Harmful Digital Communications Bill

When we concluded on Thursday afternoon there was a bit of humour in the House. There were references to The Castle movie and all sorts of things going on, but this is, in fact, a very serious bill, and one that we do need to look at very seriously. To slightly recap just in my first few minutes what I said before we had to adjourn for the end of the parliamentary week, we were talking about the very bad impacts that there are at times, on young people in particular, through online bullying and through social media that result in all sorts of terrible things like truancy, at one end of the scale, right through to depression, self-harm, and suicide, at the more serious end of the scale. So it is very important that we have legislation in place to ensure that our young people in particular can be kept safe.

There have been some people who have been a little bit concerned at the imposition on freedom of speech. Certainly I heard some members—or one in particular—talking about this during the Committee of the whole House. I just want to remind that member, and anybody else who is concerned that this is an imposition on free speech, that freedom of speech is something that we cannot just take for granted. It is not something that simply gives us the right to say anything we want, whenever we want to, whatever the consequences of that speech.

I want to draw people’s attention to the principles in clause 6 of this bill, because freedom of speech should still not give somebody the right to communicate in a way that discloses “sensitive personal facts about an individual”. Freedom of speech should not mean that their digital communication should be able to be “threatening, intimidating, or menacing.”; nor should it be “grossly offensive to a reasonable person in the position of the affected individual.”; nor should that communication be “indecent or obscene.”; nor should that communication be “used to harass an individual.” Freedom of speech should not be able to be used simply to make a false allegation about somebody. Free speech should not “contain a matter that is published in breach of confidence.”, and it should not “incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.” Free speech should not “incite or encourage an individual to commit suicide.”, and neither should it “denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.”

Yes, we have got to have freedom of speech. Yes, we need to be free to be able to communicate, but the principles that are contained in this Act need to be absolutely upheld, and so I am very proud to be voting for this legislation as it goes through.

One of the other arguments I have heard as we have debated this at the various stages of the passage of the bill through the House has been that people are concerned that perhaps this is too heavy-handed in its approach. At the moment the only thing that is available to somebody is to take some sort of action through the District Court, which to me seems far more heavy-handed as an approach. This bill sets up an approved agency that will do what it needs to do to ensure that people are kept safe from harmful digital communication. For those who have said—and I have heard them speaking—that this is something that is too heavy-handed and we need to sit down and take a more softly softly approach, particularly where this is occurring with teenagers, I want to remind them of clause 8, in particular, and to look through what the functions of the approved agency are.

Clause 8(1) states that this approved agency will be set up “(a) to receive and assess complaints about harm caused to individuals by digital communications: (b) to investigate complaints:”—but here is the kicker—“(c) to use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints:”. That is the benefit of having an approved agency that has the ability to delegate its powers to others, as well. That will ensure that we have the measured response that is most appropriate whenever a complaint is laid.

Finally, I just want to talk about a particular role that has been identified within this Act, and that is the role of the “professional leader” in a place like a school. I reflect on my own time as a school guidance counsellor. At times young people would often feel like they had been bullied and they would want to, perhaps, do something about it, but then when the push came to shove they did not want to have to front that for themselves. I think what is critical is that we have this ability for a professional leader to act on behalf of victims and to be able to take this complaint forward to the agency, so that the young person who may be affected by this is not having to front up on their own, and, perhaps, feel victimised all over again by having to face up to something within a system. So this particular role of a professional leader in a school who is able to act on behalf of young people is absolutely crucial.

This is a good piece of legislation. This is a piece of legislation that is moving forward. It is showing that we are keeping up with the times and that we are wanting to keep our young people in particular free from bullying, and I commend it to the House. Thank you.

It is my pleasure to have an opportunity to use this third reading speech on behalf of Labour to rearticulate the difficult position that we, as an Opposition party, felt we were in when debating the Harmful Digital Communications Bill. We sometimes in this House talk about being wedged on issues, and what does that mean? Well, I think this bill is a reasonable example of that.

We have a situation where no one denies that cyber-bullying is very, very harmful. You know, we have had in the past the comparison as to the kind of bullying that happened perhaps in our childhood when things like notes, rumours, slanderous gossip were the kinds of things that were used as tools to hurt young people. Today what we have online is the equivalent of the old nasty note being passed in class now being broadcast for all to see, and we have to acknowledge that that has much wider ramifications that do need to be dealt with.

So, yes, there is total agreement that something needs to be done. The issue is what that thing is. The problem we have in this House is that when the Government puts up a proposal and says it is the answer to the problem we all agree on, if you then as an Opposition party say: “We’re not really sure that’s true.”, you end up being positioned as if you are not genuinely interested in dealing with the issue. That was part of the issue that Labour has faced with this bill. Yes, there are elements that we think we were worthy of discussion and debate from this House—there are elements that we could see some merit in—but there are other elements that were deeply worrying for us. So what do you do?

