Harmful Digital Communications Bill — First ReadingText is incorporated into the Bound VolumeHarmful Digital Communications Bill — First Reading[Sitting date: 14 November 2013. Volume:694;Page:14747. Text is incorporated into the Bound Volume.]Harmful Digital Communications BillFirst ReadingHon CHESTER BORROWS (Acting Minister of Justice): I moveThat the Harmful Digital Communications Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. Rapid advances in technology over the last few decades have changed the way that people communicate with each other. We now communicate with form relationships with and do business with people on the other side of the world. Our lives are increasingly entwined in the digital world. Smartphones tablets laptops and desktop computers are everywhere. Smartwatches are also on the horizon. Modern technology has opened up a whole new world of opportunities.However new technologies also present new challenges. It is now easier than ever to threaten others spread destructive rumours publish invasive and distressing photographs and harass people. People are bullied more easily instantly and anonymously. Bullying is no longer confined to the classroom or the playground in the lives of young people. A digital age has meant that tormentors can harass their target anywhere at any time and the trails of abuse remain in cyberspace for ever. Research suggests that as many as one in 10 New Zealanders has personal experience of harmful communications on the internet. In 2007 it was estimated that one in five adolescents experienced some form of cyber-bullying or harassment that year.The Law Commission was asked in May 2012 to fast track its consideration of harm from digital communications. In August 2012 it made its recommendations on how to tackle the problem. I want to thank the Law Commission for its thorough work. The bill will give effect to the commission’s legislative recommendations. I say “legislative” because there is already a lot of good work going on to help combat the problems presented by harmful digital communications. For example NetSafe is helping people to deal with these issues by providing users with the tools to protect themselves online. Schools are also moving to implement policies to deal with cyber-bullying. As the Law Commission notes all of these are good measures but are simply not enough by themselves to tackle the problem.The Harmful Digital Communications Bill provides for quick effective and proportionate responses to the harm caused by digital communications. The bill sets out 10 communication principles to guide the work of the approved agency for the courts. For example “a digital communication should not be threatening intimidating or menacing.” Let me be clear that this bill is not aimed at censoring debates and robust exchanges of ideas or suppressing speech online. Freedom of speech is something this Government and all New Zealanders value. However free speech is not an absolute right. It must be balanced with other rights and freedoms. The bill strikes the appropriate balance between freedom of speech and protecting people from being bullied or victimised. It also requires the agency and the courts to act consistently with the New Zealand Bill of Rights Act to avoid any doubt about the importance of our fundamental rights.The first port of call for complaints about harmful digital communications will be the approved agency which will help other people to resolve disputes through negotiation through mediation and by providing advice. The majority of complaints should be resolved by the approved agency without any further need for action. This Government does not want people unnecessarily involved in the court system especially our young people who may be the victims or the perpetrators of harmful digital communications.However for instances where the approved agency cannot resolve the complaint a person can apply to the court for a number of civil orders. For example the court could order a person to remove harmful content issue cease and desist orders or reveal theidentity of an anonymous bully. The court will provide speedy informal and fair remedies but will not be able to order fines or imprisonment. The most serious cases can be dealt with through the new criminal offences of posting a digital communication with intent to cause harm punishable by 3 months’ imprisonment; or inciting a person to commit suicide punishable by 3 years’ imprisonment. To complement this new regime there are also amendments to existing law to ensure that they are fit for purpose and applicable online. For example the Harassment Act is amended so that making contact online is explicitly included as an action that may constitute harassment.The final part of the bill that I would like to discuss is the safe harbour provision. This provision clarifies the law relating to websites and other content hosts and provides people with an easy accessible and direct way to remove harmful content. A content host could be any number of people—blog sites or organisations including the likes of Facebook Twitter Vodafone and TradeMe. Most of our legislation was written before the advent of the internet and is not always clear about when a content host is liable for the contents posted by its users. Some recent court decisions suggested that the content host could be liable for unlawful content that they do not even know about. Given the ease and speed of posting content online and the volumes of information involved the majority of content hosts cannot actually read and vet all content before it is published.The safe harbour operates via a notice and take-down regime. Broadly speaking an online content host will not be liable for unlawful content that another person has posted on the website unless they are notified that the content is unlawful and fail to take reasonable steps to remove the content. The basic principles behind this safe harbour are as with the rest of the bill personal responsibility and fairness. The author of a harmful or illegal communication should be responsible for it. Content hosts should not be liable for things they have no knowledge of.This bill is not a silver bullet. It will not stop overnight people bullying and posting harmful content online. It will however create a First World regime to complement other efforts already taking place to effectively tackle harmful digital communications. I commend this bill to the House.