Harmful Digital Communications Bill

This is a debate on clauses 3 to 22A and the schedule.

One of the things I am quite certain that the whole Committee will agree on in this bill, although I am sure there will be points of disagreement, is that we wish to protect particularly our young people from harm in what is becoming an increasingly complex and fast-moving digital world. A number of aspects of this bill do directly address the impacts of cyber-bullying on young people, and it is that one point, the principle behind this bill and the very reason for this bill, that I am sure we will all find agreement on. I doubt that there will be—and I would expect that there will not be—a dissenting voice amongst all the parents, aunties, uncles, and grandparents gathered in this Parliament and all around New Zealand who take an interest in these things, including our teachers and school principals and anybody who has stewardship for a time over children.

It is interesting that this bill comes as a result of work by the Law Commission back in 2012, which was asked by the then Minister of Justice to look into the quickly evolving world of cyber-bullying and the terrible impact it was having, particularly on young people. If you reflect on the Law Commission’s work, it started back in 2012, and here we are in the middle of 2015. I am quite sure the device I am using now is eons more capable of transmitting all sorts of things, be they messages, videos, or pictures, than even 3 or 4 years ago. Many, many of these devices that we use mostly as a work tool are used also by many people in society, mostly for exchange of good communication, but not always.

Also, with your indulgence, if I might just very briefly widen out the conversation a little to reflect on what is happening in terms of the cyberconversation about a political party, not represented in this Parliament, that started with a press release or a press conference and has exponentially exploded into cyberspace. It just goes to show how very quickly things can move these days, and once something is committed to the internet via Twitter or Facebook or any form of communication, it is there—it does not go away—and that is what a number of young people have discovered to their cost. If you look through Facebook and see some pictures perhaps of young people having fun at a party, you would think: “Oh, OK.”, but it is not so good when you are going to apply for your first job after you have done your degree and your employer or their agent goes through and just has a look at you and your online profile. You might then start to think: “Perhaps there are some things I did—it’s fine I did them, but they should not necessarily have ended up online.” That is the genesis of this bill.

I was not part of the consideration of this bill by the then Justice and Electoral Committee, but I have read carefully the recommended changes that were proposed by the previous select committee, and I will start going through them—we have only 5-minute calls in this part of the debate. There are some clarifications and changes suggested by the select committee, and also further changes suggested by the Minister, which I am sure will also be talked about. There are some pretty basic tidy-ups that the committee did, and I commend the previous committee for its diligence and the fact that its members obviously listened to submitters who came to the committee and pointed out perhaps some degree of looseness in some of the provisions.

The first one I am going to mention is inserting the same definition of an internet protocol address provider into the bill as exists in the Copyright Act 1994. Of course, this means that the definition of an internet protocol address provider will be explicitly included in the bill, whereas before, as the bill was introduced to the House, that was not necessarily explicit. There will be a subclause inserted into the bill to allow the District Court to be able to make an order against an internet protocol address provider to release the identity of an anonymous person’s account to the court. Thank you.

Well, this bill went through the Justice and Electoral Committee very fast over a year ago and came back to the House for its second reading. It did not have its second reading until a couple of months ago and now we are into the Committee stage. There is no doubt—as the previous speaker, Jacqui Dean, who chairs the Justice and Electoral Committee, has noted—that cyber-bullying is a significant issue. Members on this side of the Chamber completely agree with that and know that there are serious real life consequences for victims and that the proliferation of communications, particularly hand-held devices that people have with them the whole time, has allowed for much more instant communication and for the consequences of that to be very real. We also recognise that the current framework is inadequate, so the need to have a new framework is important. The Law Commission went through quite an extensive piece of work around that.

However, in terms of the bill that is before us and the bill as it was through the various processes, Labour has had significant concerns and we have not resiled from setting those concerns out there. We continue to have grave concerns about the bill in its present form. We acknowledge, however, the work that the Minister of Justice has done to attempt to redress some of those issues in the bill. Despite that, we continue to have concerns and we will be outlining those over the course of this evening, but on balance we consider the issues of cyber-bullying serious enough to warrant our support for the bill through the Committee stage.

We do, however, consider that the bill will have real problems in its execution and its application. It is going to result in cases being referred to the court that will waste the court’s time. It will put pressure on the approved agency that is set out in the bill and there are no guarantees that the approved agency will be properly resourced or properly skilled to deal with the mediation and legal work required, because this is new territory. One of Labour’s considerable problems with this bill is that it is back to front. It should have been the end of the process rather than the beginning. There should have been a comprehensive education programme in place that enabled the community and agencies to become much better equipped to deal with cyber-bullying before punitive new laws were introduced that were untested and created new offences that apply in only the cyber environment. Instead, this is where we have ended up pretty much first, and we have got no guarantees that there will be the resourcing put in place to ensure that the new regimes will be able to actually be effective.

The bill, as I said, was rushed through the select committee unnecessarily. There was a very, very important stakeholder group that never ever got consulted, and that is the young people who are largely going to be affected and the people who represent them: people in schools and people who are parents. There should have been a much more extensive process throughout the community before this bill even came before a select committee and, unfortunately, that did not happen. So if this is going to come in—when and if it is enacted—it will come as quite a shock, I think, to large parts of the community in terms of the measures that are in place, and the criminal offence that is in place and the penalties that are being imposed in that.

Labour abstained from voting on the bill in the select committee and we voted against it in the second reading, as I have said. We did express a number of concerns, which I am just going to quickly set out here tonight in my opening contribution. We believe that the bill has the potential to criminalise children, and it continues to have that potential to criminalise children, for behaviour that is best dealt with through education and those interventions. Labour has an amendment in the House tonight to address the part of the bill that provides that anyone under 17 cannot be convicted under clauses 18 and 19 of the bill. Tonight I urge speakers in the House on this bill to read and consider that, and to think about the consequences of the impact on young people of being put in a court situation and potentially convicted.

We believe that the definition of “harm” is too broad, and we are certainly not alone in that. The definition, which is “serious emotional distress”, has the inability to be tested in any way until the matter goes before a court, and not just before a court but also before the approved agency that will be dealing with the bulk of cases in the civil regime. It will have to initially decide what the legal definitions are and ensure that there is a balancing act that takes into account free speech as well as emotional distress to the victim. It will need to determine that, but will it be equipped to do so? That is a really important question. Will it be equipped to do so? We are yet to know what and who the approved agency will be. As it stands, there will need to be legal training involved in making those sorts of judgments.