Well, we want to use this opportunity to highlight some of the issues that we do have and continue to have. On balance, our decision has been to vote in favour of the bill, but as a party we hope that this House will agree to revisit this legislation in 1 year’s time. If there has been a manifestation of any of the issues that have been raised, if the bill is not achieving what it set out to achieve, or if it is doing any of the harm we contest may happen, we would seek that this House be reasonable enough to come back and look at it again. That is our hope.

So let us go through some of the issues that we do think need to be revisited. The first concern we had is that the bill puts forward a new regime over and above some of our existing laws. We have harassment laws already. It was our contention that they could have been used to deal with some of these issues. But the bill puts in a new penalty regime that could potentially include imprisonment or fines. For some people that may be an appropriate response. We have seen some extreme behaviour along that line, which needs to be dealt with. But what about for children? When children are involved, is it the most appropriate response to criminalise them? You know, we are talking about kids as young as 14 here. It was our contention that that was not right. We wanted the bill to change so that we were considering only those considered adults in the law, which is 17 and above. The Government did not agree with that amendment, so that is one of the things we are deeply concerned about.

What would we have done as an alternative? We do think there are models within schools around restorative justice that many schools use, in place of expulsion and suspension regimes, that maybe would have been a thoughtful way to engage with this issue. We know, for instance, that the Post Primary Teachers Association in its latest magazine is talking about forces within schools aligning against bullying through movements like Pink Shirt Day, which is becoming much more widespread. Talking to the education sector about what we could do when children are involved would have been at least a good first step. So that is one of our first concerns.

Our second concern was whether or not the definition of “harm” in the bill was too broad. The bill basically set out that harm was “serious emotional distress”, but that is a very subjective measure, so the bill allows the approved agency that is meant to deal with the bulk of cases to determine for itself what “harm” might be. When you are dealing with something as serious as balancing freedom of speech with the issue of online bullying and cyber-based harm, our contention is that Parliament needs to play a greater role in determining where that line in the sand is. Freedom of speech must be jealously guarded by this House. Our concern is that this has been left wide open, and we still have concerns about the way that that might be interpreted and about whether the approved agency will have the resources and be equipped to deal with that significant issue. That is definitely one that Parliament must remain engaged in, because any threat to freedom of speech that goes beyond the tests that we put in place to make sure that freedom of speech does not become harm against others and harm against young people is the balance that we must continue to ensure we maintain.

As I say, we are also concerned that the proposed civil enforcement regime displaced the longstanding balance we already had in New Zealand law and replaced it with untested standards. So that was another concern.

Of course, there were opportunities for us to look at what overseas jurisdictions were doing. We are not the only Parliament tackling this issue. Australia has already tried, and so has the UK. In the UK we have seen horrific situations of cyber-bullying, where young people have taken their own lives. Its response has not been to legislate, but to use alternative methods. We really wanted to see those explored in more detail.

It was also our view that some of the provisions around having a safe harbour online were flawed. At the moment entities like Facebook and Google have their own policies—if something harmful is posted online, you have the ability to request that it be taken down. Some of those entities operate a function whereby they take down first, and check later. So they act immediately, in order to remove the potential harmful communication, and then decide whether or not that was the right course of action. So that can happen very, very quickly.

This bill, however, gives the ability to entities to remove potentially harmful digital communications no later than 48 hours. So, actually, we are broadening the window to make it a longer period of time than what might already be the practice of some of these entities. The harm of that is we know that in a viral digital age 48 hours is a very long time—it is a very long time—so we have the potential here that this legislation actually weakens what was happening as the status quo. We are very pleased, though, that the Minister of Justice did make some changes via a Supplementary Order Paper during the Committee stage to provide an opt-out from these provisions for online content hosts, so that they can use their own terms and conditions. We are grateful for that. That does provide some leeway around that, but it was an issue that we have raised consistently, and we need to monitor whether those time frames are going to be effective.

We also debated—I understand it was debated at the select committee—the issue around whether there needed to be exemptions for the media. I accept that in the digital age there is a very broad range of views as to what media is, and much debate as to whether or not bloggers should be included in that official turn of phrase, but what I am sure we can all agree on is that this bill—as much as there is satire out there around MPs reading out mean tweets, this bill is not about protecting members of Parliament. That is not what this bill is about. You are not going to see MPs using the law to stop people criticising them. Of course not—that would be a blatant abuse of the freedom of speech. Nor is it about stopping trolls that affect members of Parliament. That is not what the bill is about. But nor is it about stopping satire—nor should it be. That again would also be a blatant breach of freedom of speech.

So perhaps it would have been useful to embed in this law—to be clear—a public-interest defence around the media, so at least it existed in law and at least we sent the message to the legal fraternity that it is not our intention to protect ourselves with this legislation, but rather to prevent harm to some of the most vulnerable. Let the record instead state—let Hansard instead state—that that is not what this Parliament’s intention is. Rather, it is a very different group that we intend to protect.

