Curran Clare: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeCurran Clare: Harmful Digital Communications Bill — Third Reading[Sitting date: 25 June 2015. Volume:706;Page:4832. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): Well in 2015 almost all of us are online. We are as a population increasingly spending more time online. We as a population are increasingly using these things mobile devices and the average age of usage of these devices is decreasing. In fact I read a piece of research today that said that in the Netherlands 78 percent of toddlers and pre-schoolers are online. I think that is quite sobering when you think about what the implications of that are for the coming generation. As our usage is increasing though so are the issues of bad behaviour online and as the Minister of Justice has just listed there have been some very high-profile cases of cyber-abuse and cyber-bullying in our own country in recent months and in recent years. Those have occurred on mediums such as social media such as Twitter Facebook and Instagram on blogs in comments on news sites on sites such as TradeMe in the commentary and forum sections. They include things such as the high-profile Roast Busters case the Charlotte Dawson issue of harassment online and the behaviour of bloggers such as Whale Oil. They include things like putting intimate photos online embarrassing photos—pack behaviour which has driven people to self-harm or contributed to self-harm. So there is no doubt about those things. There is no doubt about the fact that harm is being caused and everything that the Minister mentioned in her speech around the issues that are arising and are growing in momentum is important. I do not think that anybody in this House would disagree with that. The big issue is what you do about it whether the policy is right and then whether the detail of the legislation that is being put in place is right—and that is where Labour has had its concerns. In 2012 the Law Commission reported to Parliament that the laws needed changing and that more New Zealanders had experienced harmful communication. So the Harmful Digital Communications Bill was drafted as a result. We supported it at its first reading. When it came back from the select committee we had enough concerns to raise those concerns in the House and not to support it. We have subsequently decided on balance to support the legislation but we have very significant concerns with the legislation. We believe that it will end up back in this House for amendment sooner rather than later and we have committed to review it. It attempts to do a number of things. As the Minister set out it creates a civil enforcement and a criminal regime. It creates an approved agency as the first cab off the rank—the first port of call for people to go—which is a good thing. It creates a place for people to go to get more than advice—to actually get a process a mediation process a place for victims parents and teachers to go particularly.It creates a safe harbour as the Minister set out. This is one of our main problems with this bill though. I have heard this described in the last 24 hours as a result of the amendments that the Minister has put forward on the safe harbour provisions as being a mish-mash or even a dog’s breakfast. This is one of the areas in this legislation where we have real concerns about how effective it will be. We are concerned that it actually may make the problem worse. The Minister talked about how quickly online information can travel around—go viral as we say in the cyber environment. A piece can actually have a much bigger impact on somebody whether it is a photo a claim a very harmful threatening communication to somebody or whatever it is. It can actually go viral and the length of time that it is allowed up can actually have an exponential effect and create more harm. The safe harbour provisions in this piece of legislation actually create quite an extensive length of time. Our concern is that 48 hours is the first block of time when the victim complains and the complaint has to be put to the person who put up the offending matter. That 48 hours can go past before anything can actually be done about the complaint and then another 48 hours may pass before the piece of information is actually taken down. That is actually 4 days and the Minister talked about how much damage can be done in an hour so we have some significant concerns about it. We do not think that it is actually going to have that effect. The other thing about the safe harbour provisions is that they do not state precisely the scope of the protection from legal liability for the internet service provider for the online content host which is how it is described in the legislation. It does not actually spell that out. It also will allow a person who claims reputational harm to make a complaint which could result in a takedown or what is being called “disablement” in the legislation even though the usual path to follow would be that of defamation. The question is would a takedown have an impact on a measure of damages? I do not think that this legislation considered that. I do not know whether the officials properly considered it. In fact the whole process was rushed through the select committee and then we had a substantial set of amendments plonked in the House this week as an attempt to try to redress some of these issues. My concern is that they have actually made them worse. The takedown regime allows for the removal of certain content without the consideration of whether or not it amounts to a harmful digital communication. That in essence amounts to a form of censorship by complaint without consideration of the substance of the content. We are getting into detail here but the detail is actually the important part of the legislation. It might be that you have the intent to do good. This piece of legislation is an example of the Government wanting to do something about a problem. It is a good intent and it is an intent that everyone in this House has but actually what has come forward in the legislation may actually make the problem worse down the track and that is what we are concerned about. We are also concerned about the criminal penalty that is being created which applies only in the cyber environment and which has the potential to criminalise young people. We believe that that is a serious problem because it applies only in the cyber environment and is not comparable in the physical environment and because it may apply to young people. We believe that more thought needed to go into that. The definition of harm is very broad: it is “serious emotional distress”. That is going to have to be tested in the courts to see what it actually means.There is no public interest defence that raises threats to freedom of speech which is the other side of the coin to cyber abuse and there is no exemption being made for media. So in essence we are reluctantly supporting this legislation. We believe that it is going down the path of legality rather than addressing core issues that are largely facing young people. The voices of young people are missing in this piece of legislation. We believe that the Minister has closed her ears to the practical concerns and principled arguments around the matters that I have raised today. I know that there are more issues that have arisen in this piece of legislation but some of these are really fundamental issues. How long is it going to be before we have a court case where a cartoonist and a news media outlet are before the courts because a case has been taken using this legislation for severe emotional distress caused to a religious group or a person who feels offended by that? How long is it going to take before there is a 14 or 15-year-old who has been hauled before the courts? Those are the things that we are concerned about. We are reluctantly supporting this bill.