The proposed civil enforcement regime in the new criminal offence displaces the longstanding balance in New Zealand law, and it is being replaced with novel and untested standards. What this piece of legislation does is create a new criminal offence that occurs in only the cyber environment. It does not mirror an offence in the physical environment and, therefore, it is a completely new and untested means of addressing what is a significant problem. We have concerns about that. We in the Labour Party are certainly not the only ones who are concerned about this. I know that many in the legal community also have concerns about this. We believe that it is also out of line with what are the trends that are happening overseas, which are more away from criminalisation and towards education and ways of dealing with things in the community that involve mediation and ensuring that the community is better informed and better equipped. We believe that there are questions about whether it will be able to prevent harm, and that it will not provide a quick and efficient method of complaint and take down.

One of the major provisions in the Minister’s Supplementary Order Paper 91 is around the safe harbour provision. If there is something harmful that has been posted, it allows for a 48-hour period in order for the person who posted the harmful item to be contacted. That is a long time—that is an awfully long time—to have something very harmful up. So the Minister’s Supplementary Order Paper will enable online content hosts to use their own provisions. For example, an internet service provider such as TradeMe, or whatever, that has existing terms and conditions that it would rather use, such as taking the item down immediately—which I know organisations like Facebook, Google, and YouTube often do—is now allowed to use those provisions. This is a good thing, but they will not be covered under the safe harbour provision of the Act if they do so. So, essentially, it is a bit round the wrong way, and it means that harmful items are going to be out there in the public arena for quite a long period of time with no legal provision to take them down, and the effect of that is untested.

I do want to take a call on Part 1, which is clearly the most significant part of the bill, and talk a little bit about where we are and Supplementary Order Paper 91, which I am tabling today, to pick up on some of the issues that have been raised since the bill was last before the House, which I think did make some very valid points that we wanted to address. I want to thank members across the House who have worked constructively with me on some of the issues that they have seen with the bill, because what I do accept is that this is a new regime. I make no apology for that, because we are dealing with new and insidious threats that simply were not around in years gone by and that I think it is absolutely our responsibility to respond to and provide for so that people in New Zealand are properly protected.

I think one of the matters that we are all really agreed on is that there is real, significant harm that can be caused through digital means. It is a new threat pattern, and a very real and very serious threat pattern, that this House has to respond to. I was very much guided by the report of the Law Commission in 2012 on this area. For anyone who has not read that piece of work and who is following this debate with interest, I really do encourage them to go back to the Law Commission’s report, which noted that about 20 percent of New Zealanders up to the age of 30 are suffering from this. So it is not a small fringe group, and I think we can probably safely say that that number is likely to grow as digital means of communication become even more prevalent than they are now.

One of the things that I do want to take a little bit of issue with, though, in terms of how the debate is progressing so far, is that the majority of this framework is about education and civil action. A very, very small number of cases are ever likely to trigger the requirement for the ultimate criminal sanction that is in it—and I will come back to talk about that—but I am absolutely and strongly of the view that you do need to have the option of a criminal sanction for the most severe and the most vile and reprehensible and egregious types of conduct that we can see, and that, frankly, we have seen already in New Zealand and around the world. But, actually, the largest part of this framework is around setting up an approved agency that will work on education with the community and stakeholder groups and that will focus on mediation, and a mediated outcome is likely to be the most common response and resolution of issues raised.

Where I agree with Clare Curran, the member who has just resumed her seat, is that it is critical that we make a very clever and careful choice as to what that agency is and that it is appropriately resourced and tasked with working in the community, because it will have a role that is a very high-trust role and that will require the community to understand that when it is talking, it is doing so from a sensible and balanced position of wanting to enhance and support digital communications, but educating people around, first, the harm that can be caused and, second, the societally accepted limits of how that conversation and that communication can work. Actually, you can cause real significant harm to people through what can be the actions of a few seconds. So education is the first and most important part of it.

The second step in the framework is the mediation of complaints that arise. Anyone we talk to who has worked in this space is very clear that the vast majority of issues will be resolved through mediated outcomes, with the help of the approved agency.

The next level of severity then is if that does not work, and only if a complaint has been made to the approved agency and the approved agency has had time to work through it and has tried to resolve the complaint in a mediated way, there is the application to the court for civil orders. Civil orders are when, in spite of the best efforts of the parties involved, the content hosts, and the approved agency, a resolution cannot be reached. An approved agency cannot order anything, and that is appropriate for an agency of that nature, but the court will have the ability to use a civil order to seek the material’s removal where that is appropriate. And that is critical—that is why it has to go to the court, because we are dealing with constraints on how people communicate. For all of the scare stories that go around about some trivial little thing that someone gets miffed at, well, the trivial little things that someone gets miffed at are not going to reach the standard of the sort of breach of the communication principle that is going to warrant the court making a civil order taking it down. So I think that has to be borne in mind.

At the most serious level of the framework, there is a criminal offence, and, as I have said, I do not make any apology for the fact that it is there. I do not accept, first of all, that it is inconsistent with what is happening internationally. We know, actually, that Australia has had an equivalent offence for more than 10 years, and that has been operating well for it, and it does not need to replicate it because it already has it. We know that the UK, for example, has also just passed a new offence to deal with revenge porn. It had some offences already, and its offences were not crafted broadly enough to deal with revenge porn, so it has also just legislated to create a criminal offence dealing with those sorts of matters. So I certainly do not accept that it is moving in a direction that is inconsistent with international norms.

The other point that I wanted to address is this fallacy that the bill will criminalise children. First of all, children—being those under 14 in our law—are not criminally liable under this offence in any way, shape, or form. No child under 14 can be criminalised for this offence. Young people, those between 14 and 16, are able to be prosecuted under this law if it meets those most serious tests, but—and this is a very important but—any young person who is caught up through this would go through our Youth Court processes, and that is a significant difference. It is not a case of going off to court in handcuffs and being arrested.

Our Youth Court processes, first of all, actually have a very well-established and incredibly well-respected process for dealing with young people through family group conferences and restorative-type practices, to ensure that they are not charged, if that can be at all avoided. If a better resolution can be found, that is always sought, and if they do need to go through to a court hearing, then the Youth Courts are very well-designed to ensure that they get that balance right between a young person having to take responsibility and accountability for their actions and having to make some sort of retribution or make an apology, as is appropriate to the victim. The Youth Courts are very, very well versed, and I have total confidence in their being able to properly handle any young person who comes before them in that matter.

