Curran Clare: Harmful Digital Communications Bill — Referral to Justice and Electoral Committee Second ReadingText is incorporated into the Bound VolumeCurran Clare: Harmful Digital Communications Bill — Referral to Justice and Electoral Committee Second Reading[Sitting date: 24 March 2015. Volume:704;Page:2540. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): First of all can I offer my congratulations to Brendon McCullum a boy from south Dunedin who got 59 runs off 26 balls tonight. Secondly can I say to the Minister that she needs a bit of a fact check herself: there is no doubt that cyber-bullying is a growing scourge and the worst thing about it is that young New Zealanders are being affected. In fact the term “cyber-bullying” is now in our lexicon. There is also no doubt that Labour supports and has supported and continues to support the intent of this bill which is to mitigate the harm caused to individuals by digital communications and to provide those victims with a quick and effective means of redress. The big problem is that this bill does not do that. It is so full of holes and problems and that is why Labour has expressed concerns about it.We supported this bill to the select committee on the basis of supporting the intent but at the timewe expressed reservations at some of the measures in the bill. After going through the select committee process Labour abstained from voting in support of the bill because of our deep concerns. I am going to run through a list of what the deep concerns are about. First of all the unnecessarily hurried passage of this bill through to select committee and through that select committee process. I note that since then it has been sitting on the Order Paper for months and months and it certainly is not being pushed promptly through the House as the Minister said. Instead in that select committee process time and time again we on the Opposition side were blocked from seeking further clarification from getting further advice and from trying to clarify some of the more difficult parts of the bill.There was a lack of wider views sought. There is a really important set of voices that is missing in the discussion on this bill and those voices are the voices of young people—and they are the young people who will be most affected by this bill. Their voices are missing. In fact a late submission provided to the select committee was not accepted by the select committee and I am going to read a little bit from that submission by Sticks’n’Stones which is a student-led project promoting positive behaviour online and standing up to cyber-bullying. Based in Central Otago it is made up of students from secondary schools around that region. They said: “We are Sticks’n’Stones a student-led digital citizenship project. We’re a group of teenagers with firsthand experience that words can hurt and be hard to escape.” They said: “Penalties like fines or even jail seem more like a scare tactic rather than a solution. They may stop people from cyber-bullying out of fear in the short term but they are highly unlikely to change the mind-set of bullies.”That is one of the major points about this bill. It sort of started at the wrong end. It is punitive. It contains a new criminal provision that will criminalise young people but there has been no education campaign there has been no build-up and there have been no resources put in to actually get to the target audience to try to change behaviours and ensure there is widespread education in schools and amongst parents. Instead the private sector has been left to do that in the absence of Government input. That is one of the major flaws of this bill.Secondly there is the impact of new criminal provisions on young people. Clause 19 of the bill creates a new criminal provision called “Causing harm by posting digital communication”. Clause 19(3) states: “A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 2 years.” As the Minister confirmed before this could bring 14-year-olds into court before a judge with the potential for a criminal conviction and a term of imprisonment. Yes that might be rare but that potential exists and that potential exists for a cyber-crime—not a physical crime but a cyber-crime. So if you go and write a nasty note and stick it in the locker of one of your friends then that is not a criminal act but if you write the nasty note online then that could be a criminal act—although they are the same words. One of the big issues with this bill is that it is not aligning the physical environment with the cyber environment; it is creating a completely new regime around the cyber environment without the forethought and the deep thinking that needs to go into the ramifications and the unintended consequences.There is a lack of detail about the role of the approved agency a lack of detail about funding for that approved agency that would create the civil enforcement regime and as I said a lack of commitment to funding a widespread education campaign. There are no funds allocated at all. In fact I hear that there will be no funds that this law is going to stand on its own and there will be no corresponding education campaign.This law does create international precedent. Despite what the Minister says it does create international precedent. In Europe there has been a definitive trend towards relying on existing laws and upgrading the existing laws to address harms caused by the use of internet technologies. In the UK the House of Lords select committee on communications reviewed how the law deals with social media abuses such as cyber-bullying revenge pornography and trolling and concluded that relevant legislation such as the Protection from Harassment Act and the Malicious Communications Act is adequate to deal with such phenomena. Well why are we not relying on the existing laws that we have and upgrading them—which to be honest this legislation does do? Why are we not saying: “OK that is the route we should go down because that means it is in the physical environment and in the cyber environment.”? But instead what has happened is that the previous Minister of Justice Judith Collins reacted to the Roast Busters issue and said: “We must do something. So let’s create a new cyber-crime. Let’s have that.” Well the unintended consequences of that are being warned about and may be very extensive and I am actually going to reel off a few of those unintended consequences because of the impact that they could have.The bill could result in ridiculously false allegations. The bill fails to adequately acknowledge false allegations that no reasonable person would believe. Political satire could come within the realm of this legislation. We do not know—the definition of “harm” is so broad and is so untested that it could actually bring in political satire. It could bring in political criticism. So if for instance someone writes text messages or puts up tweets or Facebook statuses criticising John Key might they possibly end up in court? Well that might sound ridiculous but actually Judith Collins herself wrote some unpleasant tweets about a journalist late last year that actually could have been demonstrated to fall within the realm of the cyber-criminal provisions contained in this bill. It could bring in robust debate and protest whistleblowing and social and political campaigns as well as increasing the criminalisation of young people.Finally the workability of the “safe harbour” provision is significantly of concern. The Minister herself has acknowledged that and I am pleased to hear that she is going to be doing some work on that. We understand that the Minister will present amendments at the Committee stage but we do not know what those amendments will be. As the bill stands we cannot support it and we will not be supporting it at the second reading. However I am signalling today that if the bill passes its second reading we will work with the Government in good faith to amend the bill in the Committee stage. We contend that the bill requires substantial amendments not just technical amendments but if those proposed by the Government do not address our fundamental concerns then we cannot support it through the remainder of its passage.