Hughes Gareth: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeHughes Gareth: Harmful Digital Communications Bill — Third Reading[Sitting date: 30 June 2015. Volume:707;Page:4862. Text is incorporated into the Bound Volume.]GARETH HUGHES (Green):Kia ora Mr Deputy Speaker. Ngā mihi nui ki a koutou kia ora. Today Parliament finds itself at the complex intersection of rapidly changing technology and slower-changing legislation. I have no doubt there is not a single member in this House who does not want to reduce the harm that is caused by posting personal and private content online without permission or the messages some poor younger Kiwis have received—a deluge of messages urging suicide. I have no doubt any member is standing for that. This bill though is a case of trying to do something or trying to do anything about a complex and serious phenomenon. The intent is noble—to try to reduce the harm of cyber-bullying—but this House should be measured by the content of our legislation not just by our intent.In my time here I have seen some very badly drafted tech legislation. We have seen the Telecommunications (Interception Capability and Security) Act and the Copyright (Infringing File Sharing) Amendment Act or the “Skynet Act” where badly conceived law came together with under-informed legislators all with the best of interests to pass terrible laws. So for the first time in my parliamentary career today I am casting a separate vote from my party because I believe this law this bill is the wrong solution to the right question which is: “What do we do about cyber-bullying?”. Ultimately this bill is overly broad it risks limiting our freedom of expression and the important role of the media in our democracy and it introduces a precedent that one thing can be legal off-line but illegal online. I agree with the intent of the bill which is to try to reduce cyber-bullying; however I am opposed to the way it is achieved and currently drafted. I believe there are better ways to go about reducing cyber-bullying such as the approved agency and funding education without making a new criminal offence just for the digital world.The bill comes out of some disturbing high-profile examples of online cyber-bullying and the Law Commission report from which the Government has cherry-picked some of the recommendations. The idea of an approved agency is a good one and one that I support to help people who cannot currently access quick redress or support or advice from agencies such as the police who quite frankly were incredibly poorly informed of how they could support victims to get hurtful material taken down under the current content providers’ terms and conditions. Likewise I would like to acknowledge the good work of NetSafe which is currently dealing with around 800 cases a year.Likewise the idea of a notice and take-down power with safe harbour protections for content hosts is a good one and will give the remedy most desired by victims of cyber-bullying where they just want to see the damn stuff get taken off the internet. However I would note this take-down provision applies only to the District Court not to the approved agency which is going to be most likely the highly respected NetSafe which will have to engage in a whole process of mediation before going to the court. Although the material which I think any member of this House would want to see taken down could be removed the risk is we will see it there for longer than desirable.However it is the new criminal offences and the offences for causing harm online by posting a digital communication that I disagree with. This offence carries a penalty of imprisonment for up to 2 years a fine of up to $50000 and is under the minimum jury level limit. I believe this new criminal offence is a step too far. I agree with the UK House of Lords which in its 2014 report said: “what is not an offence off-line should not be an offence online”. I see this as a worrying precedent that sees the online world as something different something foreign and somewhere where rules and laws and criminal offences can be different. It is just not the case. There is a rule for regulating specific technology because it does have unique characteristics and I understand that argument for the internet but I do not support a technology-specific criminal offence which in this case has different rules or standards for the content of speech or behaviour online and off-line.The criminal offence for causing harm by posting a digital communication could additionally have a chilling impact on freedom of expression and the important role of the media. The values we share of freedom of expression and a free media are important to our country and they should not be weakened lightly or in this case inadvertently. As technology expert Thomas Beagle has pointed out causing offence by posting digital content is so over-broad that it criminalises public interest political speech such as for example exposing corruption or the dodgy dealings of a member of Parliament. Likewise parody and satire have an honourable tradition across thousands of years yet often do cause harm to the powerful or the rich whom they seek to embarrass satirise or parody. There is no doubt these people are embarrassed yet they do not have the protections applied.As Tim Watkin has pointed out this law applies not just to bloggers but to journalists as well. He points to the ludicrous situation that a public interest story of say the corrupt MP as we have given the example of before who is subject to harm by the story would be perfectly legal if it were published in a newspaper but punishable if posted on that media organisation’s website or transmitted electronically. The Government unwisely has ignored the Law Commission’s advice to exempt the media and it should have listened to the Law Commission.“Harm” which is the crucial word in this new criminal offence is defined by the interpretation section as “serious emotional distress” which is I believe irresponsibly broad. It would have been far more preferable to modernise and plug the existing gaps in legislation such as the Harassment Act and not introduce a new vague “harm by posting online” offence. Now there are factors—the defence and supporters of the bill will argue this—that the District Court must consider including the context of the digital communication. But could any defence be broader or woollier than what is written in the bill which is context? It is incredibly vague incredibly subjective and it would have been much clearer to protect the public interest or to protect parody and satire. Likewise the truth of the online allegation can be taken into account as a defence similarly to defamation but the way we have gone about it in this bill circumvents 200 years of case law to get there. So a judge may interpret context as a defence in reasonable circumstances but having such a broad subjective view for the new criminal online offence is just inviting the powerful the vexatious and the litigious to use this to shut down legitimate comment.There has to be some irony that a law to address cyber-bullying could be used as a tool to bully and take down different opinions. Internet service providers the content hosts who are often in a highly competitive market working as hard as they can are going to face the pressure of these applications coming in and the quite frankly simple choice to maybe just take down the stuff to avoid a mess or avoid some work which could reduce the information the discussion and the democracy in New Zealand.In summary I support the bill and some the measures contained within it to reduce the harm of cyber-bullying but not the bill itself. It is too broad risks limiting our freedom of speech and introduces this new online-only criminal offence. This bill has sat on the parliamentary agenda for years and years. I urge the Government and members to take a bit more time to make sure we get it right. Thank you very much. Kia ora.