Harmful Digital Communications Bill — Third ReadingText is incorporated into the Bound VolumeHarmful Digital Communications Bill — Third Reading[Sitting date: 25 June 2015. Volume:706;Page:4830. Text is incorporated into the Bound Volume.]Harmful Digital Communications BillThird ReadingHon AMY ADAMS (Minister of Justice): I move That the Harmful Digital Communications Bill be now read a third time. Cyber-bullying is a real and growing problem. It is not a minor issue confined to a small number of people. One in five New Zealanders aged 13 to 30 have experienced harmful communications on the internet but actually victims can be found across all age groups. We need to do something to stem these new and insidious threats. This bill will help stop cyber-bullies and reduce the devastating impacts their actions can have by simplifying the process for getting abusive material off the internet in a quick and proportionate way. These proposals empower victims by providing a quick low-cost and effective way to right the wrongs done to them.We live in the digital age of the internet where smartphones outnumber people and every day we are spending around 6 hours connected at home or on the go. Social media has fast become one of our top sources of information and a single post or a tweet can be shared around the world thousands of times and across millions of screens within seconds. To give you an idea of the speed and reach of the internet the infamous Ellen DeGeneres multi-celebrity selfie at the 2014 Oscars was seen by 32.8 million people on Twitter in the first 12 hours alone.It has been said that every 2 days we create as much information as we did from the dawn of civilisation up until 2003. These digital technologies allow New Zealanders to connect and interact in new and exciting ways and they are changing almost every aspect of our lives. On the whole they present us with a tremendous opportunity to share ideas knowledge and experiences with other people anywhere in the world.But there is a dark and sinister side to the internet. Some people use communication technologies such as email text messaging and social media to intimidate others spread damaging or degrading rumours and publish invasive and intimate photographs. These are rapidly cheaply and anonymously disseminated to huge audiences. This must stop. Whether it is in the schoolyard the workplace or at home bullying anywhere is intolerable. But the reality is that the digital age has allowed the reach and impact of bullying to increase dramatically. Harmful digital communications are not confined to one place or time. They can spread anywhere anytime to any audience and they can last for ever. This means victims are forced to relive the attack again and again leading to an almost endless cycle of re-victimisation. Digital communications have unique characteristics and require a targeted response. That is why we are introducing specific legislation to deal with cyber-bullying.There are heart-breaking stories from around New Zealand of young Kiwis in particular making tragic choices in the wake of severe cyber-bullying. In 2009 Rotorua schoolgirl Hayley-Ann Fenton took her own life after receiving what the coroner described as “extraordinarily abusive text messages”. Stephanie Garrett was also 15 years old when she died in Palmerston North in 2013 having been bullied online in the days leading up to her death. These deaths were a tragedy and they were completely preventable. A recent study of 18000 children from years 5 to 13 found that 31 percent believed cyber-bullying was a problem at their school. Last year Barnardos in Canterbury saw a 70 percent increase in calls to the 0800 What’s Up helpline where children were in imminent harm with cyber-bullying cited as being behind many of the calls.Across Parliament we can all agree that there is real significant harm that can be caused through digital means. It is a new threat and it is a very real very serious threat that Parliament has to respond to. I want to applaud those parties here today who are supporting this legislation. I want to commend the constructive way in which parties across this House have dealt with me on this bill. New Zealanders can feel assured that their Parliament has nutted out the ins and outs of this bill to the fullest extent and its wide support showcases how Parliament can come together to work on important issues.The Government tasked the Law Commission with taking a comprehensive look at this issue. Its findings confirmed concerns held by New Zealanders that efforts to remove abusive material from the internet under existing laws are often difficult drawn out and costly and there are limited sanctions available to aid such efforts to hold offenders to account. So Parliament decided to act. This legislation tackles cyber-bullying head-on. It sends a clear message to cyber-bullies and puts on notice anyone wanting to use the internet to spread abhorrent abuse or material online. It will deter prevent and mitigate harm caused to individuals and it simplifies the process for getting abusive material off the internet quickly and effectively while respecting free speech rights.To achieve this purpose the legislation introduces several important measures. Firstly it creates new criminal offences to deal with the most serious of harmful digital communications. It makes it an offence to send messages and post material online that deliberately sets out to cause and causes serious emotional distress and those offences are punishable by up to 2 years’ imprisonment or a maximum fine of up to $50000 for individuals or up to $200000 for companies. It also creates a new offence of incitement to commit suicide which would apply in situations where the person does not actually attempt to take their own life. If convicted an offender may be sentenced to up to 3 years in prison. The new offence recognises the distress caused by provoking others to commit suicide and highlights that the consequences of this kind of harassment are too serious to ignore. These new offences send a clear strong message that serious and harmful instances of online bullying and harassment can be criminal behaviour and where appropriate those who torment others can and will be held to account.During the passage of the bill significant attention has been given to the criminal aspects of the legislation but as I have been at pains to point out the vast majority of measures are in fact focused on making sure victims can get quick and effective help. These measures seek to empower individuals and change online behaviour.Under this legislation an approved agency will be appointed to resolve complaints about harmful digital communications. The agency will provide timely and effective assistance to victims and it will use informal means such as negotiation mediation persuasion and education. The approved agency will have a