Can I just talk briefly about some of the other issues in the Supplementary Order Paper that have been referenced by a couple of speakers. I want to acknowledge and thank Tracey Martin from New Zealand First, who has worked very constructively with us around the penalties that relate to that offence provision to ensure that it is very clear that there is an infringement fine option available, which was sort of there by operation of law, but I think Ms Martin made a good point that it is much better to make it very clear and specific that as well as the imprisonment option, a fine option is absolutely appropriate in many cases, and we have now explicitly provided for that. I think we have got those levels about right, so that where it is absolutely necessary that the level of the fine can be set at a high enough severity, it is there, but, equally, this provision allows the court full discretion to go with a lower level of fine when that is appropriate.

The other change, again, is really a clarification, but I think a very useful one, around the safe harbour provisions. There was concern expressed from some quarters that in fact the safe harbour provision—which I want to acknowledge the select committee for because I know it worked very hard to make sure it had that balance right between giving the poster of the information enough time to say: “Well, actually, no, there’s nothing wrong with that. I should be allowed to communicate in that way.”, and, equally, not leaving it so long that revictimisation occurs. The select committee settled on 48 hours being the appropriate period of time, and I certainly did not want to interfere with that because I think it went through a very good, robust process. But we did want to make it absolutely explicit that there was nothing in that that in any way prevented any content host acting under their own terms and conditions, or their own views of what was appropriate for them as a content host, to either take the information down immediately—if that was what they would do today if someone complained—if they thought that was appropriate, or, equally, not to take it down at all. So if someone complains on the very trivial basis of saying: “Well, someone’s put up a photo of me and I’ve got my eyes shut, and I don’t like it.”—who knows—and there is some triviality, it is absolutely open to the content host to say: “Well, look, I’m not taking any action on that. That’s a nonsense.”, as they would now.

So I think it is important that the bill is absolutely clear that they have the option to act immediately and remove the post, and that they have the option to take no action if that is appropriate. But if they want to follow the safe harbour provision in the bill, then that is very clearly set out, and, as I have said, I think that is a robust position in terms of where the select committee has got to.

So in respect of the changes in the bill, you will notice there are a number of really minor drafting changes that I do not think the Committee will concern itself with greatly. But I think the bill has been improved as a result of that interaction. Again, can I thank not only the members of this House but members of the internet community, who have certainly engaged with me and raised some issues that I thought were valid. We did not agree on every issue, but certainly where they raised points around workability and clarity, we were very anxious to get that right. I think the bill is better for it as a result, and I am certainly looking forward to this bill passing and becoming law so that we can say to New Zealanders that they do have an avenue available to them for real, effective remedy when they are unfairly attacked, demonised, and victimised on the internet in a way that causes serious harm. That is not currently the case. To suggest to a young person that they can go off and get an injunction or a defamation remedy is simply a nonsense. This is real, practical assistance, and I am looking forward to it passing.

Kia ora, Mr Chair. Can I thank the Minister for the call. Can I also acknowledge that New Zealand First not only opposed the bill at its second reading but made an attempt to have the bill sent back to the Justice and Electoral Committee because we had such serious concerns around the criminality aspect of this bill. Can I make a statement now: New Zealand First will be supporting this bill through this Committee stage. We will be supporting the Minister’s Supplementary Order Paper 91. We believe the Minister has been constructive. She has addressed our concerns, and we believe that the bill now does what its purpose was, as is set out in it.

We will not be supporting the amendment by Clare Curran, nor will we be supporting Supplementary Order Paper No 93 by Mr Seymour. Part of the reason for New Zealand First taking the unusual step of attempting to have the bill sent back to the select committee was to discuss the very point that Mr Seymour has in his Supplementary Order Paper. So that, we would suggest, was his moment to support it, and since then a constructive relationship has been created between the Minister and me, and that issue has now been addressed, so we are now comfortable.

The purpose in Part 1, which speaks to the purpose—let us just go through it. It seeks to “mitigate harm caused to individuals by digital communications” and to provide victims of harmful digital communication with a quick and effective means of redress. It is about being quick and effective.

A bullying report has just come out. With regard to cyber-bullying, over 31 percent of school students who took part in this survey agreed that cyber-bullying was a problem at their school. Girls were more likely to say that cyber-bullying was a problem—34 percent of all girls who answered said so, and 26 percent of boys. Cyber-bullying, particularly, is not just for our younger people but it is an area that all those of us who are parents hold a particular concern about. It is an invisible threat. It is very difficult for an individual on their own, particularly a young person, to find and deal with the invisible person attacking them. Therefore, this House must create a system they can be confident they can go to in order to seek assistance to stop this attack. I believe, and New Zealand First believes, that the approved agency is an enlightened approach, providing a trusted organisation—and the word “trust” is going to have to be earned, but we have to start somewhere.

The approved agency should provide that trusted organisation that a young person, their family, and their school can ring up instantly and say: “This has happened. How can we deal with it?”. The approved agency—and I went through this again since the second reading; I’ve sought more information from NetSafe and other organisations about how the approved agency would work, and now feel very comfortable that the first port of call would be for the individual, schools, or families to contact the approved agency—will assess the threat to the individual. Every person who will ring it, we must assume, will ring because they believe that they are being threatened. We cannot start from an assumption that they are just malicious or vexatious. We must start from an assumption that they are, actually, truly seeking help because they need some.

When we start from that point, then they go to the approved agency. The approved agency will have a look at it. If necessary, the approved agency can talk to the school, the victim, or the family, and say: “Really? Have a look at this. Perhaps there are some things you could do.” Or it could then go, through the mechanisms in the bill, to the poster—I am not going to call them the perpetrator, at the lowest level that we are talking about—and say: “Hey, somebody’s actually got upset about this. You may or may not think it is upsetting to you, but what are the chances of your taking it down?”. That is the absolutely lowest level that we are talking about. The majority of people whom we are talking about here will take it down because their intention was not to harm anybody. Probably 90 percent of what goes up there that hurts somebody—a young person, particularly—is not meant to do that.

Now we need to talk about the other people, such as the older adult and the young schoolgirl here in New Zealand who had created a relationship through an online gaming situation. He had gained intimate photos of that young person, and this older male then began to blackmail this young woman, asking for more intimate information from her. He threatened her family; he threatened her school. He went in and hacked into her school and brought down her school site.

Right now, and with all due respect—I give absolute respect, and I believe everybody in this Committee wants to deal with this issue—with regard to starting with education and waiting, schools have been educating. We constantly educate around bullying and around how you should treat other people. The reality is that we have a bit of an epidemic in our school system at the moment, with at least one-third of our students answering that they are being affected by cyber-bullying. How can we say that this is wrong and that people should not be doing it if there are no consequences when they do it? That is the purpose of the consequence.