On balance, as I say, we do want to prevent harm. We have massive reservations about whether this is the right way to do it, but on balance we have agreed to see where it takes us. But let us, at least, as a Parliament, be wise enough to accept that this is new territory and that it would be wise of us to keep a very watchful eye on the way that this legislation works.

That contribution by the member who has just resumed her seat, Jacinda Ardern, was a good and thoughtful contribution to what is a pretty serious subject, and it raised a couple of issues that have also been discussed quite widely during the passage of this bill—that is, the impingement on freedom of speech and the approach of this bill being, perhaps, too heavy-handed. I would argue that the structure of this bill caters for and ameliorates those concerns, and perhaps I will explain that a bit later as I go through it. Also, I think it is good to recollect that this bill came from a piece of work undertaken by the Law Commission, called The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age. So this bill has its foundation in some pretty serious work undertaken by the Law Commission. And it was brought to this House and to the attention of Parliament because of a number of very distressing and serious incidents that have happened, that are happening now, and that will continue to happen in cyberspace. Those incidents might manifest themselves as cyber-bullying. They might manifest themselves as inciting people to commit suicide or as just good old-fashioned bullying in the workplace—particularly, as has been noted a number of times while debating this bill, with regard to young people who are very vulnerable and very sensitive to people’s opinions and suggestions about them. We all know, and we all agree across this House, that it is time that this issue was addressed on behalf of young people.

The main provisions of this bill are to create a set of 10 communications principles. Those will guide the approved agency, which I will talk a bit more about in a minute, and also the courts, should that become necessary. For example, one of those principles might be that a communication should not be threatening, intimidating, or menacing. As I have mentioned, there will be a new civil enforcement regime created, which will be an approved agency. That approved agency will receive complaints and, where appropriate, undertake an investigation into those complaints. The approved agency will have the ability to respond very quickly. The previous speaker was quite right in saying that the digital space moves incredibly quickly. In effect, there is no news cycle any more, just as there is no delay in digital communications, because they are incredibly immediate and their dissemination can be huge—push a button and many, many people will now see a message that can never be unsent or undone. So, hopefully, the agency will be able to resolve complaints pretty quickly and directly, with the most serious of those complaints that are not able to be resolved to be referred to the District Court, which can then, in turn, issue take-down, and cease and desist notices. What the bill does is provide a legislative mechanism for people to provide for the taking down of damaging and harmful content from websites easily, quickly, and efficiently. It also clarifies the law regarding website hosts, and that is in the safe harbour provision that I will talk about in a minute.

This bill also makes it an offence to send messages and to put harmful posts online—for example, where they are offensive, obscene, indecent, menacing, or knowingly false. And, you know, those incidents are all too common, unfortunately. This bill provides for a maximum punishment of up to 2 years’ imprisonment, so it is pretty grunty stuff at the higher end. It will also create a new offence of incitement to commit suicide, even when a person does not attempt to take their own life. Again, that is a pretty grunty measure in this bill. Again, that new offence will be punishable by up to 3 years’ imprisonment. This bill also amends the Harassment Act, the Privacy Act, and the Human Rights Act to ensure that they are up to date for digital communications. This is such a fast-moving space that this bill is bringing some other pieces of legislation along with it, because, of course, in many cases now, existing pieces of legislation were written before cellphones and the internet were even imagined.

Going back to the civil enforcement regime, this was one of the key recommendations of the Law Commission. This Government agrees that when it comes to digital communication, we do need better legal options for addressing complaints and for taking action on those complaints. Although I agree with the member Jacinda Ardern that there are existing mechanisms, particularly within the school environment and also in, perhaps, the Youth Court environment, I do not see that those existing measures, where they work well, cannot be utilised by this civil enforcement regime. In fact, I would like to think that as part of the mediation provisions that are enabled by this bill, those existing mechanisms could be utilised—diversion, perhaps, or Project Turnaround. Those sorts of good community-based options should be part of the suite of remedies available to people.

We acknowledge that court cases can take a long time, can be very distressing, and can be quite costly on occasions, and the reality is that the damage has already been done. And the victim, naturally—particularly if it is a young victim—just wants the matter resolved as quickly as possible. So for those reasons, victims may be very hesitant to lodge a formal complaint to the police. Again, it is often the case that younger people do not always enjoy a particularly close and trusting relationship with the police and may be reluctant to come forward. It is well-known that victims of bullies often find the hardest thing is to reach out for help. This, I hope, with this civil enforcement regime, will lower the bar and make it more possible for victims of cyber-bullying to reach out. So the approved agency, having received a complaint, can then decide whether there are grounds to proceed with an investigation or whether, perhaps, a complaint might be vexatious—it happens. It may be frivolous—it happens in this environment. It will advise people on steps that they can take to resolve a problem. Where it investigates substantial complaints, it will attempt to reach settlements between the complainant and the person responsible—so mediation, and, again, therein comes the utilisation, I would hope, of existing mechanisms in the resolution of disagreements. Where an agreement cannot be reached, then, of course, there are the provisions of the District Courts, which I have already mentioned.

