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We believe that this Bill is based on false premises about the nature of freedom of expression and the differences between digital and non-digital speech. We see the Bill as being a well-meaning but misguided threat to the civil liberties of New Zealanders. We fear that the Bill will be ineffective in too many cases where it might be needed most, while being too effective in the cases which are most problematic to civil liberties.
We support the establishment of an agency to assist those harmed by harmful communications and believe that this will go a long way to resolving the types of situations that can be resolved.
We believe that the court proceedings are unfair and unlikely to be of much use. We support the discretion and guidelines given to the court in making a judgement, but believe that the procedures of the court need to better take into account the requirements for a fair trial.
The safe harbour provisions for online content hosts are unreasonable. While online content hosts do need protection from liability, the suggested mechanism amounts to a way that any person can get material taken down that they don’t like for any trivial reason. This section needs to be completely rethought in the context of overseas experiences to ensure that freedom of expression is properly protected.
The new offence of causing harm is poorly conceived and criminalises many communications that are of value to society. If not removed in its entirety, defences and an overriding Bill of Rights veto should be added.
We have also made comments on the changes to the Harassment and Crimes Acts.
A cabinet paper (PDF) shows that the Government has accepted most of the Law Commission's proposals to control and punish cyber-bullying and other 'digital harms'. This includes:
- Clarification of existing laws such as the Harassment Act to explicitly say that they apply to modern communications technology.
- Establishment of an agency (probably NetSafe) that will provide non-coercive mediation of online issues.
- More encouragement of anti-bullying measures in schools.
- New criminal offences for "using a communications device with the intention to cause harm" and "incitement to suicide".
- Establishment of a new regime with wide ranging censorship powers for controlling online speech, including new tighter standards for what speech is acceptable online.
One significant change is that the paper rejects the establishment of a separate Communications Tribunal (staffed by District Court judges with specialist knowledge in this area) in favour of passing it to the District Court as a whole. This would seem a step backwards in many ways as we question whether the average District Court judge is up to the task of understanding the technology involved.
Read our response to the Law Commission's original proposals: What's Wrong with the Communications (New Media) Bill and can it be fixed?
Many of these problems remain in the current proposal.
From a civil liberties point of view, the most serious concerns are around the idea that online speech should be held to a different and significantly higher standard than offline speech, a position we strongly object to. There is also a concern around why harming someone via online communication is seen as so much worse than other forms - it would make more sense to us to concentrate on the extent of the harm caused, not the means by which it was delivered.
From a purely practical point of view, when we consider the wide-ranging use of anonymity and foreign services on the internet, combined with the speed at which many situations blow up online, we still question how much good these proposals will be able to do.
Our page listing reactions to the initial report.
No Right Turn reports that the proposal is the return of the offence of criminal libel:
Back in the dark ages, when spousal rape was legal and homosexuality was a crime, there was a criminal offence in this country of "criminal libel". Publishing material "designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt and ridicule" wasn't just a matter for defamation lawyers; it was a crime punishable by two years imprisonment. The law was clearly incompatible with the Bill of Rights Act (not to mention with modern ideas about defamation being a tort), and so it was repealed in 1992. Now Judith Collins wants to bring it back - but only on the internet.
Lawyer Steven Price points out some of the hurdles you'll have to get over to actually use the new new censorship regime and then questions the wisdom of handing over decision making around some complex technical and Bill of Rights issues to the next District Court judge off the bench.
Blogger David Farrar generally favours the proposal but questions the communications principles.
InternetNZ points out that the proposal has some worrying flaws.
Do New Zealanders want web-based email services to be subject to take-down orders? Do people understand that such orders, as outlined in the Cabinet paper, could be based on lower legal standards than is the case today – and could be imposed on people without them being part of the Court’s proceedings?
Vikram Kumar worries that the proposals will cause collateral damage to the NZ internet.
NZ Herald editorial in favour.