Certainly, I was unhappy and uncomfortable with the concept of criminality for our young people. Quite clearly now, as the Minister has said, we have outlined a process by which there can be fines applied at the extreme end of this process and after the agency can do no more—after the individual has sought assistance and has not got the outcome they wanted. That stick is required. With every carrot there must be a stick. There must be a consequence for deliberately going out of one’s way to harm another person. There must be, otherwise everything else is a farce.

So we hope that this is the answer for our families. We hope that this is the answer for our students. It is new. We are going to have to watch it. The Minister is certainly going to have to make sure that the approved agency is appropriately resourced and has all the materials and the expert knowledge that it needs to be truly, truly effective. But we have to do something. I take on board that this may have possibly gone through the select committee faster than some may have liked. I also take on board, and mentioned previously, that due to Roast Busters there was some emotive language and that there was certainly an emotive environment around this.

We have seen some disgusting displays of behaviour using the invisibility of the internet. I also acknowledge that when I was at NetSafe some people had an opinion that we should let the internet have at it, that the politicians should stand out of the way, and that we should come and pick up the pieces afterwards. We would argue that we already have pieces. We already have a large group of young women against whom, supposedly, a crime has not been committed and who, therefore, cannot access any support services other than through special provision by the police because there was no legislation that covered them. We must pass legislation that those young women could have at least have gone to very quickly—instantly—and, hopefully, had something done about their situation in the first instance. But when we have the arrogance of some of the people committing these crimes against other citizens, we must have some way that they will be punished. There is no alternative. Kia ora.

Can I thank other members of this Committee for their contribution today, and I do accept that everyone is trying to do the right thing here. I have two areas that I would like to traverse, if the Minister Amy Adams would be so good as to reply to them. The first is, are we not at risk here of creating a defence for the intermediaries who currently face legal risk if they publish defamatory content online in respect of someone? Do they currently face a legal risk that this safe harbour provision removes?

Let us say some of the people who make money out of the activities that are allied to the online forums that they are publishing—and an example, I am told by Clare Curran, is TradeMe. TradeMe has an online forum, and the reason that it does that is it attracts people to its trading site. It is one of the services that it gives through the TradeMe site, and it makes many millions of dollars every year through TradeMe. At the moment, if it publishes or allows to be published on its site things that are horribly insulting of people and that may be untrue, I think its concern is that it faces legal risk. Well, actually, that is not a bad incentive for it to keep its site clean and free of this sort of bullying.

Are we in danger, in terms of this safe harbour we are creating, of actually removing the legal risk that encourages those intermediaries to be responsible at the moment? So that is my first question. If that is the case, I think we should send this one back to the drawing board because I am not sure we should be letting off all of the people who are making money out of this. The people who sell advertising services or services through these websites are the people who actually have the most ability to control what is on their site. I cannot control it; other members of this Committee cannot control it, so I wonder whether we are actually making an in-principle mistake in respect of that matter. That is the first issue that I would like the Minister to address, because if that is the case, then the safe harbour provision could be making things worse rather than better because it is avoiding legal risk that currently exists.

I am not yet convinced that in the Western World we have actually got this quite right. You know, we are moving into a new system in the world where the publishers of most content were reputable media that had editorial oversight and some standards from within. If we are moving away from that because of the changed revenue model for the media, why should we be enabling people in this new environment to have less risk than the old publishers of content through newspapers did? Those old publishers of content have lost their revenue to these new intermediaries like Facebook, Google, and TradeMe. Why is it that the people who pick up the revenue from these new sources of advertising and new commercial models do not face some of the old legal risks that used to control content and the way in which these things were previously published through the media?

The second point relates to the criminal provisions in clause 19 of the bill. Clause 19 is a lot, lot wider than the instance that the Minister gave in respect of the United Kingdom when she said that revenge porn had been criminalised in the United Kingdom. I can understand why that would be the case, but this goes a lot further than that. This applies to any digital communication that causes serious emotional harm. It does not apply to just video clips; it could be an insult that someone finds offensive and, to them, causes them harm. That seems to me to be a very broad criminal provision, and I am again not convinced that we should be so quick to criminalise what could infringe free speech.

You will have heard from my earlier contribution that I think there should be responsibility on the part of people who publish comments. If they say defamatory things—and the sorts of insulting things that we have heard of are generally defamatory—or if they publish things that are too personal, like videos and things that were taken in a personal or private space, then those things ought not to be allowed. We need to have, certainly, civil remedies in respect of that and, in some instances at the most serious end of the spectrum, as they are doing in the United Kingdom in respect of revenge porn, I can understand why you might want to criminalise in respect of that narrow subset of insulting communications. But this goes a lot further.

Clause 19(1)—the drafting of it—says that “A person commits an offence if—(a) the person posts a digital communication”—which can include an email, so it could be just an email post on a website—“with the intention that it cause harm to a victim;”. Well, most insulting things, I think, generally are intended to cause harm. “Harm” is defined as being serious emotional harm, but, you know, that is pretty subjective.

I would have thought that at the moment some of the things that are said in respect of politicians would be seen by politicians as causing them serious emotional harm. If there have been allegations made of corruption or inappropriate dealings or conflicts of interest that Ministers might have by putting their personal interests in conflict with their ministerial duties, posting that communication would cause harm to an ordinary person in the position of the victim, and the posting does cause harm. So you could have something that is well-intentioned on the part of someone who thought that they had uncovered something that is a terribly corrupt practice on the part of a politician, for example. You could post that, and you would think that in that situation you would have protections set out in the law that would apply to fair comment in respect of existing forms of communication.

This highlights one of the concerns that was raised in the minority report by the Labour Party. Why it is that we are having a special form of legislation for only digital forms of communication, rather than more generally? This highlights the point that we may not be protecting through this criminalisation provision rights of freedom of expression.

Again, I make the point that given that we can have decreasing reliance on the traditional forms of media because their revenue model has collapsed and we have got these new forms of media, this is the flip side of what I said in my earlier comments in respect of some of the internet service provider liability. We actually might be going here and creating offences on the part of people who think that they are making fair comments in respect of things that are issues of proper public concern. My concern about that is highlighted by clause 19(2), which says: “In determining whether a post would cause harm, the court may take into account [the following circumstances]”—it does not have to; it is just “may”. Then one of the things that it may take into account, but does not have to, is “whether the digital communication is true or false:”. So what we are saying there is that, actually, a digital communication might be true—it might be true—and if it causes serious emotional harm, the court could still find that it is something that is in breach of this law. I think that looks like it is bad law.