I just want to finish by talking briefly about the safe harbour provision. So a content host could be anyone these days: anybody who has a blog, Facebook, Twitter, Vodafone. Most of our legislation was written before the internet was a consideration, so it is not always clear when a content host is liable for the content posted by its users. So we are proposing a safe harbour. What that means is that a host will not be able to be taken to court for comments put on their website unless they have been notified by the complainant that the comments are in breach of the law and they then do not follow the process set out in the bill. 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.

I am pleased to take a final call on this bill to speak in support of this bill. As we go into the final reading it is worth noting, as others have done, the genesis of this bill, if you like. It was the original policy work that was done around this issue, which came from the Law Commission, which did three pieces of work that were linked. The final and most substantive, I think, challenged the adequacy of the legislative regime around offending of this nature, or nuisance of this nature, if you like. It found the legislative framework wanting, frankly, and proposed a series of options and possible remedies for that.

The bill, as it has evolved, does reflect some of the proposals contained in the Law Commission’s work. Others have been amended, but overall it does undoubtedly plug a gap in our legislative framework. In fact, that point was commented on by the Police Association in its very useful submission to the Justice and Electoral Committee on this bill, where it pointed out that the police could deal with sort of the very low-level nuisance offending, and they could deal with the very serious offending where actual physical threats or some sort of direct assault was made on somebody, but it also highlighted that there was a large and growing gap in the middle where they were finding it very difficult to actually bring any action against people who were undoubtedly causing grief and causing harm.

I think it is important. There has been some critique that we are creating a legislative regime or some statutory framework that is unique to online content, unique to the internet or to digital communications, and I think that is entirely appropriate. I think it is somewhat disingenuous to suggest that the digital platform, if you like—the internet—is somehow not unique, not different. The reach of the internet is unique. It is pervasive. It is ubiquitous. The accessibility of the internet is unique. It is possible to inflict considerable harm over a great distance with very, very basic access to the internet, and I think that has to be recognised.

In a sense we have been here before. Clearly, in the 1950s and 1960s when television became more commonplace, there was a need to have some legislative response to that around censorship, around what we would now recognise as broadcasting standards—those sorts of things. I recall a famous quote at the time that TV was simply another home appliance—simply a toaster that happened to have pictures on it. Of course television did change the media landscape, in the same way that the internet is changing the way we do business, changing the way we trade, changing the way we educate people, and changing the way we interact socially. It is undoubted that it is a new medium and we need legislation fit for purpose to deal with that.

Support for the bill has come from many quarters, and I will quote the Human Rights Commission, which said: “In our view the bill strikes the correct balance between freedom of expression and access to the internet. A right cannot be interpreted so broadly that it allows others to be harmed.” We can take some comfort, given the degree of concern that has been genuinely expressed in some quarters that this bill maybe goes too far. I think the Human Rights Commission, among others, is a reasonably good judge, and in its view we have found that correct balance.

I would, just for the record, reiterate the points Jacinda Ardern made in respect of the intention of this bill being absolutely not to suppress satire. It is not intended to suppress robust political debate. Politicians need to develop thickish skins—that is taken as a given. Cartoons, satire—these are legitimate forms of expression, of critique, and there is no appetite, I believe, within the bill or from those who drafted it, who have looked at it, and who are supporting it to see any change to that environment. I am sure that the courts, in their turn, will understand that and rule accordingly.

I think it is important to note also that NetSafe, the organisation that is currently involved, I guess, primarily on an educative basis, made the point in its supplementary submission. It commented on the number of people coming to NetSafe having already spoken to multiple organisations and having found that there was nobody to assist them. I do think that speaks to the need for this bill to establish a dedicated agency with some authority—a limited form of authority, admittedly, but, nevertheless, some authority—and, ultimately, if a matter cannot be resolved there, for it to go to the courts.

I think it needs to be noted that this bill in a sense creates a three-stage approach. A primary function of the approved agency will be to educate, and one of the first steps taken at the select committee level was to ensure that very clear language was put into the purpose of the bill. Fundamental to the bill is the expectation, the requirement, that the approved agency will be heavily involved, and one would expect it to be equally well resourced to educate around these matters, not least of all with young people but also with people who are not so young.

On the occasion when something does occur that upsets someone, the next step, of course, after education, is the mediation and negotiation process, which the approved agency will seek to facilitate. Again, that is a good process—to endeavour simply to get these matters resolved without recourse to the courts, but, ultimately, having the confidence that if people are unreasonable, and if they cannot come to a negotiated or a mediated outcome, then the courts will step up. Again, NetSafe made the point that “You can’t have part of the process and expect the full effect.” The point it made was that the court process is required to make the approved agency process work. There needs to be a little bit of the threat of a stick hanging over the negotiation, if you like, just to focus people’s minds and to assure them that actually this is serious stuff and will be treated accordingly in the event that people are not able to come to some negotiated remedy.

