Parker David: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeParker David: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4653. Text is incorporated into the Bound Volume.]Hon DAVID PARKER (Labour):Can I thank other members of this Committee for their contribution today and I do accept that everyone is trying to do the right thing here. I have two areas that I would like to traverse if the Minister Amy Adams would be so good as to reply to them. The first is are we not at risk here of creating a defence for the intermediaries who currently face legal risk if they publish defamatory content online in respect of someone? Do they currently face a legal risk that this safe harbour provision removes?Let us say some of the people who make money out of the activities that are allied to the online forums that they are publishing—and an example I am told by Clare Curran is TradeMe. TradeMe has an online forum and the reason that it does that is it attracts people to its trading site. It is one of the services that it gives through the TradeMe site and it makes many millions of dollars every year through TradeMe. At the moment if it publishes or allows to be published on its site things that are horribly insulting of people and that may be untrue I think its concern is that it faces legal risk. Well actually that is not a bad incentive for it to keep its site clean and free of this sort of bullying.Are we in danger in terms of this safe harbour we are creating of actually removing the legal risk that encourages those intermediaries to be responsible at the moment? So that is my first question. If that is the case I think we should send this one back to the drawing board because I am not sure we should be letting off all of the people who are making money out of this. The people who sell advertising services or services through these websites are the people who actually have the most ability to control what is on their site. I cannot control it; other members of this Committee cannot control it so I wonder whether we are actually making an in-principle mistake in respect of that matter. That is the first issue that I would like the Minister to address because if that is the case then the safe harbour provision could be making things worse rather than better because it is avoiding legal risk that currently exists.I am not yet convinced that in the Western World we have actually got this quite right. You know we are moving into a new system in the world where the publishers of most content were reputable media that had editorial oversight and some standards from within. If we are moving away from that because of the changed revenue model for the media why should we be enabling people in this new environment to have less risk than the old publishers of content through newspapers did? Those old publishers of content have lost their revenue to these new intermediaries like Facebook Google and TradeMe. Why is it that the people who pick up the revenue from these new sources of advertising and new commercial models do not face some of the old legal risks that used to control content and the way in which these things were previously published through the media?The second point relates to the criminal provisions in clause 19 of the bill. Clause 19 is a lot lot wider than the instance that the Minister gave in respect of the United Kingdom when she said that revenge porn had been criminalised in the United Kingdom. I can understand why that would be the case but this goes a lot further than that. This applies to any digital communication that causes serious emotional harm. It does not apply to just video clips; it could be an insult that someone finds offensive and to them causes them harm. That seems to me to be a very broad criminal provision and I am again not convinced that we should be so quick to criminalise what could infringe free speech.You will have heard from my earlier contribution that I think there should be responsibility on the part of people who publish comments. If they say defamatory things—and the sorts of insulting things that we have heard of are generally defamatory—or if they publish things that are too personal like videos and things that were taken in a personal or private space then those things ought not to be allowed. We need to have certainly civil remedies in respect of that and in some instances at the most serious end of the spectrum as they are doing in the United Kingdom in respect of revenge porn I can understand why you might want to criminalise in respect of that narrow subset of insulting communications. But this goes a lot further.Clause 19(1)—the drafting of it—says that “A person commits an offence if—(a) the person posts a digital communication”—which can include an email so it could be just an email post on a website—“with the intention that it cause harm to a victim;”. Well most insulting things I think generally are intended to cause harm. “Harm” is defined as being serious emotional harm but you know that is pretty subjective.I would have thought that at the moment some of the things that are said in respect of politicians would be seen by politicians as causing them serious emotional harm. If there have been allegations made of corruption or inappropriate dealings or conflicts of interest that Ministers might have by putting their personal interests in conflict with their ministerial duties posting that communication would cause harm to an ordinary person in the position of the victim and the posting does cause harm. So you could have something that is well-intentioned on the part of someone who thought that they had uncovered something that is a terribly corrupt practice on the part of a politician for example. You could post that and you would think that in that situation you would have protections set out in the law that would apply to fair comment in respect of existing forms of communication.This highlights one of the concerns that was raised in the minority report by the Labour Party. Why it is that we are having a special form of legislation for only digital forms of communication rather than more generally? This highlights the point that we may not be protecting through this criminalisation provision rights of freedom of expression.Again I make the point that given that we can have decreasing reliance on the traditional forms of media because their revenue model has collapsed and we have got these new forms of media this is the flip side of what I said in my earlier comments in respect of some of the internet service provider liability. We actually might be going here and creating offences on the part of people who think that they are making fair comments in respect of things that are issues of proper public concern. My concern about that is highlighted by clause 19(2) which says: “In determining whether a post would cause harm the court may take into account [the following circumstances]”—it does not have to; it is just “may”. Then one of the things that it may take into account but does not have to is “whether the digital communication is true or false:”. So what we are saying there is that actually a digital communication might be true—it might be true—and if it causes serious emotional harm the court could still find that it is something that is in breach of this law. I think that looks like it is bad law.So the Labour Party will be supporting the amendment here of the ACT member David Seymour to delete clause 19 because that clause needs to be looked at properly. There is no reference to the New Zealand Bill of Rights Act. We do not know whether this clause overrides the New Zealand Bill of Rights Act. It probably does. It is more specific legislation and it is later in time so it may well be that this overrides the provisions in the New Zealand Bill of Rights Act and I do not like that.So I would appreciate the Minister’s comments in respect of the first issue and I would also like her to explain why we cannot actually take a leaf out of the UK book and be very careful to limit the criminal penalties to specifics rather than generalities. We could limit it to private or indecent videos. You know I would have no problem with those being criminalised.I do accept that there are problems with cyber-bullying. I suspect this bill is not going to fix it because of course by the time you have gone through this safe harbour provision the offending thing if it is gossip around a school will have been on a hundred different Facebook pages and it will be out there. So this will be an ineffective piece of legislation but none the less we are inappropriately I suspect constraining rights of free speech in a way that we have not thought through properly.It is interesting that the Justice and Electoral Committee report does not actually deal with either any of these issues properly—neither of them. It just touches upon them very lightly and I do not think it shows an in-depth consideration of what I think are difficult and important issues.