Cross-Examination: The Unintended Consequences of the Harmful Digital Communications Act

Daniel Gambitsis, content contributor

On 30 June the Harmful Digital Communications Act (HDC) passed its third and final reading. The highly controversial Act seeks to ‘deter, prevent, and mitigate’ online bullying and harassment and provide victims with a means of redress.[1] There is indubitably a crisis of online bullying and harassment in New Zealand, the online dimension to a widespread phenomenon of a culture of bullying.[2] In New Zealand, 1 in 3 children have been bullied online.[3] Yet this phenomenon is not limited to children, as shown by the furore created by the Roast Busters Case and the suicide of New Zealand born model and TV personality Charlotte Dawson last year, due at least in part to persistent harassment by online bullying.[4] The Act’s reception has been far from unanimous, however, owing to concerns that it may stifle free speech. The crucial question is whether the Act is a justifiable limit of the right to freedom of expression in New Zealand, as provided for in the New Zealand Bill of Rights Act 1990 which states that there may be only ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.[5]

The HDC Act is intended to cover a wide range of digital communications, including the disclosure of sensitive personal facts; threatening, offensive or obscure materials; false allegations; incitement to self-harm or suicide and discrimination for colour, race, ethnicity, religion, gender, sexual orientation or disability.[6]  It mandates the establishment of an “approved agency” to advocate on complainants’ behalf.[7] In addition, it must provide ‘education and advice’ about online safety and conduct, which will be beneficial in equipping youth with the  tools to deal with the digital realm.[8] The Law Commission has recommended NetSafe be this agency. NetSafe is ‘an independent non-profit organisation that promotes confident, safe and responsible use of online technologies’, which is sponsored by the Ministry of Education.[9] The concept of an approved agency in particular should be helpful by acting as a third party which can mediate and remove unnecessary complaints. Should the agency decide not to continue investigating a complaint, the complainant has the right to apply to a District Court for an order under the Act.[10] The Agency may opt to not investigate or discontinue investigating complaints which are trivial, unlikely to cause harm, or which do not fall under the Act’s “communications Principles”.[11]

The Act broadly states that any individual, or their parent, guardian or school leader may apply to for an Order to the District Court if her or she ‘has’ or ‘will suffer’ harm from digital communications.[12] This is thus a large window for complaints which clearly intends to cover children and adults.

The District Court may order a wide range of orders, including that the material be removed, that the defendant refrain from such conduct, that the material be corrected or an apology published.[13] In making an order a court must consider factors such as the communication’s content, the level of harm caused or ‘likely to be caused’, its purpose, its audience, the target’s age and vulnerability and the ‘public interest’.[14] The Act provides that online content hosts may opt in to a ‘safe-harbour provision’ which shields them from liability provided that they take down ‘offending’ content within 48 hours of receiving a complaint.[15] This section will both protect them from liability but, arguably, impinge freedom of speech. [16] The Act consequently amends the Human Rights and Privacy Acts 1993.

Although the Act specifically requires the ‘Approved Agency’ and the District Court to act consistently with the ‘rights and freedoms contained in the New Zealand Bill of Rights Act 1990’, one of the central concerns is that the Act will impinge free speech in New Zealand.[17] Freedom of speech is covered by section 14 of the New Zealand Bill of Rights Act under ‘Freedom of Expression’, which states:

“Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.”[18]

This section mirrors article 19 of the ICCPR. Freedom of expression entails free speech, free media, the sanctity of one’s own opinion, and the transmission and receipt of ideas and information.[19] The Human Rights Act 1993 already prohibits hate speech under sections 61 and 131, which have rarely been used.[20]

Critics contend that while the Act is well intentioned it is far too broad, ‘poorly drafted’, and employs subjective definitions.[21]  The Act is worded very broadly to include ‘any text message, writing, photography, picture, recording, or other matter that is communicated electronically’ under the definition of ‘digital communication’. The penalty is up to two years imprisonment or a fine of up to fifty-thousand dollars, which is by no means a small penalty. Not only is the terminology broad, but the terms used are subjective. Terms such as ‘harm’ and ‘offence’ are particularly subjective. [22]  Harm is defined as ‘serious emotional distress’, which any politician could claim in order to have revelatory content removed. But this law is not limited in scope to people in power. It could theoretically target children who have posted offensive content, for example to schoolmates, regardless of whether there has been or will be harm done. The fact that the material may be considered an offence for the fact that it ‘will’ cause harm seems to give an unnecessarily expansive ambit to the Act. Furthermore, internet providers may simply remove content rather than go through the complex process of determining a complaint’s validity.[23]

In the Herald, Bryce Edwards hypothesised that the Act could legally ban ‘serious TV journalism’, such as Paddy Gower’s exposes on TV3, or even Nicky Hager’s work, if he had published solely online.[24] Thus the Act threatens to criminalise people for exposing politicians, which is beneficial for society in the aim of holding our elected officials accountable. Similarly, sensitive subjects such as religion, and parody and satire could run afoul of the new law.[25]

In fact, the law may actually facilitate bullying, or at least bullying those with different opinions.[26] Tech blogger Cory Doctorow compares the Act’s ‘takedown’ process to the DMCA’s takedown process, explaining that ‘trolls who mass-dox or denial-of-service attack a victim could make all of her online presence disappear with impunity and face no penalties at all for abusing the procedure’.[27] It is questionable whether sensitive victims would really want to disclose their home address and other details. Moreover, coordinated groups could target unpopular but legitimate material and should the poster miss the 48-hour window to respond to the takedown, they would lack a legal recourse to justice.

