New Zealand Parliament Overwhelmingly Decides Free Speech Must Take A Backseat To Cyberbullying Concerns

New Zealand is the latest country to “do something” about online trolling. A rather comprehensive anti-cyberbullying act passed its third reading in the Parliament by a significant margin (116-5) and is awaiting royal assent. The “Harmful Digital Communications Act” criminalizes plenty of speech, mainly through the use of broad wording.

Principle 1

A digital communication should not disclose sensitive personal facts about an individual.

Principle 2

A digital communication should not be threatening, intimidating, or menacing.

Principle 3

A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4

A digital communication should not be indecent or obscene.

Principle 5

A digital communication should not be used to harass an individual.

Principle 6

A digital communication should not make a false allegation.

Principle 7

A digital communication should not contain a matter that is published in breach of confidence.

Principle 8

A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9

A digital communication should not incite or encourage an individual to commit suicide.

Principle 10

A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Violating these principles could result in a two-year prison sentence. Encouraging someone to take their own life could result in an additional year in prison, even if no suicide attempt is made.

A quick glance at the principles reveals several flaws. First off, journalists are going to have a hard time avoiding disclosing “sensitive facts about an individual.” While the courts are obliged to weigh the public interest during enforcement of this act, it sets a very low bar for those who wish to file complaints. And while deliberating this aspect, courts may issue interim orders to take down “offending” material until the matter is resolved.

That’s just one aspect that chills speech. Lowering the bar for “harm” to “serious emotional distress” is another. The wording hints at objectivity with “reasonable person” but also asks the “reasonable person” to act as an empathetic proxy for the person filing the complaint.

Principle 10 fortunately limits itself to targeted individuals, rather than criminalizing the denigration of entire groups. Ignorance shouldn’t be criminalized. There’s far too much of it in the world, but putting people in jail for being racist, sexist or bashing their least-favorite religion does nothing to change the minds of those involved and will needlessly harm the lives of people who are far more stupid than dangerous.

On top of this, the new law would add additional responsibilities for social media platforms and site owners. They are invited to apply for New Zealand-specific “safe harbors,” but these only provide them temporary immunity from prosecution. Once the court order arrives, platform/site owners are obliged to remove the offending post(s). Failure to do so puts the site owners in line for $50,000 fines and/or prison terms. So, it’s not really a “safe harbor.” All it does is prevent the person filing the complaint from going after the platform/site first, rather than the person actually posting the offending content.

The arguments for the passage of the bill were the expected ones. Legislator Jacqui Dean admitted there were concerns about the new law — especially considering there were plenty of laws on the books already to deal with a majority of the offenses (defamation, harassment, etc.), but still felt more was needed because children.

There have been many thoughtful contributions on this Harmful Digital Communications Bill. I do acknowledge that it is a legislative response that some view as impinging on freedom of speech and perhaps might be too heavy-handed. What I would say is that the protection of our young people in particular—their protection from cyber-bullying—is so very important that I think this bill is a very good step, and I commend it to the House.

This argument — from Deputy Leader Tracey Martin — is particularly horrifying, especially considering her earlier statement that the internet’s mutating “threats” are the reason new legislation is needed. Martin thinks there should be a clear delineation between those who receive the “public interest” exemption and those who don’t, despite her previous acknowledgment that the entire situation remains in a constant state of flux.

Ms Ardern addressed the question of whether—there was conversation at the select committee—bloggers were really “media”. I would make this statement: media can certainly be bloggers; bloggers cannot, and should not, ever be considered as media. The media has actually taken training. They have criteria. They have boundaries that they work inside of, and they can be held accountable inside of them. Anybody who wants to set up a blog and just vent their opinion should not be considered media. So with regard to that, I would hope—and I know it was pushed by certain members of the blogging society at the select committee—that the line maintained by media, true media, is maintained.

Some of the worst arguments appeared outside of the legislation. This editorial, written by Minister of Justice, Amy Adams, hits all the speech tropes in three sentences.

It’s worth remembering that no right or freedom is absolute. Just as you can’t scream fire in a crowded theatre, nor should you be allowed to threaten someone online, incite people to kill themselves on social media, or share revenge porn with the world, and claim that as your democratic right. Our rights can, and should be, subject to reasonable limits where demonstrably justified in a free and democratic society.

