Clendon David: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeClendon David: Harmful Digital Communications Bill — Third Reading[Sitting date: 30 June 2015. Volume:706;Page:4855. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green): I am pleased to take a final call on this bill to speak in support of this bill. As we go into the final reading it is worth noting as others have done the genesis of this bill if you like. It was the original policy work that was done around this issue which came from the Law Commission which did three pieces of work that were linked. The final and most substantive I think challenged the adequacy of the legislative regime around offending of this nature or nuisance of this nature if you like. It found the legislative framework wanting frankly and proposed a series of options and possible remedies for that.The bill as it has evolved does reflect some of the proposals contained in the Law Commission’s work. Others have been amended but overall it does undoubtedly plug a gap in our legislative framework. In fact that point was commented on by the Police Association in its very useful submission to the Justice and Electoral Committee on this bill where it pointed out that the police could deal with sort of the very low-level nuisance offending and they could deal with the very serious offending where actual physical threats or some sort of direct assault was made on somebody but it also highlighted that there was a large and growing gap in the middle where they were finding it very difficult to actually bring any action against people who were undoubtedly causing grief and causing harm.I think it is important. There has been some critique that we are creating a legislative regime or some statutory framework that is unique to online content unique to the internet or to digital communications and I think that is entirely appropriate. I think it is somewhat disingenuous to suggest that the digital platform if you like—the internet—is somehow not unique not different. The reach of the internet is unique. It is pervasive. It is ubiquitous. The accessibility of the internet is unique. It is possible to inflict considerable harm over a great distance with very very basic access to the internet and I think that has to be recognised.In a sense we have been here before. Clearly in the 1950s and 1960s when television became more commonplace there was a need to have some legislative response to that around censorship around what we would now recognise as broadcasting standards—those sorts of things. I recall a famous quote at the time that TV was simply another home appliance—simply a toaster that happened to have pictures on it. Of course television did change the media landscape in the same way that the internet is changing the way we do business changing the way we trade changing the way we educate people and changing the way we interact socially. It is undoubted that it is a new medium and we need legislation fit for purpose to deal with that.Support for the bill has come from many quarters and I will quote the Human Rights Commission which said: “In our view the bill strikes the correct balance between freedom of expression and access to the internet. A right cannot be interpreted so broadly that it allows others to be harmed.” We can take some comfort given the degree of concern that has been genuinely expressed in some quarters that this bill maybe goes too far. I think the Human Rights Commission among others is a reasonably good judge and in its view we have found that correct balance.I would just for the record reiterate the points Jacinda Ardern made in respect of the intention of this bill being absolutely not to suppress satire. It is not intended to suppress robust political debate. Politicians need to develop thickish skins—that is taken as a given. Cartoons satire—these are legitimate forms of expression of critique and there is no appetite I believe within the bill or from those who drafted it who have looked at it and who are supporting it to see any change to that environment. I am sure that the courts in their turn will understand that and rule accordingly.I think it is important to note also that NetSafe the organisation that is currently involved I guess primarily on an educative basis made the point in its supplementary submission. It commented on the number of people coming to NetSafe having already spoken to multiple organisations and having found that there was nobody to assist them. I do think that speaks to the need for this bill to establish a dedicated agency with some authority—a limited form of authority admittedly but nevertheless some authority—and ultimately if a matter cannot be resolved there for it to go to the courts.I think it needs to be noted that this bill in a sense creates a three-stage approach. A primary function of the approved agency will be to educate and one of the first steps taken at the select committee level was to ensure that very clear language was put into the purpose of the bill. Fundamental to the bill is the expectation the requirement that the approved agency will be heavily involved and one would expect it to be equally well resourced to educate around these matters not least of all with young people but also with people who are not so young.On the occasion when something does occur that upsets someone the next step of course after education is the mediation and negotiation process which the approved agency will seek to facilitate. Again that is a good process—to endeavour simply to get these matters resolved without recourse to the courts but ultimately having the confidence that if people are unreasonable and if they cannot come to a negotiated or a mediated outcome then the courts will step up. Again NetSafe made the point that “You can’t have part of the process and expect the full effect.” The point it made was that the court process is required to make the approved agency process work. There needs to be a little bit of the threat of a stick hanging over the negotiation if you like just to focus people’s minds and to assure them that actually this is serious stuff and will be treated accordingly in the event that people are not able to come to some negotiated remedy.To speak to a couple of points again in part to seek to allay fears or concerns that have been expressed I think we have to be aware of the communication principles that have already been identified. There are if my memory serves 10 of them and they do set the scope for the work that the court might be obliged to do and indeed that the approved agency will do. They set the criteria. They establish a framework for considering whether or not people could and should be genuinely understood as having been offended against and to put some pressure on people causing offence to remedy that situation. The digital communication should not disclose sensitive personal information it should not be threatening intimidating or menacing it should not be indecent or obscene it should make not make false allegations—these are fairly obvious criteria that anybody could understand and respect.I am also given some comfort by the fact that clause 6(2) of the bill specifically states that “In performing functions or exercising powers under this Act the Approved Agency and courts must–… (b) act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.” That is an absolutely clear statement that nothing done in the name of this bill or under its banner can be allowed to be inconsistent with the New Zealand Bill of Rights Act and I think that is a significant defence and one that has been perhaps overlooked.The threshold for proceedings—assuming the approved agency is not able to mediate an outcome and in the event a matter does go to the court then there is a threshold set. It requires that the court must be satisfied that there have been threatened serious breaches or have been serious breaches or repeated breaches of one or more of the communication principles and that the breach has caused or is likely to cause harm to some individual. So it is already a reasonably high threshold to even get the case into the court. The court is able on its own discretion to reject anything that it perceives to be frivolous or vexatious or that does not meet that threshold.Clause 19—again it is not sufficient to say that harm was caused; it must also be proven that there was an intention to cause harm that a reasonable person would expect that harm would be caused and that in fact harm was caused to an individual. So I think we can be reasonably confident that this bill has been well thought through and does put in place some significant protections.I will comment briefly on a matter that was brought up at a late stage which was the concern that in fact you might get a counter-productive outcome. The take-down or safe harbour provisions will take at least a number of days and the content that might otherwise have come down immediately would in this case actually persist for some time. There was an amendment made at the Committee stage—which we entirely support—to the effect that content hosts that receive a complaint can at their own discretion take down material that they in good faith believe is offensive or that conflicts with their terms and conditions.Finally I do indicate my support for this bill. We look forward to its implementation and we certainly support the notion of an ongoing review to ensure it is achieving the outcomes we seek.