an IPAP, and it then comes down to their approach. Some (probably overseas) might staunch it out and demand a court order valid in their domicile before they remove anything. Others might accept just about any takedown request presented to them, saving them the risk and cost of trying to assess their merits.

Making the existing laws (libel, privacy, threats) more usable would seem better than creating this new regime, which reminds me of an online ASBO.

 

by Steven Price on June 26, 2015
Steven Price

This list doesn't create independent liability, it's just a set of factors. And I suspect this particular one will usually be used to say "this has spread so far that a takedown order would be pointless."

As for whether judges are aware of them, it's a pretty big call to assume that judges will not read the law they are applying. I think it's rather more likely that they'll be known by the judges than by some of the Bill's critics.

On the other hand, it doesn't strike me as a big call to assume that District Court judges will not be very familiar with the requirements of the Bill of Rights Act in cases that involve freedom of expression...

by Rich on June 26, 2015
Rich

 it doesn't strike me as a big call to assume that District Court judges will not be very familiar with the requirements of the Bill of Rights Act in cases that involve freedom of expression

Indeed (if I parsed that double negative correctly).

Consider a possible scenario:

- a student takes a photo of her teacher coming out of a gay bar and posts it on Facebook

Is this illegal under the HDCA? Would it be if it was a strip club? Or a photo of the teacher smoking a joint?

 

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