The only mitigating factor in Adam’s “free speech is more about what’s not allowed” argument is that her view comes from the viewpoint of a New Zealander, rather than someone deliberately misreading the First Amendment.

One of the few to vote against the bill (and against his own party) was Gareth Hughes, who made several good points during his address, starting with the bill’s creation of two sets of laws that treat online and offline very differently.

In my time here I have seen some very badly drafted tech legislation. We have seen the Telecommunications (Interception Capability and Security) Act and the Copyright (Infringing File Sharing) Amendment Act, or the “Skynet Act”, where badly conceived law came together with under-informed legislators, all with the best of interests, to pass terrible laws. So, for the first time in my parliamentary career, today I am casting a separate vote from my party, because I believe this law, this bill, is the wrong solution to the right question, which is “What do we do about cyber-bullying?”. Ultimately, this bill is overly broad, it risks limiting our freedom of expression and the important role of the media in our democracy, and it introduces a precedent that one thing can be legal offline but illegal onlineI believe there are better ways to go about reducing cyber-bullying, such as the approved agency and funding education, without making a new criminal offence just for the digital world.

[…]

As Tim Watkin has pointed out, this law applies not just to bloggers but to journalists as well. He points to the ludicrous situation that a public interest story of, say, the corrupt MP, as we have given the example of before, who is subject to harm by the story, would be perfectly legal if it were published in a newspaper but punishable if posted on that media organisation’s website or transmitted electronically.

David Seymour (Leader – ACT) noted the bill’s “do something” origin and its overall awfulness.

This bill is a case study in bad lawmaking. All of the elements of bad lawmaking exist in this bill. Not since we microchipped dogs in the hope that it would prevent a particularly egregious dog event has there has been such a bad law before this House. First, you had the high-profile and really quite disgraceful event. Then you had the discovery that in actual fact the laws in place had not been properly used by the agency in place to prevent the harms that occurred there. Then you had the knee-jerk reaction from the politicians, who said: “We must do something. This bill is indeed something; therefore, we will pass this bill, and it must be the right thing to do.”

[…]

What exactly does this bill do? Well, the first thing that it does is introduce a set of communications principles that might be appropriate if we were about to embark on a school camp, but which are not appropriate for the governance of 4.5 million people, many of whom are adults—and the children among them are the responsibility of adults. It says that you cannot offend somebody. So, for instance, would Flight of the Conchords’ song Albi the Racist Dragon be offensive if it was communicated online? Well, we are told, in defence of the “badly burnt Albanian boy” from last week, that of course this law would never be used in such a silly and un-sensible way. That is the problem with the law: it gives no protection. We are supposed to rely on the beneficence of the enforcers. That is bad lawmaking.

Seymour also pointed out the “government knows best” condescension being displayed toward opponents of the broadly-worded bill.

The pace of development on the internet is so rapid that, in actual fact, the incentive for the hosts of content is to give good experiences. If it is true that harm is being done, then the one person who has both the incentive and the means to rapidly mitigate that harm is the host, whether that be Facebook, or Ask.fm, or Twitter, or whoever else hosts the website. For the same reason that harmful digital communication becomes exponentially greater, those people have the tools to mitigate it. But you do not hear that from the Government or from the supporters of this bill. There is a moralising tone from them: if you have nothing to hide, then you have nothing to fear; that these vague principles will not be enforced for silly reasons, you understand; that as long as you are sensible and you are doing nothing wrong, it will not be used against you.

This mentality is fully on display in the Minister of Justice’s op-ed:

Some commentators claim the bill’s measures erode freedom of expression and prevent genuine media reporting. These fears are unfounded and I’m confident the bill has struck the right balance between preventing real harm and preserving valuable free speech.

Critics have hysterically claimed it will muzzle journalists from pursuing stories and restrict cartoonists from publishing satire.

This is simply untrue.

In defense of her claims, the Minister points at the bill’s intentions.

The bill aims to stop and prevent the circulation of online abuse, not curtail people’s freedoms of expression or suppress the media.

As if broadly-written laws have never resulted in unintended consequences and mission creep. According to Adams, the government is a good steward of citizens’ rights and never acts out of malice, self-interest or pure stupidity. The government can be trusted to fight for citizens rather than allow the powerful to abuse a bad law for their own ends. Really. Trust us. This time we mean it.

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