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The Harmful Digital Communications Bill and criminalising free speech

As part of our continuing look at elements of the Harmful Digital Communications Bill (general critique and safe harbours), we now turn to the new offence of causing harm by posting digital communication (section 19). This is a criminal offence and is not related to the rest of the bill with its 10 principles, Approved Agency and quick-fire District Court remedies. It's quite simple:

(1) A person commits an offence if:

  1. the person posts a digital communication with the intention that it cause harm to a victim; and
  2. posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
  3. posting the communication causes harm to the victim.

"harm" is defined in the interpretation section as "serious emotional distress".

Unfortunately, this new offence is actually very wide and may well capture many communications that are of immense value to society - or at least shouldn't be made illegal.

Let's consider the case where someone takes a photo of a politician receiving a bribe and, shocked at their corruption, posts that photo to the internet. This communication would:

  1. be posted with the intention of harming the victim (the prospect of facing criminal charges or being obliged to resign could be assumed to cause the victim distress).
  2. would cause harm to any reasonable person in the position of the victim (any reasonable person would not like having evidence of their criminal corruption exposed to the world).
  3. could be easily proved to have caused harm (serious emotional distress) to the victim.

The penalty? Up to three months in jail or a fine not exceeding $2000.

In section 19(2) the judge gets some guidelines about how to assess whether the communication causes harm, but nowhere is there the idea that some communications that cause harm might actually have some societal value or would otherwise come under freedom of expression. There are no available defences such as that the communication may be in the public interest, counts as fair comment, or exposes criminal wrongdoing.

And just in case you thought that whether the communication is true or not should matter, section 19(4)(a) clarifies that "... or otherwise communicates by means of a digital communication any information, whether truthful or untruthful, about the victim;"

This is obviously a terrible law and will have a detrimental effect on freedom of expression and public discourse in New Zealand. How will our journalists and citizen journalists be able to expose wrong doing when broadcasting it on electronic media such as the internet, radio or TV is a criminal act if it hurts the wrong-doer's feelings?

This law wouldn't be acceptable if it applied to speech in a newspaper and it's not acceptable online.

Section 19 isn't completely worthless - it also criminalises the communication of "intimate visual recordings" in an attempt to harm someone. This seems worth keeping but the parts of section 19 concerning speech need to be either removed or significantly modified to protect freedom of expression.

Thomas Beagle is founder of Tech Liberty and an executive committee member of the New Zealand Council for Civil Liberties.