The Harmful Digital Communications Act

This afternoon Parliament will pass into law the Harmful Digital Communications Act. If I was an MP, I’d vote against the bill.

In saying that I recognise a significant amount of good will come from this bill. I also recognise that Amy Adams has made improvements to it, which have mollified some of the concerns people have had with the bill, which is why Labour and NZ First are now supporting it. In fact ACT is the only party against – David Seymour explains why here.

Here’s the good aspects to the new law:

  • The approved agency (will be Netsafe who are very good) will get legal standing, and be able to far more effectively mediate cases with Facebook, Google etc where real harm is happening – especially of teens
  • Specifics behaviours which are despicable such as encouraging someone to kill themselves, posting revenge porn etc will face criminal sanctions
  • Has an extensive safe harbour for intermediaries such as Kiwiblog and Trade Me, so that we’re not liable for content generated by others on our sites, so long as we pass complaints on promptly
  • Rather than me having to judge if a comment is harrassing, threatening etc, I can allow the Approved Agency to mediate, or the District Court to rule

The bad aspects include:

  • The 10 communication principles are too wide, and principle No 10 especially could lead to severe restrictions for online speech, with the principle being used to stifle legitimate criticism
  • The timelines for the safe harbour are very tight
  • A few dedicated trolls could make life hell for content hosts by constantly taking them to court, especially as there is no filing fee
  • Different legal standards now apply to offline and online speech

The Press editorial is opposed:

The purpose of the statute is high-minded enough.  It is designed to deter, prevent and mitigate harm to individuals by digital communications. But the thresholds set by the new statute are perilously low and potentially pose a  threat to freedom of speech. …

Both the agency and the District Court must  decide matters according to “communication principles” contained in the new statute.  Some of these are ludicrously wide.  One, for example, prohibits  digital communications that make a false allegation.  As those with experience of defamation law know, that can be an area of endless argument, and the new statute has none of the safeguards provided by two centuries of development of defamation law.  A similar risk arises from the prohibition on a communication that may be “grossly offensive to a reasonable person in the position of the affected individual”. It does not take much imagination to see how that provision could be used by a deeply religious person to resurrect blasphemy laws that have largely (and properly in a secular society) fallen into disuse.   

A complainant will not be able to obtain any redress unless he or she can show that the offending digital communication has caused  harm. But harm has also been given an alarmingly expansive definition by the statute. It is defined as anything that causes a complainant “serious emotional distress”, a disconcertingly subjective notion. 

The statute requires any decisions to be consistent with rights and freedoms contained in the New Zealand Bill of Rights Act. It is odd the new statute should state this explicitly because those provisions should apply anyway. Presumably it was in recognition of the fact that the new statute potentially threatens those rights and freedoms.

The BORA reference should mean that the court only orders material to be removed in extreme circumstances. But until we have several cases go through the system, we don’t know what sort of approach will be taken.

As I said, there are good aspects to this law. It will help a number of people considerably. But as with The Press I fear the communication principles are too wide, and it will result in people ironically being bullied by others using the law for exercising their online.


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