To speak to a couple of points, again, in part to seek to allay fears or concerns that have been expressed, I think we have to be aware of the communication principles that have already been identified. There are, if my memory serves, 10 of them, and they do set the scope for the work that the court might be obliged to do and, indeed, that the approved agency will do. They set the criteria. They establish a framework for considering whether or not people could, and should, be genuinely understood as having been offended against and to put some pressure on people causing offence to remedy that situation. The digital communication should not disclose sensitive personal information, it should not be threatening, intimidating, or menacing, it should not be indecent or obscene, it should make not make false allegations—these are fairly obvious criteria that anybody could understand and respect.

I am also given some comfort by the fact that clause 6(2) of the bill specifically states that “In performing functions or exercising powers under this Act, the Approved Agency and courts must–… (b) act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.” That is an absolutely clear statement that nothing done in the name of this bill or under its banner can be allowed to be inconsistent with the New Zealand Bill of Rights Act, and I think that is a significant defence and one that has been perhaps overlooked.

The threshold for proceedings—assuming the approved agency is not able to mediate an outcome and in the event a matter does go to the court, then there is a threshold set. It requires that the court must be satisfied that there have been threatened serious breaches, or have been serious breaches or repeated breaches, of one or more of the communication principles and that the breach has caused, or is likely to cause, harm to some individual. So it is already a reasonably high threshold to even get the case into the court. The court is able, on its own discretion, to reject anything that it perceives to be frivolous or vexatious or that does not meet that threshold.

Clause 19—again, it is not sufficient to say that harm was caused; it must also be proven that there was an intention to cause harm, that a reasonable person would expect that harm would be caused, and that, in fact, harm was caused to an individual. So I think we can be reasonably confident that this bill has been well thought through and does put in place some significant protections.

I will comment briefly on a matter that was brought up at a late stage, which was the concern that, in fact, you might get a counter-productive outcome. The take-down, or safe harbour, provisions will take at least a number of days, and the content that might otherwise have come down immediately would, in this case, actually persist for some time. There was an amendment made at the Committee stage—which we entirely support—to the effect that content hosts that receive a complaint can, at their own discretion, take down material that they in good faith believe is offensive or that conflicts with their terms and conditions.

Finally, I do indicate my support for this bill. We look forward to its implementation, and we certainly support the notion of an ongoing review to ensure it is achieving the outcomes we seek.

Kia ora, Mr Deputy Speaker. First of all, just to address some of the concerns that have been raised, can I just say that New Zealand First was the only party in this House with the courage of its concerns to make an attempt at the second reading to send this bill back to the Justice and Electoral Committee. That motion was certainly supported by other parties in this House, but at that time we were the only party raising those concerns that had the courage to actually move a motion to try to send it back. We also voted against the bill at the second reading. So I take particular umbrage with Mr Seymour, actually, and with the trivialising of the effect of cyber-bullying on our young people. I want to quote from the New Zealand Herald of 30 June, in which Mr Seymour said: “Other online behaviour like sexual grooming was already illegal. ‘What are we actually criminalising—kids being mean to each other?’ ”. Kids who have been mean to other kids have killed themselves. That is one of the reasons why we need to traverse this ground. So I take exception to the trivialisation of some of the trauma that is actually being inflicted—and I am talking particularly about our young people—by internet cyber-bullying. That is the reason why it is important that we address this issue—but appropriately; we have to address it correctly.

I want to take on board the comments about schools and whether the current anti-bullying programmes and mediation programmes inside schools are adequate enough to address this issue. The following is from the Post Primary Teachers’ Association (PPTA). Predominantly—at the moment, anyway—the majority of the issues that we have inside our schools are focused at the secondary school level. The association said: “The Harmful Digital Communications Bill, currently before parliament, proposes to ‘deter, prevent, and mitigate the harm caused to individuals by digital communications with a quick and effective means of address’. The bill attempts to provide a legal solution to the harm caused by cyberbullying and recognises harmful online comments as a form of harassment. It includes new penalties for causing harm through digital communication and creates a new agency with the power to assess and investigate complaints. The agency will also have an education role, similar to the Human Rights Commission … ‘Schools regard cyberbullying as a very serious problem especially because it often occupies the blurred space between home and school so it’s not always clear whose responsibility it is to deal with it,’ ”.