Crucially the law makes some conduct an offence if done online, which wouldn’t otherwise be an offence if done offline. Just last year the United Kingdom House of Lords stated:

“What is not an offence offline should not be an offence online”.

Indeed apart from making an arbitrary distinction between the online and offline worlds, the law fails to address real-world problems. For example, the authorities could in preference make use of and modernise existing laws, such as updating the Crimes Act’s provisions against intimate covert filming to include ‘revenge porn’, or extending the Harassment Act to include “digital communications”.[28] As demonstrated by the Roast Busters case, the new Act will not solve poor policing or poor use of existing laws.[29] Minister of Justice Amy Adams focussed on criticising the behaviour of the young men online more than the real-world acts themselves.[30] The appropriate charges- s 134 of the Crimes Act and alternative methods such as intervention by Child, Youth and Family- were simply not employed.[31]

The Harmful Digital Communications Act is broadly worded and subjective and as such poses a threat to online free speech in New Zealand. The Act was proposed with the inarguably noble intention of responding to recurring examples of the abuse of digital communications. However its ambit may range from prohibiting genuinely harmful and unnecessary material to stifling public interest stories and unpopular opinions, especially concerning divisive issues. It exposes complainants and metes out arguably excessive penalties, making a disquieting distinction between online and offline behaviour, where such limits would be far more fiercely contested. The Act cannot address offline problems. Overall, the Act does seem too broad to be a reasonable limit to the right to freedom of speech. Nevertheless, given the non-use of existing legislation in this very area, it remains to be seen whether these fears will be realised.

[1] Harmful Digital Communications Act 2015, s 3(a).

[2] “HRC to monitor Harmful Digital Communications Act” (I July 2015) HRC < https://www.hrc.co.nz/news/hrc-monitor-harmful-digital-communications-act/>.

[3] James Ihaka “Online bullying affects 1 in 3 children” (10 July 2008) NZ Herald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10520847>.

[4] “Charlotte Dawson’s death puts cyberbullying back in the spotlight” (24 February 2014) ABC News <http://www.abc.net.au/news/2014-02-23/charlotte-dawson-death-puts-focus-on-cyber-bullying/5277904>.

[5] New Zealand Bill of Rights Act 1990, s 5.

[6] Harmful Digital Communications Act 2015, above at 1, s 6.

[7] Chris Keall “Harmful Digital Communications Bill passes: its key elements” (1 July 2015) NBR <http://www.nbr.co.nz/article/harmful-digital-communications-bill-passes-its-key-elements-ck-174934>.

[8] Harmful Digital Communications Act 2015, above at 1, s 8(e).

[9] “About NetSafe” NetSafe http://www.netsafe.org.nz/about-netsafe/.

[10] Harmful Digital Communications Act 2015, above at 1, s 8(5).

[11] Harmful Digital Communications Act 2015, above at 1, s 8(3).

[12] Harmful Digital Communications Act 2015, above at 1, s 11.

[13] Harmful Digital Communications Act 2015, above n 1.

[14] Harmful Digital Communications Act 2015, above n 1.

[15] “Harmful Digital Communications Bill passes: its key elements” above n 4.

[16] “Harmful Digital Communications Bill passes: its key elements” above n 4.

[17] Harmful Digital Communications Act 2015,s 6(2)(b).

[18] New Zealand Bill of Rights Act 1990, s 14.

[19] “Freedom of Opinion and Expression” (2010) HRC https://www.hrc.co.nz/files/6914/2388/0492/HRNZ_10_Freedom_of_opinion_and_expression.pdf at 123.

[20] “Freedom of Opinion and Expression”, above n 19, at 132.

[21] Gareth Hughes “New law poorly-drafted, vague, and could criminalise free speech” (6 July 2015) Stuff < http://www.stuff.co.nz/the-press/opinion/69955436/new-law-poorlydrafted-vague-and-could-criminalise-free-speech>.

[22] “New law poorly-drafted, vague, and could criminalise free speech”, above n 22.

[23] “Political roundup: Dangers for democracy in today’s cyber bullying law”, above n 18.

[24] Bryce Edwards “Political roundup: Dangers for democracy in today’s cyber bullying law” (30 June 2015) NZHerald http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11473451>.

[25] “New law poorly-drafted, vague, and could criminalise free speech”, above n 17.

[26] “New law poorly-drafted, vague, and could criminalise free speech”, above n 17.

[27] Cory Doctorow “NZ’s anti-troll law: gift to trolls, bad for free speech” (8 July 2015) BOING BOING <http://boingboing.net/2015/07/08/nzs-anti-troll-law-gift-to.html>.

[28] Nicholas Jones “Controversial cyberbullying law passes” (30 June 2015) NZHerald <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11473545>.

[29] Chris Barton “A digital bill that’s far too broad” (7 April 2015) NZHerald <http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11428758>.

[30] “A digital bill that’s far too broad”, above n 24.

[31] “A digital bill that’s far too broad”, above n 24.

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