Parker David: Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeParker David: Harmful Digital Communications Bill — Third Reading[Sitting date: 30 June 2015. Volume:706;Page:4866. Text is incorporated into the Bound Volume.]Hon DAVID PARKER (Labour): I find myself agreeing with a lot of the detailed objections that the ACT member David Seymour had to the detail of this bill. The Labour Party on balance is voting for the legislation because it does think that there is a social ill that needs the push back of the law against—I see Dr Russel Norman is smiling at my exposition of our position but this is the position we have reached. There is a social ill that needs to be addressed which is the inappropriate use of the internet to bully people and to make their lives a misery and this new technology needs a push back from Parliament to enforce the societal norm that disapproves of that sort of behaviour. On balance because there is this need to push back against what is happening we are voting for the legislation.The reason that we backed David Seymour’s proposed amendment at the Committee stage was that the legislation is in our opinion too broad and would be better were it narrower. So I readily agree with David Seymour that this legislation is imperfect and could have been made better by this House.What were our main three problems? Indeed I asked the Minister to respond to these issues in the Committee stage and the Minister declined to do so which I think is lamentable because I thought the issues that were being raised by David Seymour and the Labour Party as well were correct.The problems fall into three main categories. First of all you should always be wary where the Government is applying a band-aid to a subset of problems for a particular technology—in this case digital communications—rather than to all communications. This bill applies to harmful digital communications only and therefore does things in respect of digital communications that are not being done in respect of non-digital communications. It is an unusual thing to do—to legislate in a way that constrains rights of expression for only one mode of expression. You would think that if it was right to do that for one mode of expression it would be right to do it for all modes of expression and the fact that it is not across all modes of expression—you should ask yourself why? The answer is because if the Government was to make these proposals in respect of all modes of expression there would be a public uprising as to the limits of freedom of speech and whether we have got that balance right.In respect of this legislation there is no express preservation of the right of the media for example. There is no express reference to rights of freedom of expression under the New Zealand Bill of Rights Act and given that this legislation is passed after the New Zealand Bill of Rights Act and is more specific than the general provisions of the New Zealand Bill of Rights Act it is likely that where there is inconsistency with the New Zealand Bill of Rights Act the provisions in this bill are going to be interpreted in a way that will constrain rights of free expression.This could have been done in a way that is better than that and removes that ambiguity. The way it could have been done would have been to for example criminalise what is obviously and clearly wrong which is what they have done in the United Kingdom where they have criminalised what is called revenge porn—where if someone has taken in a personal relationship situation something that is an intimate photograph it should not be able to be put out there digitally for widespread utilisation after the relationship breaks down.That is essentially what revenge porn does. It takes what was done in personal confines perhaps unwisely but in a moment in a relationship and then it is used for a purpose that was not contemplated at the time. It is not a misrepresentation—it is actually an image that is accurate—but it is being used for a wrong purpose and so in the United Kingdom they have criminalised that. I can understand why and I think the criminal provision in this should have been narrow like that rather than broadly defined as it is because it covers such a wide ambit of communications in an ill-defined way that it goes further than it needs to do. So the first point is that the criminal penalty here will amount to an infringement of free speech without being clear as to the limit on the limit and I think it is poor legislation from that perspective.The second issue is the safe harbours that we voted for. I asked the question of the Minister at the select committee whether we were in fact creating safe harbours that do not exist for internet providers or for intermediaries for these means of communication—to the people who make money out of it—where they do not currently have a safe harbour. My concern was and the example I gave was if you were a provider of some internet communication forum that was attached to something that you made money from—you were trying to attract business to your website that you make money from—and in order to do that you ran an allied service to people that was a communication forum then currently you might face risks if you were publishing something that was defamatory.It seems that the safe harbour that we are creating here will be conferring protections on the organisation that is the intermediary that are greater than their current protections. So we might be undermining the current law which would place that provider at risk if they did not immediately respond to a complaint that something was defamatory and immediately take it down. I am not sure that that is good law because we could be making things worse rather than making things better by creating a safe harbour where there may be none now.I have not been able to get my head around that fully because the Minister’s refusal to engage with that issue in the chair means that I do not know whether that is correct or not.Dr Russel Norman: Is this speech for or against the bill?Hon DAVID PARKER: Well it is a speech against this part of the bill Dr Norman. So this legislation for those reasons is not nearly as good as it could have been because those sorts of concerns could have been dealt with if the Minister had been willing to listen—if the Minister had been willing to vote for some of the amendments that had been brought forward by the Labour Party and also by David Seymour on behalf of the ACT Party.Will it work? That is the other question that we need to ask. Well I suspect that it will not work completely but that it will have some effect really to heighten the stakes for inappropriate behaviour by some of those people who are currently deliberately promulgating harmful digital communications to the detriment of other people in society. So it will have some effect but it also creates complexity in respect of our communication laws generally that could have been avoided through a more targeted piece of legislation.Lastly before I sit down I just want to say again in respect of the definition of what amounts to serious emotional harm that it is very hard to tell because it is not defined and I think that is undesirable as well. With those reservations which are substantial and could have been avoided had the Government been more willing to listen to critics of its own legislation the Labour Party supports this bill.