Ardern Jacinda: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeArdern Jacinda: Harmful Digital Communications Bill — Third Reading[Sitting date: 30 June 2015. Volume:706;Page:4851. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): It is my pleasure to have an opportunity to use this third reading speech on behalf of Labour to rearticulate the difficult position that we as an Opposition party felt we were in when debating the Harmful Digital Communications Bill. We sometimes in this House talk about being wedged on issues and what does that mean? Well I think this bill is a reasonable example of that.We have a situation where no one denies that cyber-bullying is very very harmful. You know we have hadin the past the comparison as to the kind of bullying that happened perhaps in our childhood when things like notes rumours slanderous gossip were the kinds of things that were used as tools to hurt young people. Today what we have online is the equivalent of the old nasty note being passed in class now being broadcast for all to see and we have to acknowledge that that has much wider ramifications that do need to be dealt with.So yes there is total agreement that something needs to be done. The issue is what that thing is. The problem we have in this House is that when the Government puts up a proposal and says it is the answer to the problem we all agree on if you then as an Opposition party say: “We’re not really sure that’s true.” you end up being positioned as if you are not genuinely interested in dealing with the issue. That was part of the issue that Labour has faced with this bill. Yes there are elements that we think we were worthy of discussion and debate from this House—there are elements that we could see some merit in—but there are other elements that were deeply worrying for us. So what do you do?Well we want to use this opportunity to highlight some of the issues that we do have and continue to have. On balance our decision has been to vote in favour of the bill but as a party we hope that this House will agree to revisit this legislation in 1 year’s time. If there has been a manifestation of any of the issues that have been raised if the bill is not achieving what it set out to achieve or if it is doing any of the harm we contest may happen we would seek that this House be reasonable enough to come back and look at it again. That is our hope.So let us go through some of the issues that we do think need to be revisited. The first concern we had is that the bill puts forward a new regime over and above some of our existing laws. We have harassment laws already. It was our contention that they could have been used to deal with some of these issues. But the bill puts in a new penalty regime that could potentially include imprisonment or fines. For some people that may be an appropriate response. We have seen some extreme behaviour along that line which needs to be dealt with. But what about for children? When children are involved is it the most appropriate response to criminalise them? You know we are talking about kids as young as 14 here. It was our contention that that was not right. We wanted the bill to change so that we were considering only those considered adults in the law which is 17 and above. The Government did not agree with that amendment so that is one of the things we are deeply concerned about.What would we have done as an alternative? We do think there are models within schools around restorative justice that many schools use in place of expulsion and suspension regimes that maybe would have been a thoughtful way to engage with this issue. We know for instance that the Post Primary Teachers Association in its latest magazine is talking about forces within schools aligning against bullying through movements like Pink Shirt Day which is becoming much more widespread. Talking to the education sector about what we could do when children are involved would have been at least a good first step. So that is one of our first concerns.Our second concern was whether or not the definition of “harm” in the bill was too broad. The bill basically set out that harm was “serious emotional distress” but that is a very subjective measure so the bill allows the approved agency that is meant to deal with the bulk of cases to determine for itself what “harm” might be. When you are dealing with something as serious as balancing freedom of speech with the issue of online bullying and cyber-based harm our contention is that Parliament needs to play a greater role in determining where that line in the sand is. Freedom of speech must be jealously guarded by this House. Our concern is that this has been left wide open and we still have concerns about the way that that might be interpreted and about whether the approved agency will have the resources and be equipped to deal with that significant issue. That is definitely one that Parliament must remain engaged in because any threat to freedom of speech that goes beyond the tests that we put in place to make sure that freedom of speech does not become harm against others and harm against young people is the balance that we must continue to ensure we maintain.As I say we are also concerned that the proposed civil enforcement regime displaced the longstanding balance we already had in New Zealand law and replaced it with untested standards. So that was another concern.Of course there were opportunities for us to look at what overseas jurisdictions were doing. We are not the only Parliament tackling this issue. Australia has already tried and so has the UK. In the UK we have seen horrific situations of cyber-bullying where young people have taken their own lives. Its response has not been to legislate but to use alternative methods. We really wanted to see those explored in more detail.It was also our view that some of the provisions around having a safe harbour online were flawed. At the moment entities like Facebook and Google have their own policies—if something harmful is posted online you have the ability to request that it be taken down. Some of those entities operate a function whereby they take down first and check later. So they act immediately in order to remove the potential harmful communication and then decide whether or not that was the right course of action. So that can happen very very quickly.This bill however gives the ability to entities to remove potentially harmful digital communications no later than 48 hours. So actually we are broadening the window to make it a longer period of time than what might already be the practice of some of these entities. The harm of that is we know that in a viral digital age 48 hours is a very long time—it is a very long time—so we have the potential here that this legislation actually weakens what was happening as the status quo. We are very pleased though that the Minister of Justice did make some changes via a Supplementary Order Paper during the Committee stage to provide an opt-out from these provisions for online content hosts so that they can use their own terms and conditions. We are grateful for that. That does provide some leeway around that but it was an issue that we have raised consistently and we need to monitor whether those time frames are going to be effective.We also debated—I understand it was debated at the select committee—the issue around whether there needed to be exemptions for the media. I accept that in the digital age there is a very broad range of views as to what media is and much debate as to whether or not bloggers should be included in that official turn of phrase but what I am sure we can all agree on is that this bill—as much as there is satire out there around MPs reading out mean tweets this bill is not about protecting members of Parliament. That is not what this bill is about. You are not going to see MPs using the law to stop people criticising them. Of course not—that would be a blatant abuse of the freedom of speech. Nor is it about stopping trolls that affect members of Parliament. That is not what the bill is about. But nor is it about stopping satire—nor should it be. That again would also be a blatant breach of freedom of speech.So perhaps it would have been useful to embed in this law—to be clear—a public-interest defence around the media so at least it existed in law and at least we sent the message to the legal fraternity that it is not our intention to protect ourselves with this legislation but rather to prevent harm to some of the most vulnerable. Let the record instead state—let Hansard instead state—that that is not what this Parliament’s intention is. Rather it is a very different group that we intend to protect.On balance as I say we do want to prevent harm. We have massive reservations about whether this is the right way to do it but on balance we have agreed to see where it takes us. But let us at least as a Parliament be wise enough to accept that this is new territory and that it would be wise of us to keep a very watchful eye on the way that this legislation works.