So the Labour Party will be supporting the amendment here of the ACT member, David Seymour, to delete clause 19 because that clause needs to be looked at properly. There is no reference to the New Zealand Bill of Rights Act. We do not know whether this clause overrides the New Zealand Bill of Rights Act. It probably does. It is more specific legislation and it is later in time, so it may well be that this overrides the provisions in the New Zealand Bill of Rights Act, and I do not like that.

So I would appreciate the Minister’s comments in respect of the first issue and I would also like her to explain why we cannot actually take a leaf out of the UK book and be very careful to limit the criminal penalties to specifics rather than generalities. We could limit it to private or indecent videos. You know, I would have no problem with those being criminalised.

I do accept that there are problems with cyber-bullying. I suspect this bill is not going to fix it because, of course, by the time you have gone through this safe harbour provision, the offending thing, if it is gossip around a school, will have been on a hundred different Facebook pages and it will be out there. So this will be an ineffective piece of legislation, but none the less we are inappropriately, I suspect, constraining rights of free speech in a way that we have not thought through properly.

It is interesting that the Justice and Electoral Committee report does not actually deal with either any of these issues properly—neither of them. It just touches upon them very lightly, and I do not think it shows an in-depth consideration of what I think are difficult and important issues.

I am pleased to take a call on this—to the extent that my voice will allow me to. This bill has caused nervousness and some concern from day one, effectively. I think the Justice and Electoral Committee did actually do quite a good job in remedying some of the concerns and the issues. Clearly, they still remain. It is true that, to some extent, the bill does break new ground, but it is ground that I think we need to break because there is a problem. This is a proposed solution. We can be almost confident it will be imperfect over time, but I do think it is a sufficiently robust piece of legislation to advance through this process and, ultimately, to become an Act.

I just recall that one of the first major conversations at the select committee was that the bill, as it was first drafted, was very much about bottom-of-the-cliff stuff. It appeared to focus very much on creating an agency, creating penalties, and indeed creating criminal offences around cyber-bullying and online content and the like. So one of the first conversations—indeed, one of the first substantive amendments we made—was to the purpose of the bill, where the words “deter”, “prevent”, “mitigate harm” were inserted. I do not now recall the original wording but, clearly, it is a major function of the bill to ensure that there is an educative process that is carried through. Part—in fact, I would say a substantive part—of the success or otherwise of the legislation as it emerges will be a willingness to invest significant resources into the approved agency and, indeed, to support other organisations that might want to contribute to that educative function.

We do want people to be aware, first, that the requirements of the bill are such that one is skating on very thin ice if people seek to go online and cause harm to others. But, ultimately, prevention is the best cure, as we know—excuse the obvious and much-hackneyed phrase—and I think the insertion into the bill of a clear steer, a direction, that there should be educative, preventive mechanisms supports that. I do think it will be a responsibility of this Government and of successive Governments to invest sufficiently into resourcing the capacity of the various agencies with an interest, to make sure that does actually happen.

There has been some obvious concern about clause 19—indeed, a proposition that we should delete that. I just reference Supplementary Order Paper 93. We can agree with half of that, actually—the second part of that Supplementary Order Paper. I think there is something to be said for that. A couple, in a sort of rush of blood to the head or whatever else, might decide to record some of their quiet moments together. When the relationship goes pear-shaped, one or the other of them might choose to seek to embarrass that person. I think that part of the Supplementary Order Paper is certainly valid, and that is something we could support. But the deletion of clause 19, to me, would almost gut the bill. It would eliminate a core function of it. Mr Seymour is nodding his head. It is a shame we did not have this conversation at the select committee, because I do not recall any proposition there that clause 19 should be omitted. For that reason we cannot support Mr Seymour’s Supplementary Order Paper. If he were to bring another one that had just that second part we could probably see our way clear to support that.

I think it is important, and the point has been made, of course, that harm is proven only when you prove intent that it would cause harm to this ordinary, reasonable person and that it has caused harm. By default, a lot of language in legislation is subjective language. There is really no way to get around that. My former area of expertise, the Resource Management Act, talked about intrinsic value, for example, which was extremely interesting. It talked about outstanding features of landscape—entirely subjective commentary—and over time a body of case law has emerged to put some substance, some flesh, around that. So I do not think that we need to be too overly concerned about the fact that there are obviously subjective elements in this legislation. The alternative, I think, is to endeavour to nail things down so tightly, to be so specific, that really the exercise would become very fraught.

I take Mr Parker’s point about “the court may take into account” as set out in clause 19(2). If a situation arises where somebody is facing charges, I would be very surprised if these issues that may be considered were overlooked, or if a court chose not to take cognisance, particularly, of the particular point he made of whether a statement is true or false. The fact that a statement is true does not prevent it from being harmful or malicious, but clearly a false statement would be much more obviously so. The “age and characteristics of the victim:”—we have heard a number of examples, and there was a proposition put on one of the current events television programmes at the weekend, using politicians as an exemplar. In fact, we are probably not particularly good examples of potential victims under this legislation. There is the expectation that we put ourselves forward and we are willing to accept a little bit more flak than the average person might. Not to say that we are above average—quite the opposite, on occasion—but I do think that the notion of age and characteristics is a key qualifier to all this.

The “extremity of the language”—clearly, if people go online and threaten to kill, to rape, to do serious harm to a person there is existing legislation that can deal with that. At the very, dare I say it, low level of offending, the sort of online bullying that might otherwise take place in a schoolyard—yes, there are means to deal with that. The Police Association came through with what, to me, was quite a compelling submission. It highlighted the fact that there is a significant gap in the middle there. It is not high-order offending; it is not the everyday sort of low-level nuisance stuff. But there is a sufficient gap in there, according to the Police Association, to warrant a new piece of legislation. I think that is what this bill intends to be.

We are pleased to see in the Minister’s substantive Supplementary Order Paper 91 that the issue of discretion, if you like, for content hosters is just for the avoidance of doubt. It is made clear that if a host gets a complaint and chooses to immediately take down that content because it contravenes its terms and conditions or just its own corporate measure of good taste or whatever it might be, then it can do that. It would be a very perverse outcome of this bill if it actually delayed people who might otherwise have taken content down immediately. We know very well that the longer content sits online, the more potential harm and the more potential damage it can do. As I say, that is one change in the substantive Supplementary Order Paper that we do support, and it is responding to submissions made both during the course of the select committee deliberations and from some contact from interested parties after the select committee hearing.