statutory function of raising awareness and educating the public including providing information to schools to help educate students and upskill teachers. It will provide online safety advice and education to the general public and it will collaborate with service providers and agencies both here and overseas to better achieve the purpose of the legislation.Education is certainly part of the solution but victims of cyber-bullying also need real effective mechanisms to remove abusive material and prevent its spread and the bill provides proportionate and effective remedies. For thorny complaints the legislation gives the District Court new powers that will provide a speedy efficient and relatively cheap avenue for dealing with serious or repeated harmful digital communications. In such cases the court will be able to order a broad range of remedies including ordering the taking down of the material ordering that a correction or apology be issued or ordering the release of the identity of the source of an anonymous communication. `Another core measure is the introduction of a safe harbour which provides online content hosts with a simple optional process for handling complaints. Where followed this allows people to easily and quickly request the removal of harmful and unlawful content posted by others and for hosts to avoid liability for that content. The safe harbour is based on personal responsibility and fairness. The author or creator of the allegedly harmful or unlawful content should be responsible for that content and be given an opportunity to respond to the allegations. Once the bill is enacted different measures will come into force at different times. The new offence provisions and the safe harbour provisions will take effect immediately. The approved agency and the District Court orders will be up and running within 2 years of enactment.Concerns that the Harmful Digital Communications Bill will limit the rights to free speech or expression or prevent genuine media reporting are simply unfounded. Much has been made of the potential impact of this legislation on the freedom of speech. It is worth remembering that from the outset the freedoms we enjoy are not and have never been absolute. You cannot scream “Fire!” in a crowded theatre nor should you be allowed to abuse someone online incite people to kill themselves on social media or share revenge porn with the world and claim that is your absolute right. There can and there should be reasonable limits where demonstrably justified in a free and just society.While seeking to prevent and to reduce harm to individuals the Harmful Digital Communications Bill takes great care to safeguard freedom of expression. For example before a court can order a take-down order it must take into account factors such as the public interest and the truth of the statement. The court must also act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act. This includes acting consistently with freedom of expression.This bill is world-leading. The bill will give victims of cyber-bullying quick and practical measures to stop and take down abusive material. The purpose of the bill is to deter prevent and mitigate harm caused to individuals and it simplifies the process for getting abusive material off the internet quickly and effectively while respecting free-speech rights. I welcome the bipartisanship the House has displayed in supporting this legislation and I absolutely commend it to the House.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.JONO NAYLOR (National): This is always an interesting time of the day to have to rise and start to take a call knowing full well that somewhere along the line in this speech the bell is going to go and you are going to get told to sit down. But I will start anyway because I am sure I will get to finish my speech at some later date. It would be great to live in a society where we did not need legislation like this. It would be great if people could behave appropriately but while we have still got vindictive or stupid or even naive people out there who are behaving in a way that is harmful to others we need to have legislation in place to protect people from that type of behaviour.I just want to focus on that a little bit. We have been talking a lot about young people I know with regard to this. It is incredibly widespread. Studies have shown that perhaps up to one in five high school students has experienced cyber-bullying at some point in their high school years. It is an incredibly high statistic. Some of that is vindictive. Some of that as I said is just stupid on behalf of the perpetrators and sometimes it is just naive. Some people argued that this is a very heavy-handed way to deal with some of that behaviour.However when you look at the results of this kind of behaviour we can look at the number of young people for whom it leads to truancy perhaps because they do not want to go to school and face their peers because of something that has been posted on social media or the level of anxiety that that starts to lead to or worse still levels of depression self-harm and as we have already heard referred to a number of times in the House tonight young people even getting to the point where they take their own lives. It is very easy for us to keep talking about young people. I know of the high-profile case of Charlotte Dawson who took her own life. It is tragic that there are older people as well who are facing this. Although we are talking a lot about young people I think we need to make sure that we do not forget older people as well.As I said because of the consequences of this kind of behaviour it is critically important that we do take it seriously. It is critically important because social media is incredibly powerful in the number of people whom it can reach so quickly. Although this is not to demonise social media; in fact it can be a very positive thing. I know that a Facebook page I set up this week has built to about 8000 people liking it and one post reached 142000 people. So it is incredibly rapid the way these things can work. I know my colleague Chris Bishop took a photograph of a note that he wrote to the Hon David Parker and suddenly that has ended up with 22000 people seeing it as well. So this does spread and we need to make sure that while we do not demonise social media we do need to ensure that we are taking appropriate steps where it is negative to not having such a bad thing. In fact you might say that the vibe of the message is important. Quite often it is not just the specific things that are being said but it is the vibe. It is the kind of message that is being created for young people and the effects that it has on them.It is often heard around this Chamber as we have been debating this through the Committee of the whole House—The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair.Debate interrupted.