Harmful Digital Communications Bill passes: its key elements

Tech Liberty co-founder Thomas Beagle

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Is the Harmful Digital Communications Bill a good thing?

Yes, cyber-bullying must be curbed
39%
No, it’ll have a harmful effect on free speech
61%
Total votes: 76

The Harmful Digital Communications Bill passed its third and final reading last night.

Its criminal and "safe harbour" provisions will come into effect once the legislation is given royal assent, expected Monday morning. Work will then begin on appointing the approved agency (see below).

The bill's key elements:

Harmful Digital Communications Bill: key provisions

  • A fine of up to $50,000 for an individual or up to $200,000 for a body corporate, or up to two years’ jail for posting or sending a “harmful digital communication” – aka cyber-bullying with a post likely to cause distress. The bill covers racist, sexist and religiously intolerant comments, plus those about disabilities or sexual orientation;
  • Up to three years’ jail for the new crime of incitement to suicide; 
  • An “approved agency” will advocate on behalf of complainants. The aim is that the agency will be able to make direct contact with web publishers and social media sites like Facebook and Twitter, where a member of the public often has trouble getting heard (the Law Commission has recommended NetSafe be the approved agency; the non-profit NetSafe’s backers include InternetNZ, the NZPolice, the Ministry of Education and private companies); 
  • If the approved agency makes no headway, a complaint is escalated to a District Court judge; and
  • Web publishers can opt in to a safe-harbour provision, protecting them from liability (and arguably also crimping free speech) if they agree to take down allegedly offending material on demand or at least within a grace period of 48 hours.

The bill faced criticism from everyone from Labour's Clare Curran, who argued the safe harbour provision made a mockery of the bill's intent, to ACT's David Seymour, who said it would criminalise children over 14 and undermine free speech.

But in the end it passed easily, 116 to 5 with only Mr Seymour and four Green MPs (who split from their leadership, with permission) voting against it.

The legislation drew immediate flak on social media.

Former InternetNZ chief executive Vikram Kumar wondered if Sean Plunket (cleared by the Broadcasting Standards Authority over his comments about author Eleanor Catton) would have wound up in jail under the HDC. As with any new law, it will take precedent-setting cases to define its boundaries.

Tech Liberty co-founder Thomas Beagle said he was disappointed the "flawed" law had passed. The Council for Civil Liberties executive committee member has criticised the bill for undermining free speech, and questioned whether many of its measures will prove practical. He has also asked why the online world should have different rules over comments and defamation than the offline one (see more on the debate over the bill here).

"No law is perfect"
“No legislation is perfect, and this is no exception," current InternetNZ chief executive Jordan Carter says.

"Like all law that applies in a fast-moving technology environment, the risk is of unintended consequences – or chosen balances of rights not working out in practice.

In recognition of this, InternetNZ calls upon parliamentarians to keep a careful eye on the implementation of this legislation to ensure that appropriate balance is maintained.

"We must all remain vigilant that we have appropriate responses to online harm without damaging free expression.

“I know many in the internet community will be keeping a close eye on this. Parliament and the Government will be too. That is as it should be. If there is any sign that the good intentions behind this legislation are instead leading to unacceptable restrictions on people’s right to communicate, then quick changes will be important."

Mr Carter says its also important for the government to begin an education campaign and appoint the approved agency as soon as possible.

“The sooner the Approved Agency is selected and the sooner the educational elements of this policy are in place, the better,” Jordan Carter says.


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16 Comments & Questions

Commenter icon key: Subscriber Verified

Not sure what to write just in case I get HDC knocking at my portal.

Bad decision, badly planned and executed which is ironic as the idea is in fact sound.

How does this effect people posting on sections of websites like the NBR comments section if the post comes from an internet cafe?

Got to go someone is knocking on the door.

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This is what you get when you have people who do not grasp technology creating laws the govern how technology should be used.

Perhaps a sign this lot should be put out to pasture.

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People are being silly.

This bill does not remove your freedom to criticise or post your view on someone. It is here to remind you that you need to do it properly. People on the internet are irrational - and rather than arguing against an idea or a view with facts, other ideas or some background about why they disagree - they start by insulting the persons intelligence, gender, race, lifestyle which is immature, can be hurtful and has lead to many cases of severe bullying ending in suicide.

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You literally just described limiting freedom of speech by having the government choose for you what words you can and cannot be used. Absolute insanity.

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I think your stupid for supporting this orewellian nightmarish infringement on free speech. Oh no is that the new zealand police? WEEEOOOEEEEOOO
I AM SORRY FOR CALLING THE MAN STUPID ON THE INTERNET! PLEASE TAKE 50 GRAND AND PUT ME IN JAIL FOR MY WRONGSPEAK.

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And then some special snowflake can say that valid criticism against their opinion is actually a cover up of hatred and pof! the comment is gone and the poster faces 2 years. Offence is never given, it is taken. any idiot whit a brain can claim hate on ANYTHING and no-one can disprove it, no matter how constructive the criticism is because at the end of the day, the victim feels victimised and therefore no person on earth can take that away from them. and the person whit the power to send anyone to jail whit a whim is going to use it, and we all know that new Zealand will give that power to women, blacks and so on. And now, anyone whit a idea that gets criticised can just say "oh it got criticised because I'm a woman. this would never happen if I was a man" and no one can disprove it. Imagen had we both been in NZ and i could just have said that your comment was offensive because it tried to stop my freedom of speech as a half Jew, what would you do to disprove it and avoid getting 2 years in jail?

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Yeah, people NEVER abuse laws. That has never happened before. Geez...

Gonna have the police knock on my door because you didn't like what I said? Maybe you won't, but there's definitely someone who will. It's human nature to exploit loopholes.

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War is peace, freedom is slavery, ignorance is strength.

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I like how they're ignoring that this is unenforceable because, as it turns out, most of the internet users of the world are not in NZ.

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I have a website and Facebook page called God or Absurdity and I regularly post things on the FB page that are "religiously intolerant" (e.g. exposing the fact that what ISIS are doing is what the Quran teaches and what Muhammad did - something that many Muslims and liberals find very offensive) and relating to "sexual orientation" I often post things against gay marriage and homosexuality which the Bible clearly calls sin. Will I stop doing this or take down offensive posts? No. Because it's an issue of freedom of speech and the truth. Truth has become the new hate speech. Have I now become a criminal for speaking the truth that is offensive to those who can't handle it? Oh wait, I hear a knocking at the door too...

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For those who want this bill gone, you only have to do one thing: Ride the train all the way through.

What I mean is, show the government just how bad the law is by using it. Show its absurdities by using. Show them the Orwellian nightmare by creating it. Ride the train until it derails itself.

Keep in mind, this is not to suggest that you should go out of your way to make allegations or to set up situations where you end up doing them, just use it as normal. After all, if someone tells you that you can't say anything because you're white, well...

And remember, that's just one example.

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'Up to three years’ jail for the new crime of incitement to suicide'

but isn't this law in itself enough to make people want to kill themselves?

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has an Approved Agency been set up yet?

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Do you want this country to be less free or something? This bill will be so abused by others so they can send the people they hate to jail. Stupid govt....Oh no, I hear sirens, bye guys! [Edited]

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use the bill against the gov ... I'm sure they will have some thing offensive (or what you can call offensive) online somewhere. For example, publications about a bill which unreasonably leaves everything said interpretable as a criminal offensive - I find that offensive, well I would if it was in my home land. How about you?

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