I think I will leave it there for the moment, and simply say that we will continue to support this bill. It is not perfect, and we are certainly open to the ideas of trying to make it better. But for the moment we are supporting this legislation.

Any member of a House of Representatives has to balance the competing prerogatives of the people they specifically represent, their political party and its philosophy—

💬 Stuart Nash: The 1 percent you represent.

—thank you—and their own conscience. This is the first time that I have voted against a bill introduced by the National Government. It is because the people I directly represent generally believe that it is better to have these people over here, and those people over there, and by and large I would agree with their analysis. I am, after all, from Epsom myself. However, as somebody who benefits from a free society and a long, evolved common law tradition, I believe the right thing to do is to oppose the Harmful Digital Communications Bill and at the very least remove some of its most egregious features.

In time I predict that this legislation will come to be seen as a useful case study in bad lawmaking. It is the classic case. First, you have the dramatic events, to which people feel the need to respond. We have actually heard it tonight. Perhaps unwittingly they did not mean to come out, but it came out from some members. “We have to do something.” is the major premise; “This is something.” is the minor premise. The conclusion is that passing this law must be the right thing to do. You have the hand-wringing, and then you have the legislation, and, finally, you end up in a very different place from where you started. It might also be an insight into why our profession, if it can be called that, slipped in only just in front of journalists when the public was asked very recently to rank the professions in a survey of public trust. That is because we tend to overpromise. The promise implicit in this bill is that we in this House can set up an approved agency that will actually solve one of the biggest problems that we have. The rhetoric is that if you do not support the bill, then you are in favour of the most awful things that occur.

Well, I see that Mr Bishop and I both quoted Milton Friedman in our maiden speeches, saying that policy should be judged not by its intentions, but by its outcomes. The outcomes of this legislation, were it to be passed in its present form, might be compared with the Star Chamber. History does not repeat, but sometimes it rhymes. This is not the first time in our constitutional history that our society has attempted to solve a problem by giving easy and convenient access to justice without the safeguards and restraints that have evolved elsewhere in common law over a long period of time. Of course, if you know your history, you will know that what happened was that the Star Chamber became a bully pulpit, which was used by the politicians of the day to cow their opponents in fear and submission. Although, fortunately, we are no longer in medieval England, the same principal deficiencies exist in this piece of legislation.

I would direct members to the communication principles, which would be appropriate if we were about to embark on a school camp, but not for running a country. They tell us that it is wrong to disclose sensitive personal facts about another individual, for example. They say you should not be indecent or obscene, and that you should not harass another individual. In their totality it requires only one of them to be breached for you to be reported. They mean that practically any digital communication could be subject to the full force of this approved authority.

Of course the rhetoric from the proponents of the bill is always similar to the epithet “If you’ve got nothing to hide, then you’ve got nothing to fear”. They say: “Oh, don’t you worry. If you’re being good, then this will not apply to you.” Where you end up, just like with the Star Chamber, is with arbitrarily enforced bad law that can be used sometimes for good and sometimes for bad. It just depends who happens to be enforcing the law at any particular time. Of course you might say: “Well, this is all worthwhile if only we believed that it was truly going to reduce harm and suffering.” If you believed that it was going to be effective, then you might be willing to trade away some of the rights and freedoms that we have been lucky to inherit over a long period of time. But you only have to begin with a few of the simple practicalities.

We have heard from members already about the difficulty of 48 hours being far too long on the internet. It reminds me of a quote from Top Gun: “BS 10 minutes! This thing will be over in 2 minutes.”

💬 Stuart Nash: Is that from your girlfriend?

Keep it clean, Mr Nash. The fact of the matter is the time frames and the evolution of viral trends on the internet, about which we heard from the first member speaking, are far quicker than intervention can take place. The pace of development of new websites and new fora is so rapid that it is unlikely that we will be able to enforce what Tracey Martin referred to as the invisible threats from the internet.

Take, for example, the website Ask.fm, where many young people voluntarily put themselves out almost to be harassed, some would say. I have asked some young people: “Why on earth do you do this?”, and they said: “Well, actually, we want to go there. We want to address concerns. We want to argue.” And, of course, many of the most tormentuous questions they face come from invisible questioners—people who, as a practical matter, cannot be identified. So there you have a whole range of activity that this bill would have no effect on mitigating whatsoever, and yet, none the less, it is a very real concern to young people. Interestingly enough—and this is another deficiency of this policy project we are going on—Ask.fm has since introduced quite stringent safety and monitoring regulations voluntarily because, ultimately, it is not in its best interests to have people coming to its website and having bad experiences. So, again, we have underestimated the speed with which hosts will actually seek to improve the experiences that people have on their websites.

But then you come to the question of criminalisation. It is said that we have to be in favour of this bill because we have to do something for the children. Well, the fact of the matter is that criminal sanctions are effective only if you are seriously prepared to use them against the poster, as we have heard, or the perpetrator. Nobody in this House, I believe, is seriously willing to criminalise children, but that would be the proposition if criminalisation was supposed to be an effective sanction against bullying of children.

So I oppose Supplementary Order Paper 91 in part for procedural reasons. It is in some ways an improvement, although, as Mr Parker pointed out, it is also a step backward for every step forward. I oppose this Supplementary Order Paper for procedural reasons because, as members will know, I have put up another Supplementary Order Paper, Supplementary Order Paper 93, which removes the criminalisation element. You can still have your approved agency and you can still have your resolution, but it removes the criminalisation and applies the criminal law to specific testable, discoverable offences. If you take an intimate visual recording with or without the consent of the person in the recording, and if you perpetrate this and then propagate it around the internet without their consent—perhaps without their knowledge—that is a crime. I do not think anybody in this Committee would say that that should not be a crime.

If we wish to address a certain mischief, let us address that mischief. If we are prepared to do that, you never know, we might find ourselves making better law. Indeed, we might even improve the impression of our own profession that the public has if, rather than overpromising in knee-jerk reactions to particularly high-profile scandals, we actually set about to make proportional responses to problems that really exist out there in our community and that the Government and its agencies have an opportunity to actually fix while respecting our common law traditions.

It is an honour to take a call on the Harmful Digital Communications Bill. Speaking after the honourable member David Seymour, I have to say that though we are in a coalition, or partnership, every partnership sometimes has its rocky roads, and this may just be one of those. In hearing that speech, it had the smell of paper flowers from the policy garden of the ACT Party. But in the streets, the reality of what happens out there in our communities—I would like to remind the member that, actually, this bill has been a thorough process for quite some time. It has been well researched in regard to the intent and to the need.