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.SCOTT SIMPSON (National—Coromandel): It is always a pleasure to follow the reasonably unordinary reasonable Andrew Little and it will be good to have him back on the Justice and Electoral Committee to consider this very useful and good piece of legislation the Harmful Digital Communications Bill which has been introduced into the House.Hon Maryan Street: Why what’s wrong with me?SCOTT SIMPSON: I think the Hon Maryan Street needs to be there as well. But what I am suggesting to the member is that we are missing him from the committee. It is often appropriate I think usually that the justice spokesperson for a serious party should sit on the Justice and Electoral Committee. But however in this case usually we do not see too much of him but he will be welcomed back for this piece of legislation.Bullying sadly has been around since time immemorial really. The difficulty with bullying in the past has been how to track it down how to stop it and how to control it. But one of the challenges that those of us who were not born digital natives have is that we were raised through our adolescence and our teenage years in an environment where we were not subjected to harassment by digital technology.Simon O’Connor: Some of us are younger.SCOTT SIMPSON: Some of my colleagues are of course younger. But today we find that for most people under the age of about 30 I guess they are what we now know as digital natives. They have grown up in an environment where sadly it has been a lot easier to partake in bullying and abuse and far worse by the use of cyberspace Facebook the internet texts and all those modern communications. The purpose of this bill of course is to mitigate the harm caused to people by digital communications and to provide victims of that harm with a quick and efficient means of redress.The trick I guess for this piece of legislation is how do we manage that in an environment that is in many respects a little bit like the wild west of technology? It is a challenging conundrum for legislators I suspect all over the world. I am looking forward in the select committee to seeing what steps are being taken in other jurisdictions because I suspect this piece of legislation has the potential to be quite world leading. I suspect that there will be others who will be watching closely what we do.The Law Commission has found that there could be as many as one in 10 New Zealanders who has already experienced harmful communications on the internet and that for those aged between 19 and 29 the number could well be double that. There is obviously a serious issue here. The Law Commission was doing work already on harmful communications as part of its report on new media. The report was entitledThe News Media meets ‘New Media’: Rights Responsibilities and Regulation in the Digital Age. It was last year that the Minister of Justice Judith Collins asked the commission to actually speed up their work and to fast track the work. In August of last year she received the Law Commission’s recommendationsHarmful Digital Communications in the form of a briefing paper and it was in this April that she announced a suite of proposals to tackle cyber-bullying which will be implemented through this bill.The main provisions of the bill are to create a set of 10 communication principles to guide the approved agency that will be created under the bill and that I think will be something we will want to look at closely in the select committee. But the bill will create essentially a new civil enforcement regime that includes the setting up of this new agency as a first port of call for complaints. The agency will be able to investigate and resolve complaints directly and very quickly with the most serious complaints being referred to the District Court which can then issue what is known as a take-down order and of course they will also be able to put in place cease and desist notices. This legislation provides a mechanism for people to quickly and easily request the removal of harmful digital content from websites and blogs if necessary and it also creates this “safe harbour” provision.I am very much looking forward to the select committee process. I am pleased that the Labour Party is supporting this bill through to the select committee and I hope that other parties across the House will do likewise. I commend the bill to the House.Hon MARYAN STREET (Labour): It gives me some pleasure to rise to speak to the Harmful Digital Communications Bill. Although it may have been a long time coming that does not alter the fact that it is here now and I welcome that. We are supporting it on this side of the House with some reservations. They are only reservations that anybody would have around this kind of issue I think. I want to outline three areas in particular that will need careful scrutiny on the part of the Justice and Electoral Committee which the previous speaker Scott Simpson chairs so adeptly.It is true as Scott Simpson said that there was a Law Commission issues paper that came out in 2011 but also last year the Law Commission’s ministerial briefing calledHarmful Digital Communications: The adequacy of the current sanctions and remedies came out. I think that that is a significant contribution to how we might get legislation todeal with issues that a decade ago people had not envisaged arising. Because of new technologies it is incumbent on this House to make sure that we keep our laws up to date. I think that my colleague Andrew