[Updated to the reflect the latest version of the Bill as at 23rd July 2015.]
As part of our ongoing look at elements of the Harmful Digital Communications Bill (general critique and safe harbours), we now turn to the new offence of causing harm by posting digital communication (section 19). This is a criminal offence and is not related to the rest of the bill with its 10 principles, Approved Agency and quick-fire District Court remedies. It’s quite simple:
(1) A person commits an offence if:
- the person posts a digital communication with the intention that it cause harm to a victim; and
- posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
- posting the communication causes harm to the victim.
“harm” is defined in the interpretation section as “serious emotional distress”.
Unfortunately this new offence is actually very wide and may well capture many communications that are of immense value to society – or at least shouldn’t be made illegal.
Let’s consider the case where someone takes a photo of a politician receiving a bribe and, shocked at their corruption, posts that photo to the internet in an attempt get the politician to lose their position. This communication would:
- be posted with the intention of harming the victim (the prospect of facing criminal charges or being obliged to resign could be assumed to cause the victim distress).
- would cause harm to any reasonable person in the position of the victim (any reasonable person would not like having evidence of their criminal corruption exposed to the world).
- could be easily proved to have caused harm (serious emotional distress) to the victim.
The penalty? Up to 6 months in jail or a fine not exceeding $50,000. (Or up to $200,000 for a body corporate.)
In section 19(2) the judge gets some guidelines about how to assess whether the communication causes harm, but nowhere is there the idea that some communications that cause harm might actually have some societal value or would otherwise come under freedom of expression. There are no available defences such as that the communication may be in the public interest, counts as fair comment, or exposes criminal wrongdoing. All we have is the weak language in section 6(2) that the courts must act consistently with the Bill of Rights Act – which doesn’t mean much when the explicit wording of the Bill is against the principles of that Act.
This is obviously a terrible law and will have a detrimental effect on freedom of expression and public discourse in New Zealand. How will our journalists and citizen journalists be able to expose wrong doing when broadcasting it on electronic media such as the internet, radio or TV is a criminal act if it hurts the wrong-doer’s feelings?
This law wouldn’t be acceptable if it applied to speech in a newspaper, it’s not acceptable online.
It’s been suggested that this doesn’t matter, because in a case where an allegation is true and reveals criminal or despicable conduct, the judge will interpret the legislation in line with BORA and reject the case.
But this creates an entirely subjective question: is the “harmed” person’s conduct sufficiently culpable as to remove their protection by the HDC bill? Will conduct that is criminal in some degree, squicky, antisocial or merely hypocritical be protected from disclosure? It depends on the view of the judge at the time.
This law overrides the BORA, not the other way around. The only way the judge can apply a BORA test is when the law is unclear… and this part of the law looks very clear to me.
The test is “harm to the victim” and nothing else.
In other words….if you exposed WhaleOil as spouting a load of rubbish…and he cried…do you go to jail, perhaps to join WhaleOil there due to things he said previously being found to be criminal?