Little Andrew: Harmful Digital Communications Bill — First ReadingText is incorporated into the Bound VolumeLittle Andrew: Harmful Digital Communications Bill — First Reading[Sitting date: 14 November 2013. Volume:694;Page:14748. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour): I rise to talk on this new bill the Harmful Digital Communications Bill and to indicate that the Labour Party will support the bill going to the Justice and Electoral Committee for closer examination.It is fair to say that this bill is yet another step in the struggle for the law and for Parliament to catch up with and make some order out of the anarchic world of the internet and social media. The objectives of the bill are needless to say laudable. They are about mitigating harm. We have seen in a very extreme example in just the last couple of weeks how social media at least can be used to be humiliating and abusive to people who may not have known originally that they were being treated in that sort of way.I have to say that the objective of the bill that says that it is about providing a quick and efficient means of redress looks more cynical when you see that it means that redress is to be obtained by private action—private civil action—in the District Court. It is cynical because it is then left up to the victim—or the putative victim—to have to meet the cost of going to court to apply for an order whether it is an interim order to get material taken down or a longstanding or permanent order that is slightly more punitive. Nevertheless it is the victim who has to meet that cost. There would not be many people I suggest who are active on social media today and who are frequent users of the internet—let us call them the digital natives—who have the means to instruct counsel and go to court for these sorts of things.Of course the other reason for my cynicism is that the District Court is already overloaded and there are long delays in many courts. So there is a real question about whether it has the capacity to pick up an extra load of work given the growing numbers of people who are active daily on the internet and on social media.Another issue that we will be examining closely when this goes to the select committee is that one of the faults of this bill in our view is the same as the fault in others being sponsored by the same Minister—not the Associate Minister who just spoke Chester Borrows but the Minister of Justice Judith Collins. Let me draw a comparison with the Victims’ Orders Against Violent Offenders Bill. That again is dependent on civil action. The victim has to meet the cost of dealing with something that actually the criminal justice system and the State might be better equipped to deal with. The harmed person has to go to the District Court. They have to go at their expense. Under the modern legal aid regime there is real doubt about whether they would qualify for legal aid and even if they do they may well be subject to the requirement to repay it and that repayment is then subject to interest. This is not looking good for the people who are most likely to be victims of abuse on the internet and therefore the people who are needing to avail themselves of this legislation. So we will be asking if it is to remain in a civil jurisdiction whether some easily accessible means can be made available to ensure that people can actually partake of the provisions in this bill.Just turning to some of the issues of substance in the bill and I do not want to get too heavily into this as it is yet to be examined by the select committee but we will be looking also at the communication principles. Chester Borrows spoke about one of them. I note that principle 2 in clause 6 says that “A digital communication should not be threatening intimidating or menacing.” So it will be interesting to compare for example the Minister of Justice’s own tweets over the last several months under that provision to see just how compliant they are. Then we might even look not just at the Minister of Justice’s tweets but at her good friend Cameron Slater’s contributions on the internet to see the extent to which they comply with these communication principles.Dr Rajen Prasad: Very abusive.ANDREW LITTLE: Well principle 3 says: “A digital communication should not be grossly offensive to a reasonable person in the complainant’s position.”Dr Rajen Prasad: That’s Whale Oil gone.ANDREW LITTLE: Well every time Whale Oil takes a breath of course he is in breach of that provision. But the question there is of course that I think lawyers will be having a field day with what is “a reasonable person in the complainant’s position.” That looks like a shifting test and the courts will be having great difficulty with it. So no doubt with the assistance of the erstwhile Scott Simpson there will be considerable consideration given to this as Mr Simpson shepherds the bill through the committee. I know that he will be wanting to make sure for the sake of his own reputation that a good quality piece of legislation comes out of the sausage factory that is select committee consideration—something that he can proudly stand up and defend. The communication principles will be one area that we will be looking at closely.Then there will be the offences. Clause 18 of the bill sets out an offence provision. The question will be asked of course of why we do not just resort to contempt of court provisions. If it is an offence to breach an order why do we need to have this offence provision that requires separate enforcement? If the court has made an order and it is breached then that is a contempt of court so the existing contempt of court provisions I would have thought would apply.Let us examine that and look at it a little more closely. In clause 19 there is a very interesting and I would say infelicitous use of the English language. One of thequestions posed in clause 19(1)(b) is whether a person commits an offence if “posting the communication would cause harm to an ordinary reasonable person …”. So we no longer have just a reasonable person; it is an ordinary reasonable person. I do not know what the difference is between an extraordinary reasonable person or a reasonable person who is no longer ordinary. I think we will need to tease out exactly what that means. I would hate to be considered to be just an ordinary reasonable person. I think I am a reasonable person but I do not think I am necessarily an ordinary reasonable person nor do I want to be considered an extraordinary reasonable person. So let us understand exactly what that is because we want this legislation to be meaningful and to speak to the vast bulk of people who are going to be looking to it for some sort of protection.We know what the ill is that this bill is trying to remedy. It is the nasty ugly stuff that goes up on Facebook on other social media on blog sites and on other things. People can be not just offended but harmed seriously harmed by some of the things that are put up. This is not a recipe for calling those in public office to account. I think people in public office stand in a separate category but people who are going about their daily lives—ordinary citizens who can make mistakes or who can attract commentary and criticism—should not be beaten up in these fora which are now so public so widespread and so easily accessible. We understand all that.I want to finally just refer to the safe harbour provisions that the Associate Minister talked about. We think they are a sensible measure a sensible protection for the internet service providers. They should not be caught up at least in the initial complaint phase that will take place under this legislation but of course they do have some responsibilities. We need to know that the internet service providers and the hosts once damaging and harmful material is drawn to their attention understand that their duty if only a moral one is to respond with alacrity to remove it or to at least suspend broadcast of the posts and of the material until if there is to be court action or some sort of application under this bill that at least is resolved. Those are sensible provisions and I can see that we would be quite happy to support those.I think this will be a useful contribution. There are some contentious issues here. Let us see whether we can get around the table and resolve them and make this a meaningful and workable set of provisions for the people who are looking to it for the protection of their reputations and their dignity.