I think that the Law Commission was really clear that one in 10 New Zealanders is impacted by cyber-bullying and harmful digital communications. This legislation is nothing new—I know that—but it improves the intent of what we are trying to do. Through the submissions, it was really clear that the purpose of the bill to deter, prevent, and mitigate was taken on board. Therefore, Supplementary Order Paper 91 by the Minister Amy Adams clearly indicates that we have heard, we have listened, and we have ensured that we have amended the law so it does deter, prevent, and mitigate.

The other part that I think is really important in the bill is that it also provides victims with a quick and efficient means of redress, which was not in the legislation previously. So though the member talked about bad law, I think that this is actually good law. It is a good start. It is actually making the ends that we think are important. So while we talk about the policy, and we can dream about what the intent could be, we—

💬 David Seymour: Principles and things like that, yes. Yeah.

Absolutely, but principles have practice to them, and with this legislation we think that that is absolutely important. Here are some of the areas of practice that I think are important. The member David Parker talked about the safe harbour clause that is here: clause 20. I think that what is important in the safe harbour clause—and we heard about striking a balance between this and, in a sense, providing provisions for freedom of speech. We think that that is important. The clause is allowing the opportunity for those who are hosts to remove the content and to inform those who actually have had content that is offensive. We have made sure that the balance is there by inserting a new clause to require the online content host to notify the author as soon as possible, and within 48 hours of receiving a notice of complaint. We have inserted a new clause to give the author 48 hours to respond to the online content host with a counter-notice, as well. We did hear submissions, Mr Seymour, when they came through, and we talked about the importance of having the provision that is there, as well. If the author agreed or did not respond, the content would have to be removed or public access to it would be disabled, as well.

The other thing that is important is the civil enforcement regime. A new civil enforcement regime was one of the Law Commission’s key recommendations in its report. We think that that is important. National agrees that when it comes to digital communications, we need to have better legal options for addressing complaints and taking actions. Court cases can take some time, and often the damage has already been done. We know that speed to redress those issues becomes critically important, as well. Previously, people have been hesitant to lay a formal complaint with the police, but with this ability we will able to investigate and prosecute such cases, as well. Victims, who are most important in this case, in this bill, may not have the money or the desire to make a civil law claim such as suing someone for defamation. This legislation provides the ability to better provide for them, as well.

The approved agency is also, I think, a provision that is quite critically important. The approved agency will receive complaints regarding harmful digital communications, and the agency can then decide whether there are grounds to proceed with an investigation. For example, it would not investigate a trivial, frivolous, or vexatious complaint—and we know that that would take up time—but it would advise people on steps they can take to resolve a problem. We think that it is really important to get that information out there so that, again, victims have the ability to be able to respond appropriately. Where the approved agency investigates substantial claims, it will attempt to reach settlements between the complainant and the person responsible, as well. The agency will liaise with web hosts, internet service providers, and other internet intermediaries to request them to take down harmful communications, because many corporations operate outside of New Zealand. It will be important for the agency to establish good relationships and protocols to work with these companies, as well.

We believe that at the moment the provisions that are in this bill are a step in the right direction. I know that Mr Seymour may not think so. The bill does address the intent and the harm that has been caused, both in the safe harbour clause that is there and also by having an approved agency address this harm. Thank you.

I—

💬 David Seymour: You’ve got 2 minutes.

2 minutes. I find myself in a rare moment of actually agreeing with something the ACT leader, Mr Seymour, mentioned.

💬 Chris Bishop: Oh, be honest. You agree more than that.

Oh, sorry, Mr Bishop, I thought you were going to say something sensible for a minute there. What I want to talk about is these communication principles in clause 6(1). I must admit that when I look through legislation, subjective terminology tends to concern me, because when you have subjective terminology in legislation it means that it is often open to the law—well, obviously, open to the law courts—to determine what certain words mean but it is also open to the people enforcing the law. Usually, in this case, it is police officers who will be the first port of call, when they have an incident or a complaint about certain communications. What I would like to do is just work through some of these communication principles and just point out how subjective these actually are, to the point where I suspect that the police are going to look at this and say: “Goodness me, we have some real problems here.” I will also bring in an example I had very recently.

Let us start at principle 1: “A digital communication should not disclose sensitive personal facts about another individual.” What actually constitutes sensitive personal facts? Is it that someone is single, or is it that they are married, or that they have diabetes? Or is it that they take offence?

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (Lindsay Tisch): Members, the Committee is resumed. Before the dinner break, the Committee was considering the Harmful Digital Communications Bill. The question was that Part 1 stand part. Stuart Nash had the call and he has 3 minutes and 27 seconds remaining, if he wishes.

Yes, please, Mr Chair, I do wish.

💬 David Shearer: Mercifully short!

Thank you very much, Mr Shearer. What I was talking about is that it really worries me when I see subjective wording in legislation. This bill has a whole lot of subjective wording that I fear will put those who are in charge of enforcing it at the first stage in a real bind. Whom I am talking about here are the police, I suppose. If someone goes to the police and says: “Under these communication principles, I find someone has disclosed sensitive information about me.”, what is the definition of sensitive information? This is in principle 1, and we could go through all of these, depending on how much time I have got. Principle 1—this is in clause 6—states that “A digital communication should not disclose sensitive personal facts about another individual.” What is a sensitive personal fact? What denotes “sensitive”? Is it the fact that they are single, or they are married, or they have diabetes? I am not too sure what constitutes “sensitive”. I suppose what is sensitive to me might not be sensitive to Mr Shearer. Who knows?

Principle 2 states that “A digital communication should not be threatening, intimidating, or menacing.” They are three extremely subjective terms: threatening, intimidating, or menacing.

💬 Rino Tirikatene: Menacing.

If Rino Tirikatene stands up, because he is about 6 foot 6, some people may find him threatening or menacing; others may just find him very friendly. But what is the definition of that, and how is this going to be policed and enforced?

Principle 3 states that “A digital communication should not be grossly offensive to a reasonable person …”. Again, we have “offensive”, “grossly offensive”, and “a reasonable person”. You know, there was a time in the United States in the late 19th century when they used to put curtains on pianos in case people got offended when they saw the legs of pianos.

💬 Peeni Henare: Oh!

I know. That is true—it is true. What constitutes “grossly offensive” changes with the times. [Interruption] No, no, we are down here, Mr Chair. I am very much talking about the bill.