This comes down to the current ability of schools with regard to the discipline procedures inside the Education Act 1989. When children leave the school grounds, they are in an interesting space. Are they still in their school uniforms, and therefore still in school, and so the school rules still actually apply? And believe me, these are true cases and true conversations that I and other boards of trustees have had to have. Or have they removed their school shirts, and therefore are just in their school shorts? Does that mean that the school rules still apply? But when they are at home, in their civvies, texting another student in the school, it has been argued that they are no longer under the jurisdiction of the school, and, therefore, the school can do nothing about it. That is one of the problems that we are trying to address here. That is one of the spaces that we are trying to address here.

Another suggestion that has been made is that there is existing law and that we should just use existing law right now. I put up this example at the Committee stage. One of the suggestions was that we already have the Harassment Act. The problem is that the Harassment Act makes the assumption that there is a relationship between the person being harassed and the person doing the harassing. Before this bill passes, there is no room inside the Harassment Act, actually, to create a relationship wherein somebody can harass a person without even knowing them—without even knowing a person, they can harass them. They can do it without knowing anything about a person, apart from the fact that perhaps they are, say, a really good singer in the school production and they themselves cannot sing, and they have decided that they are now going to make that person’s life a misery. Inside that current Act, there has to be a relationship.

Misuse of a phone device—we went through that as well. Certainly, there have been photographs taken on a phone; they have then been posted up on a computer. And once it goes from the misuse of a phone, it becomes a whole other environment. You cannot take it down. You cannot deal with it. Certainly, to threaten somebody with bodily harm is also, I think, within the Crimes Act, section 306. Again, the current Act makes an assumption that there is a relationship between the person being threatened and the person doing the threatening. What we are discovering is that these threats are coming completely out of the blue for many people—for example, the young Sikh student who was on a bus. Not a single person knew him, but they threatened him, and there was nothing that the police could do about it. This is what we are trying to avoid.

I talked about freedom, and we have talked about freedom of speech. Freedom comes with responsibility. Freedom comes with responsibilities, and, obviously, there are some people out there who do not figure out what those responsibilities are inside this environment. I go back to comments, made at NetHui a couple of years ago, that the internet is a place. If the internet is a place, then we need to have some criteria in it. We need to have some rules in it, because there are people being hurt in this place, and part of the job of this Parliament is to stop people from being hurt. Also, 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.

In closing, I think that probably the only other thing is that we agree in this House—all people agree in this House—that something has got to be done. I would certainly endorse Ms Ardern’s comments about our needing to have a look at this in a year’s time. New Zealand First was concerned about the fact that we did not want to criminalise children when there were other options available to us. So we worked constructively with the Minister, and the Minister put in a Supplementary Order Paper that addressed all of New Zealand First’s concerns. We will watch, like everybody will watch, whether people can behave appropriately without Parliament stepping in and protecting those who are being attacked, those who are being affected. Take Yik Yak, for example. I do not know how many people in this House know what Yik Yak is. Yik Yak is an app on which people can actually make comments—just constantly “blah” their mind on this app. For university students, it is about missing a lecture or whatever the majority of the time. Down in Wellington, it is being used in a relatively constructive way. Go out of Wellington, and it is really interesting how vicious that Yik Yak is inside secondary schools—how absolutely, anonymously vicious it is. And yet what is interesting is the way that they hook people into it. When you have made five or 10 really nasty comments, you become famous. You become famous inside this app.

New Zealand First will support the bill. As I said, we did not support it at its second reading, but we worked constructively and the Minister has taken on board our concerns. The bill has been rewritten to a certain extent with the Supplementary Order Papers, and so, therefore, we will support it through third reading. Kia ora.

I just want to acknowledge the member who spoke just before, Tracey Martin. I think it is pretty clear from listening to her speech that she played a constructive role in the gestation of this bill, but also in the improvements that have been made to this bill through the select committee process and also through the Committee of the whole House stage. I think it is also clear from listening to her speech—and I know the honourable member serves on a board of trustees in Auckland, in Rodney—that she has some experience in the school system, so has some not unique but certainly useful experiences to bring to bear on this issue, which primarily, of course, affects the young. Although not completely: but primarily it affects the young. So I think some of the examples that we have just had mentioned by Ms Martin have been a useful contribution to the debate. It is not often that Tracey and I agree, so put that down for the record.

This bill was introduced in November 2013. Unfortunately, I did not have the privilege of being in Parliament then, or, indeed, of serving on the Justice and Electoral Committee, which considered the bill. But I have interrogated the bill and its principles pretty thoroughly over the last few weeks, and I am very glad to stand here supporting it. The driver of this bill is really technological change. It is one of the paradoxes, really, of modern society that privacy to individuals is becoming more important, whilst at the same time individuals feel free to place more of their lives online than ever before. They feel free to share photos. They feel free to put up photos of their cats, even likening them to politicians. They feel free to share their poetry online. They take Instagram shots of their food and place them online. They place their holiday snaps online. Previously you had to go around to somebody’s house in the evening to watch a boring slide show of their holiday snaps, whereas nowadays, if you are really keen on seeing somebody in Angkor Wat or in Burma or anywhere, you can just log on to Facebook and see them straight away.