Little put it well when he referred to the law chasing or having to keep up some pace with some technological developments.It puts me in mind of the time when I was serving on the Commerce Committee and we dealt with copyright legislation. It was very difficult to get copyright legislation that did not put people out of business and yet protected the rights of artists and creative people in particular to their work. With every exposure through digital media the copyright problem became more pronounced. It did not matter whether it was music or writing; it became more and more difficult to get the law to fit.This issue is not dissimilar. There is a sense of the horse having bolted already but it is appropriate that this House turn its mind to it. We are all acutely sensitised to this issue because of recent revelations about Facebook behaviour that has been nothing short of despicable. Whether or not crimes end up proven to have been committed the behaviour is despicable. I think that some young people will find their reputations and their career prospects destroyed because of what they have indulged in by way of Facebook revelations. That is a lesson to all young people or will be in time I think.There are three things I want to cover. First of all I am particularly interested in Part 2 of the bill which refers to the number of Acts that need to be amended by the passage of this legislation. First of all there is the Crimes Act and that is almost self-explanatory. There are three other pieces of legislation that will be amended simply by the insertion of words that are to do with electronic communication or electronic media or words like “participation in fora for the exchange of ideas and information.” These pieces of legislation are the Harassment Act of 1997 the Human Rights Act of 1993 and the Privacy Act of 1993. Each of these presents the select committee with a different nuance a different layer of application of this bill.The Harassment Act—fine we are bringing that up to date by putting electronic media and electronic communication into the meaning of “harassment” as it is expressed in that Act. That is a good thing because we are aware of and as I say at the moment acutely sensitised to harassment bullying and exposure of people in a way that is despicable as I have said. So the Harassment Act is going to be an important part of the consideration.The second important point in my mind is the amendments to the Human Rights Act. Subpart 3 in Part 2 of the bill will amend the Human Rights Act. It will amend section 61 which addresses racial disharmony; it will amend section 62 which refers to sexual harassment; and it will amend section 63 which refers to racial harassment. That is critically important because next come the amendments to the Privacy Act. There are provisions in the Human Rights Act that with the addition of this bill and the amendment by this bill will really go to the heart of freedom of speech and the inability of people to compromise other people’s right to exist peacefully. That is covered in the Human Rights Act through a range of provisions and making electronic media or electronic communications susceptible to those Acts is a good thing. We do not need neo-Nazi fascist websites to proliferate in this country. I am pleased if by this means there will be some address of that. In other countries around the world we have certainly seen such proliferation and that is undesirable.The third point is around privacy. This bill will amend the Privacy Act but it is going to be an area that requires considerable submission from interested parties and real consideration of those submissions on the part of the select committee. In addition to that we need to be careful around internet service providers and we need to be mindful of the impact of “notice and takedown” measures on their services and their ability to function as businesses. That is another area and I hope that that businessconsideration will be represented by a submission from InternetNZ because the bill does impact on it.I think that this bill is a worthwhile measure. It has got some fish-hooks in it. It has got very sensitive and far-reaching implications across other parts of our legislation. I commend it to the House.GARETH HUGHES (Green): Kia ora Mr Deputy Speaker. Ngā mihi nui ki a koutou. Kia ora. I rise to take a call in support of the Harmful Digital Communications Bill. I think probably every member in this House has been bullied at one point in their life just like every New Zealander. It is a tragic part of life but what we are seeing with online technologies is that it is a different kettle of fish from what it was even 10 years ago 20 years ago or 1000 years ago. We commend the Government for taking action in this area. I think there is detail we will be looking through and engaging closely on during the select committee process. But what we need to make sure is that our young kids particularly are looking after themselves.I note the clauses around—I have lost my words for a minute; I think it is definitely the end of the week and I see the Serjeant-at-Arms standing there—inciting a person to commit suicide. We have seen some absolutely tragic accounts through the media. I am sure many of us are familiar with cyber-bullying which young Kiwis face. It is good that the Government is adopting the Law Commission’s report after some tragic cyber-bullying.What we see is basically three parts in this legislation three main provisions the first of which is the new civil enforcement regime to quickly and effectively deal with harmful digital communications; secondly a criminal offence being established with criminal penalties and new penalties there; and also some other subsidiary changes to other Acts of Parliament.What we also see from an information and communications technology perspective is that—Mr DEPUTY SPEAKER: Order! I am sorry to interrupt the member but the time has come for the House to rise.Debate interrupted.