Martin Tracey: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeMartin Tracey: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4662. Text is incorporated into the Bound Volume.]TRACEY MARTIN (Deputy Leader—NZ First):Kia ora Mr Chair. I want to take a second short call just to clear up a few things particularly with regard to Mr Nash’s contribution because I think it was valuable as I think many people might assume that that is where this bill is going. I want to put it into the first person. I want to put it into a real-life situation and state why New Zealand First will continue to support this bill.Mr Nash has pointed out that there are concerns about the subjectivity of the application of this law. I think Mr Nash and his colleagues should be able to rest assured with regard to the approved agency. That is one of the reasons why the approved agency is there. Let us take as an example that recently there was Sikh student on a bus who had a photograph taken of him that was then posted up on Facebook. It was said by the person who posted it up that he was sex offender. That was what was posted up with his photograph. This person did not know this student in any way shape or form.The next thing that happened was that people started to post comments and actually some of those comments were threats against this young man. This young man went to the police and asked for them to do something about these digital threats that were being posted with regard to him—first of all the digital defamation that was taking place and secondly the digital threats.Under the current law one could use the Harassment Act. He certainly was being harassed. The problem was that the Harassment Act assumes right now that there is a relationship between the person being harassed and the person doing the harassing so unfortunately that does not fit with the Harassment Act right now.The second thing is the misuse of a telephone device which is in section 112 of the Telecommunications Act. He could have taken a case against the poster but again the poster could have said that it was a genuine mistake and it comes down to a nuisance. Just because the photo was taken on a phone does not mean it was therefore posted by a phone. It was posted by a phone on to a computer and then everything else was done on a computer so that did not fit within the Act.He was threatened with grievous bodily harm by other people who posted on there and that certainly fits the crime under section 306 of the Crimes Act. However existing law again suggests that there has to be a relationship between the person who is threatening and the person who is being threatened so that does not work. The Crimes Act section 306 does not work. So in other words apart from a police officer going on to Facebook and private messaging the person in the first instance and saying: “Excuse us but this person has come to see us and says that this is a lie. Could you please take it down?” there was nothing in existing law that could allow that student to seek some sort of recourse.That is exactly what the point of this bill is. Under this bill and under these clauses this student could have gone to the approved agency straight away. The moment he knew that that post was up there he could have gone to the approved agency and the Harmful Digital Communications Bill would have come into play.The original post that accused him of being a sex offender definitely fits the civil test under this bill. It breaches the sixth communications principle: “A digital communication should not make a false allegation.” It is serious. There is a test in clause 11 which says it has to be “serious repeated or threatened” and harmful—“the breach has caused or is likely to cause harm to an individual.”So once the agency makes the assessment that they have met that criteria it goes to the person who actually posted the original posting up on Facebook and can actually then take a case against all those who then threatened him and it can ask them to remove it. It can go to the host so it can go to Facebook itself and under this legislation ask it to remove it.At the end of the day if nobody takes it down it can then take a case to the courts and it can say: “Under the Harmful Digital Communications Bill this is a threat to this person. There is no relationship between this person and the people threatening him. However it truly is a threat and this person’s safety is at risk.” That is the purpose of the bill.The purpose of the bill is that there is a hole in our law because of new technology. We shared these concerns to start with but New Zealand First has had conversations to clarify that there is no other method currently for the Sikh student who was abused and threatened over Facebook to seek any sort of remedy from the State so we continue to support having a remedy for these students. Kia ora.