Technology really is changing everything. The world’s biggest transport company, Uber, owns no cars. The world’s biggest accommodation provider, which is Airbnb, does not have any hotel rooms and does not own any buildings. So, really, the internet is changing everything. But with that comes new threats. If you read the regulatory impact statement on this bill, it rightly makes the point that there are new threats for harassment, for abuse, for threatening behaviour, for the publication of invasive photos, and for invasions of privacy that come with this new technology. If you read the regulatory impact statement, it makes the point that TradeMe has 2.8 million users. It is actually quite astonishing. That is about 75 percent of the New Zealand population, assuming that each user is an individual person. There are 2.8 million individual users, with 25,000 posts per day—and I think the regulatory impact statement was written about 18 months ago, so I suspect that figure is actually far higher now. If you look at Twitter, there are one billion tweets sent per week. Again, I suspect that figure is actually far higher now.

With these new technologies come new threats. In some ways, the traditional school playground has moved online. Growing up, I remember—you know, we did not have cellphones when I was growing up, or, certainly, they were a very nascent technology and they were too expensive. They were outside the realms of a chap like me. But I remember going home and logging on to MSN Messenger. That was the playground for abuse in my day, the famous MSN Messenger technology—now, sadly, retired. Microsoft has got rid of MSN Messenger, but that used to be the thing—

💬 David Seymour: No!

It has. It has gone. It is gone, Mr Seymour, it is gone. Mr Seymour is of a similar age to me, so he no doubt remembers, as well, going home from Auckland Grammar School—finishing rugby practice and all of the extracurricular pursuits he no doubt pursued at Auckland Grammar—and logging on to MSN Messenger to catch up with the very same people he had been talking to at school that day, but also people from other schools in his community. It is gone now, but MSN Messenger was certainly a hive of interesting and challenging behaviour.

Nowadays, of course, very many students at school have cellphones, and they have 4G or 3G access to the internet. They even have Wi-Fi at schools. The potential for students to bully, harass, and make life a misery for other students in the school has certainly been heightened. If you read the background work on this bill, something like one in 10 New Zealanders say that they have experienced harmful communications on the internet. That comes from the Law Commission. That figure rises to one in five for adolescents. The Minister, in her third reading speech, outlined some very sad cases, which I will not repeat, of harmful bullying and abusive behaviour that took place over the internet in New Zealand society. The question that confronts Parliament, then, is what is the appropriate legal response from the legislature to something that—I think there is unanimity on this in the House—is poor behaviour? What should be the legal response?

Well, the Law Commission did a review, and it concluded that, basically, the existing remedies that we have in our law, like defamation, harassment, and vilification, do not effectively address the potential for harm from these new technologies. So we have a lacuna in the law. There is an argument, I think—and it has been advanced by the some people—that we should just rely on defamation law and that we should just rely on the existing civil or tortious remedies in our law. I think, with respect—and I think Tracey Martin pointed this out, and others have as well—that it is a little far-fetched to expect that we could rely on a 13-year-old or even a 16-year-old to rely on defamation law to enforce their rights against those who seek to violate them. So I think that is a little bit far-fetched, and I think the Law Commission went through that and came to that conclusion as well.

So we have this bill put forward by the Government. So what does it do? It creates a new civil enforcement regime to quickly and effectively deal with harmful digital communications. That is its first major objective. Secondly, it creates new criminal provisions that deal with the most serious conduct. There was some debate, I think, about whether or not there should be a criminal offence included in the bill, but, as the Minister has made clear, I think it is correct to say that we do need that backstop provision for the most egregious, vile, and reprehensible conduct, and I think it is clear that that is required. Certainly, the United Kingdom has moved towards this; it has criminalised revenge porn, for example. Australia, I understand, has had a law similar to this for a decade, and there have not appeared to be many problems with that.

So how will this law work in practice? I regard it as a cascading series of options—well, not options, but a cascading series of things that the law does. Firstly, the law sets up this approved agency. It is very correct to say that the major priorities for this new approved agency are that it must have an educative focus, it must be well resourced, and it must be seen as a credible authority in this area. The Minister has given that assurance that that will be the case, and I, for one, will be inside the Government caucus making sure that that is true. So it sets up this new agency, and then what we have are mediated outcomes. The Minister has said that the vast bulk of the activity of the new agency and the vast bulk of complaints that take place under this new Act will be dealt with through these mediated outcomes, and I think that is appropriate. Then, of course, we have the ability to apply to the court for civil orders for take-down notices to remove material, and then, of course, the criminal sanctions that I have talked about.

