The safe harbour provisions in the Harmful Digital Communications Bill are a serious threat to online freedom of speech in New Zealand.

How it works

Anyone can complain to an online content host (someone who has control over a website) that some material submitted by an external user on their site is unlawful, harmful or otherwise objectionable. The online content host must then make a choice:

1. Remove the content and thereby qualify for immunity from civil or criminal action.
2. Leave the content up and be exposed to civil or criminal liability.

The content host has to make its own determination about whether a piece of given content is unlawful (which may be very difficult when it comes to subjective issues such as defamation and impossible to determine when it concerns legal suppression), harmful or “otherwise objectionable”.

Furthermore, there is:

• No oversight of the process from any judicial or other agency.
• No requirement for the content host to tell the person who originally posted the content that it has been deleted.
• No provision for any appeal by the content host or the person who originally posted the material.
• No penalty for people making false or unreasonable claims.

We can safely assume that most content hosts will tend to play it safe, especially if they’re large corporates with risk-averse legal teams, and will take down material when requested. They have nothing to gain and plenty to lose by leaving complained about material online.

Serious ramifications for freedom of speech

Don’t like what someone has said about you online? Send in a complaint and wait for it to be taken down.

This applies to comments on blogs, forums on auction sites, user-supplied content on news media sites, etc, etc. These are exactly the places where a lot of important speech occurs including discussions about politics and the issues of the day. The debates can often be heated, and some sites are well known for encouraging intemperate speech, but these discussions are becoming and increasingly important part of our national discourse.

This law will make it too easy for someone to stop arguing and start making complaints, thereby suppressing the freedom of expression of those they disagree with.

The jurisdiction problem

Of course, this will only apply to websites that are controlled by people who have a legal presence in New Zealand. Overseas websites will continue to maintain their own rules and ignore New Zealand law and standards of online behaviour.

Conclusion

As currently written, these safe harbour provisions are just a bad idea. They’re too open to abuse and we believe they’re more likely to be used to suppress acceptable speech than to eliminate harmful or “otherwise objectionable” speech. As a very minimum, the complaint should have to be approved by the Approved Agency referred to in the other parts of the Bill.

That said, the whole idea of removing “otherwise objectionable” speech is also quite worrying. The Harmful Digital Communications Bill already has an expansive set of rules about what sort of harmful speech shouldn’t be allowed online and this “otherwise objectionable” seems to extend it even further. One of the principles we stand up for here is that civil liberties such as freedom of expression are as important online as they are offline, and this law goes far beyond anything in the offline world.

We hope to have more comment and analysis on other aspects of the Harmful Digital Communications Bill soon.