Principle 4 states: “A digital communication should not be indecent or obscene.” Again, “indecent or obscene” are subjective terms. You know, what are the police going to do when they get a call saying: “Someone has sent me an indecent email.”?

Let me give you an example. I had a constituent in my office who brought in a message that someone had written on her 14-year-old daughter’s Facebook page. I think by any stretch of the imagination it was indecent and it was obscene, and I actually found it grossly offensive. This was an older man trying to groom—from all accounts, if you read the email—a 14-year-old girl. Well, that mother had gone to the police and the police had said: “We can’t do anything. We’re just going to give her a warning.” Again, if you had gone to another police station, then the police might have said: “Well, we’ve got to talk to this guy. We’ve got to bring him in.”, but these terms are so subjective that it really is up to how they are defined by the person who is dealing with the first call.

Principle 5 states that “A digital communication should not be used to harass an individual.” What does that mean—“should not be used to harass an individual”? Goodness me! As Mr Seymour said, and I agree with him, this is the sort of thing you would say to a year 7 class on the way to camp.

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.

Can I try to pick up where Tracey Martin left off because I think she used a very good example of postings that are made online that I do not think anyone in this House would like to see. The devil in the detail in this bill—for us on this side of the Chamber, although we are going to be supportive of this bill at this stage—is that it does not quite meet up with the responsiveness that we would like to see in the bill.

Yes, Ms Martin, the complainant in this case could go to the approved agency and make a complaint, and if the approved agency thought that complaint was valid, it then has a process where that complaint is sent off to the author or the person who posted it and there is a 48-hour potential window for the author to respond. If the author then responds at the very last minute, they then have 48 hours to put a substantive response together. So we have a situation where it would be 4 days, potentially, before that post came down. That, on our side of the equation, is not responsive enough in a digital world where things go up damn fast. At the moment we do not see quick responses to posts that no one wants to see there.

So to have a post up there for, potentially, 4 days, as this legislation allows under the safe harbour measures, is not fast enough, we think. It is something that we have raised at various stages, including during the select committee process I must add, to make this legislation as good as it can be, as responsive as it can be, and, therefore, as effective as it can be.

As people in this Committee know, 4 days was a long time before the internet was around, so to have a 4-day window for these damaging posts—they are obviously causing harm, because the legislation says that that needs to be triggered before the complaint can be considered—is a hell of a long time. It is a very long time under this legislation, and we would like to see—and maybe the Minister in the chair, Jo Goodhew, or the Minister responsible for the bill may be able to answer this—why the Government did not consider something that could be eligible for almost instant take-down, as soon as the approved agency meets those tests that Ms Martin spoke of before, to make sure that less harm is done, or that the least amount of harm is done, to someone who makes a complaint. It is harmful if it is up for an hour, and it gets increasingly worse if it is up for 4 days. In the digital world the author can put it up and take it down, but if someone takes a screenshot, which is easy to do, that can be spread on and on and on.

I understand that this is a difficult thing to try to tackle, but if we are not being as responsive as we possibly can through the approved agency in this bill, then although we do, reluctantly, support this legislation, we believe that that is one of the areas where strong opposition should be put up to make sure this piece of legislation can be much, much better. And we do think this legislation could be much, much better. It is interesting to look at the process and at the way this has been presented to this Parliament. I have got Supplementary Order Paper 91 in my hands. It is roughly 22 pages, and most of the changes are to Part 1. The bill is 22 pages, and I think that tells an interesting story about this process not really being the ideal process to make sure we are getting the legislation right.

The Government should have engaged more with parties right around this House. It had the opportunity—and Clare Curran has made this point—to engage more with communities, especially young people, to make sure that we get the legislation right. We would argue that although something needs to be done in this area, the legislation is not as precise as it could have been.

I do want to make the point that there is Supplementary Order Paper 93, in the name of the leader of the ACT Party, David Seymour, to delete clause 19 in Part 1. He thinks—and David Parker made the point—that clause 19 is a bit too vague, a bit too broad, and could catch as illegal behaviour what some people think would be reasonable behaviour. The Supplementary Order Paper put before the Committee by Mr Seymour is much more precise, and it will catch some behaviour that we all would think abhorrent. It is not behaviour that is out of the realm of thinking. I can think of a couple of instances in the last couple of weeks where this has been relevant. I would like to thank David Seymour for putting that forward, because we think this is the kind of measure that could have happened if the process had been much better.

There are some pieces of the legislation that we do think are reasonable. I think that being able to use internet service providers to identify people who are anonymous—I think that is in clause 17; I am trying to get a nod from Clare Curran—sounds about right. A lot of the harmful comments that are being are made by people who use pseudonyms. They are not man, or woman, enough to use their own names.

💬 Peeni Henare: Keyboard warriors.

Keyboard warriors, as my colleague Peeni Henare says. We are going to be able to use this piece of legislation to say to internet service providers: “Let’s figure out who this anonymous person is.” so that they can actually front up and hold them accountable under this process. I think that is a good thing. One of the things that frustrates me about social media—Facebook more often than Twitter—is that you get these people who do not use their real names, and under these pseudonyms they are as tough as hell and they get away with murder. I think one of the things in this piece of legislation is that we can go and figure out who these people are.

I want to finish by saying that we believe this is a necessary area of law that needs to be addressed, but we are quite upset that the Government has chosen to use the process that it has taken. The process could have been much better. The Government has taken the chance to take a crack at Opposition parties through this process. It has not worked cooperatively and collaboratively, and I think we, as a Parliament and as a country, suffer because the legislation before us is not as good as it can be. In this age of social media and connectivity we owe it to people to make sure we get it right, and on this occasion, although we support the bill, we do not think it is as good as it could have been.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. Clearly, one of our key spokespeople on this bill still had issues to raise. Also, I am the Labour spokesperson on justice, and I have not taken a call on Part 1 at this stage.

This debate has been going for an hour and a half, and everyone who wanted a call prior to the dinner break has had a call. The Labour Party has had seven calls; the National Party has had four; ACT, two; New Zealand First, three; and the Green Party, two. I intend to put the question. The Committee can decide whether the debate continues or whether we move on.

Motion agreed to.

We now come to David Seymour’s amendment as set out in Supplementary Order Paper 93. This is out of order because it is inconsistent with a previous decision of the Committee.

The question was put that the following amendment in the name of Clare Curran be agreed to:

Insert after clause 19 the following new clause:

19A Young persons under 17

No person may be convicted of an offence under section 18 or 19 by reason of any act done or omitted by him or her when under the age of 17 years.

The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence does not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.