Clendon David: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeClendon David: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4655. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green):I am pleased to take a call on this—to the extent that my voice will allow me to. This bill has caused nervousness and some concern from day one effectively. I think the Justice and Electoral Committee did actually do quite a good job in remedying some of the concerns and the issues. Clearly they still remain. It is true that to some extent the bill does break new ground but it is ground that I think we need to break because there is a problem. This is a proposed solution. We can be almost confident it will be imperfect over time but I do think it is a sufficiently robust piece of legislation to advance through this process and ultimately to become an Act.I just recall that one of the first major conversations at the select committee was that the bill as it was first drafted was very much about bottom-of-the-cliff stuff. It appeared to focus very much on creating an agency creating penalties and indeed creating criminal offences around cyber-bullying and online content and the like. So one of the first conversations—indeed one of the first substantive amendments we made—was to the purpose of the bill where the words “deter” “prevent” “mitigate harm” were inserted. I do not now recall the original wording but clearly it is a major function of the bill to ensure that there is an educative process that is carried through. Part—in fact I would say a substantive part—of the success or otherwise of the legislation as it emerges will be a willingness to invest significant resources into the approved agency and indeed to support other organisations that might want to contribute to that educative function.We do want people to be aware first that the requirements of the bill are such that one is skating on very thin ice if people seek to go online and cause harm to others. But ultimately prevention is the best cure as we know—excuse the obvious and much-hackneyed phrase—and I think the insertion into the bill of a clear steer a direction that there should be educative preventive mechanisms supports that. I do think it will be a responsibility of this Government and of successive Governments to invest sufficiently into resourcing the capacity of the various agencies with an interest to make sure that does actually happen.There has been some obvious concern about clause 19—indeed a proposition that we should delete that. I just reference Supplementary Order Paper 93. We can agree with half of that actually—the second part of that Supplementary Order Paper. I think there is something to be said for that. A couple in a sort of rush of blood to the head or whatever else might decide to record some of their quiet moments together. When the relationship goes pear-shaped one or the other of them might choose to seek to embarrass that person. I think that part of the Supplementary Order Paper is certainly valid and that is something we could support. But the deletion of clause 19 to me would almost gut the bill. It would eliminate a core function of it. Mr Seymour is nodding his head. It is a shame we did not have this conversation at the select committee because I do not recall any proposition there that clause 19 should be omitted. For that reason we cannot support Mr Seymour’s Supplementary Order Paper. If he were to bring another one that had just that second part we could probably see our way clear to support that.I think it is important and the point has been made of course that harm is proven only when you prove intent that it would cause harm to this ordinary reasonable person and that it has caused harm. By default a lot of language in legislation is subjective language. There is really no way to get around that. My former area of expertise the Resource Management Act talked about intrinsic value for example which was extremely interesting. It talked about outstanding features of landscape—entirely subjective commentary—and over time a body of case law has emerged to put some substance some flesh around that. So I do not think that we need to be too overly concerned about the fact that there are obviously subjective elements in this legislation. The alternative I think is to endeavour to nail things down so tightly to be so specific that really the exercise would become very fraught.I take Mr Parker’s point about “the court may take into account” as set out in clause 19(2). If a situation arises where somebody is facing charges I would be very surprised if these issues that may be considered were overlooked or if a court chose not to take cognisance particularly of the particular point he made of whether a statement is true or false. The fact that a statement is true does not prevent it from being harmful or malicious but clearly a false statement would be much more obviously so. The “age and characteristics of the victim:”—we have heard a number of examples and there was a proposition put on one of the current events television programmes at the weekend using politicians as an exemplar. In fact we are probably not particularly good examples of potential victims under this legislation. There is the expectation that we put ourselves forward and we are willing to accept a little bit more flak than the average person might. Not to say that we are above average—quite the opposite on occasion—but I do think that the notion of age and characteristics is a key qualifier to all this.The “extremity of the language”—clearly if people go online and threaten to kill to rape to do serious harm to a person there is existing legislation that can deal with that. At the very dare I say it low level of offending the sort of online bullying that might otherwise take place in a schoolyard—yes there are means to deal with that. The Police Association came through with what to me was quite a compelling submission. It highlighted the fact that there is a significant gap in the middle there. It is not high-order offending; it is not the everyday sort of low-level nuisance stuff. But there is a sufficient gap in there according to the Police Association to warrant a new piece of legislation. I think that is what this bill intends to be.We are pleased to see in the Minister’s substantive Supplementary Order Paper 91 that the issue of discretion if you like for content hosters is just for the avoidance of doubt. It is made clear that if a host gets a complaint and chooses to immediately take down that content because it contravenes its terms and conditions or just its own corporate measure of good taste or whatever it might be then it can do that. It would be a very perverse outcome of this bill if it actually delayed people who might otherwise have taken content down immediately. We know very well that the longer content sits online the more potential harm and the more potential damage it can do. As I say that is one change in the substantive Supplementary Order Paper that we do support and it is responding to submissions made both during the course of the select committee deliberations and from some contact from interested parties after the select committee hearing.I think I will leave it there for the moment and simply say that we will continue to support this bill. It is not perfect and we are certainly open to the ideas of trying to make it better. But for the moment we are supporting this legislation.