We made an oral submission to the Justice and Electoral Select Committee about the Harmful Digital Communications Bill as a follow-up to our written submission.

This oral submission concentrated on two misconceptions that we see as underpinning the bill: that speech should never harm anyone, and that different rules should apply to speech online and offline.

We then discussed problems with the effectiveness of the bill – and how it might not be that useful for victims of digital harms but might be quite handy for people who want to suppress the views of others.

Hi, we’re from Tech Liberty, a group dedicated to defending civil liberties in the digital age.

This bill is of key interest to Tech Liberty because, ultimately, it’s a censorship law. It’s a law that sets new limits on what people can and cannot say and provides new mechanisms to enforce those limits. And, as with any censorship law, it comes up hard against the right to freedom of expression guaranteed in the NZ Bill of Rights Act.

As a civil liberties group we see freedom of expression as one of our most important rights, underpinning many of our other rights and being one of the cornerstones of our democracy.

We accept the words in the Bill of Rights that these rights may be limited by law when it can be demonstrably justified in a free and democratic society, but we believe that this bill can not be justified in these terms. The impact on freedom of expression is significant while the effectiveness of the bill is in doubt.

Even worse, the bill is based on two fundamental misunderstandings about freedom of expression, firstly that it supposes that speech should never cause harm, and secondly that we should have different standards for speech online.

I want to expand on these two misunderstandings by discussing sections 19 and 20 of the bill before talking about whether the bill will be effective or not.

 

Section 19 – Causing harm by posting a digital communication

Let’s start by looking at a hypothetical situation. Someone breaks into my house and assaults me and steals my possessions. I, however, have video footage of them doing so that clearly shows their face. I am understandably very angry about what has happened and I post the footage online saying that I hope we can catch and punish this scumbag.

This does not seem unreasonable to me, but according to section 19 of this bill I have “caused harm by posting a digital communication” and could be liable for a fine of up to $2000 and a prison term of up to three months. This is because I would have (in a paraphrase of section 19):

1. posted a digital communication with the intention that it cause harm to the victim, and
2. an ordinary reasonable person in their position would be harmed, and
3. the communication would have caused harm to them (I think we can assume that most people would feel serious emotional distress from the realisation that they’re about to be arrested and go to jail).

Even worse, there are no mitigating factors for this offence. The complaints procedure in this bill gives the judge significant discretion but, apart from the judge being able to determine whether harm occurred or not, this offence does not.

This offence criminalises all speech that causes harm, regardless of whether it has any other value – but only if it’s done digitally.

 

Freedom of speech and harm

There seems to be an assumption right throughout this bill that all harm done through speech is a bad thing and should be stopped where possible. We disagree with this.

Freedom of expression does not guarantee that speech will never cause harm. Indeed, one of the reasons freedom of expression is so important is because of the power of speech to reveal what was hidden, to influence and to change what people think. This power means that some people will be harmed by speech that has significant value to society.

And it is exactly because speech is so powerful that we must be particularly careful to preserve our ability to use it without unreasonable restraint.

 

Section 20 – Liability of online content host for content posted by user

The other disturbing idea underpinning this bill is that communications performed electronically are less worthy of protection than those in other media.

We can see this idea come through very strongly in section 20 which provides a safe harbour for online content hosts for communications posted by a user.

Don’t like what someone has said about you online? Send in a complaint and wait for it to be taken down. Or get hundreds of your friends to all send in complaints and swamp the online content host.

The online content host only escapes liability if they take it down immediately. Any large company with a legal department could be expected to take it down – large companies aren’t known for being particularly brave. Any small blog would tend to do the same – they don’t have a legal department and they can’t even afford to defend themselves in court, let alone lose.

The safe harbour as written will have a serious chilling effect on freedom of speech.

We agree that online content hosts do need legal protection, but the proposal in this bill is repeating the same mistakes that other jurisdictions have made by providing a safe harbour that is open to abuse by people with bad intentions (our written submission has more detail about this).

Electronic only

What we see in this section, and in the bill as a whole, is a view that speech conveyed electronically isn’t worth the same sort of protections as other speech.

• You can harm someone by writing a poison pen letter and get off scot free – but scan the letter and email it and suddenly you’re up for a fine or even jail time.
• You can easily apply to get someone else’s speech taken offline through the creation of a new takedown scheme – but nothing similar exists for print media.
• The complaints regime even lists a whole set of new rules that will be used to govern online speech that don’t apply offline.

Some have argued that this is necessary, that the effect of online speech is stronger. There are instances where online speech has spread and been copied and seems to be everywhere – but there are many more cases where it vanishes without impact when someone deletes an unwanted email.

If the government is serious about wanting to reduce harm from communications, why concentrate on electronic communications only?

More to the point, the internet is why we now hear about these stories. In the past we wouldn’t have known about many of these stories – they would have been private miseries followed up by private tragedies. The internet also enables people to fight back – to put their side of the story across. We fear that this bill will hamper the fight back as much as it hampers the original harms.

Effectiveness

I now want to turn to the issue of effectiveness. Obviously there are major problems with the international nature of the internet and our lack of jurisdiction overseas. There are also obvious problems with the speed, with harm often being done in hours, well out of the reaction time of even the most draconian possible measures.

But even taking these elements out, will the bill actually achieve anything?

• The internet trolls, the people who put effort into upsetting others just for fun, are going to quickly move to using anonymous overseas services. The bill won’t stop them.
• The mass pile-ons, where a post or video goes viral and is shared around the world, won’t be stopped by this bill.
• The victims mentioned in the Law Commission report who never told anyone what was being done to them… well, the bill can’t force them to seek help.
• School bullying or infighting in a social group or workplace won’t be solved by this bill either. School bullying is by known people to other known people and is going to have to be solved at the school level, whether it’s electronic or not. We do see the agency as being able to help with this, however.

However, there are some people who will find it useful to stifle opposing views:

• Kyle Chapman of the National Front already makes complaints to the Press Council when newspapers publish things about him that he doesn’t like, I’d expect him to take advantage of this new law.
• I’ve talked to David Farrar about the vicious infighting that occurs between some of the commenters on Kiwiblog, and we can expect that they will leap on these new measures as another stick to beat each other with.
• The recent public outcry against the Roastbusters gang would have triggered both the complaints and the criminal offense sections of this bill, leading to the suppression of these views.
• And, in both local and national politics, we can expect the more rabid supporters on all sides to try and use these laws to suppress “the enemy”.

Conclusion

In conclusion, 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 do support the establishment of an agency to assist those harmed by harmful communications and believe that this will go a long way to both helping victims and resolving the types of situations that can be resolved. This agency might need access to a few of the powers that the court will have to uncover the identity of users of New Zealand services.

However we believe that the bulk of this bill, including the principles, the court procedures and the new offences, should be put aside until such time as the agency has been working for a while and has collected more information about the nature of harmful communications in New Zealand.

There also needs to be a more considered and careful look at how to provide legal protection for publishers of user-contributed online content that also protects the rights of New Zealanders to freedom of expression.

There are more concrete suggestions and improvements in our written submission.

Thank you for your time.