Just in closing, I want to briefly talk about freedom of speech, because section 14 of the New Zealand Bill of Rights Act protects that and it is very important. I was concerned that this bill would potentially impinge unnecessarily, unfairly, and unjustifiably on section 14 of the New Zealand Bill of Rights Act, so I went and looked up the section 7 report—because, of course, the Attorney-General is required to report to the House if a bill is unjustifiably inconsistent with the New Zealand Bill of Rights Act. The legal advice is published, so I went and looked up the legal advice from the Crown Law. The legal advice from the Crown Law is that this does not breach section 14 of the New Zealand Bill of Rights Act, or, to the extent that it does, it is a justified limit, because it finds that “expressions can be limited to the extent necessary to avoid or redress serious emotional harm or other harm or the incitement of harm:”. That is, according to the Crown Law Office, a justified limit on section 14 of the New Zealand Bill of Rights Act, and that is, in essence, what this bill is trying to do. So I was comfortable to conclude that this bill is acceptable and a justified limit on section 14 of the New Zealand Bill of Rights Act. Because of that, I commend this bill to the House.

Kia ora, Mr Deputy Speaker. Ngā mihi nui ki a koutou, kia ora. Today Parliament finds itself at the complex intersection of rapidly changing technology and slower-changing legislation. I have no doubt there is not a single member in this House who does not want to reduce the harm that is caused by posting personal and private content online without permission, or the messages some poor younger Kiwis have received—a deluge of messages urging suicide. I have no doubt any member is standing for that. This bill, though, is a case of trying to do something, or trying to do anything, about a complex and serious phenomenon. The intent is noble—to try to reduce the harm of cyber-bullying—but this House should be measured by the content of our legislation, not just by our intent.

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 off-line but illegal online. I agree with the intent of the bill, which is to try to reduce cyber-bullying; however, I am opposed to the way it is achieved and currently drafted. I 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.

The bill comes out of some disturbing high-profile examples of online cyber-bullying and the Law Commission report, from which the Government has cherry-picked some of the recommendations. The idea of an approved agency is a good one, and one that I support, to help people who cannot currently access quick redress or support or advice from agencies such as the police, who, quite frankly, were incredibly poorly informed of how they could support victims to get hurtful material taken down under the current content providers’ terms and conditions. Likewise, I would like to acknowledge the good work of NetSafe, which is currently dealing with around 800 cases a year.

Likewise, the idea of a notice and take-down power with safe harbour protections for content hosts is a good one, and will give the remedy most desired by victims of cyber-bullying, where they just want to see the damn stuff get taken off the internet. However, I would note this take-down provision applies only to the District Court, not to the approved agency, which is going to be, most likely, the highly respected NetSafe, which will have to engage in a whole process of mediation before going to the court. Although the material, which I think any member of this House would want to see taken down, could be removed, the risk is we will see it there for longer than desirable.

However, it is the new criminal offences, and the offences for causing harm online by posting a digital communication, that I disagree with. This offence carries a penalty of imprisonment for up to 2 years, a fine of up to $50,000, and is under the minimum jury level limit. I believe this new criminal offence is a step too far. I agree with the UK House of Lords, which in its 2014 report said: “what is not an offence off-line should not be an offence online”. I see this as a worrying precedent that sees the online world as something different, something foreign, and somewhere where rules and laws and criminal offences can be different. It is just not the case. There is a rule for regulating specific technology, because it does have unique characteristics, and I understand that argument for the internet, but I do not support a technology-specific criminal offence, which, in this case, has different rules or standards for the content of speech or behaviour online and off-line.

The criminal offence for causing harm by posting a digital communication could, additionally, have a chilling impact on freedom of expression and the important role of the media. The values we share of freedom of expression and a free media are important to our country, and they should not be weakened lightly or, in this case, inadvertently. As technology expert Thomas Beagle has pointed out, causing offence by posting digital content is so over-broad that it criminalises public interest political speech such as, for example, exposing corruption or the dodgy dealings of a member of Parliament. Likewise, parody and satire have an honourable tradition across thousands of years, yet often do cause harm to the powerful or the rich, whom they seek to embarrass, satirise, or parody. There is no doubt these people are embarrassed, yet they do not have the protections applied.

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. The Government, unwisely, has ignored the Law Commission’s advice to exempt the media, and it should have listened to the Law Commission.

“Harm”, which is the crucial word in this new criminal offence, is defined by the interpretation section as “serious emotional distress”, which is, I believe, irresponsibly broad. It would have been far more preferable to modernise and plug the existing gaps in legislation such as the Harassment Act and not introduce a new, vague “harm by posting online” offence. Now, there are factors—the defence and supporters of the bill will argue this—that the District Court must consider, including the context of the digital communication. But could any defence be broader or woollier than what is written in the bill, which is context? It is incredibly vague, incredibly subjective, and it would have been much clearer to protect the public interest or to protect parody and satire. Likewise, the truth of the online allegation can be taken into account as a defence, similarly to defamation, but the way we have gone about it in this bill circumvents 200 years of case law to get there. So a judge may interpret context as a defence in reasonable circumstances, but having such a broad, subjective view for the new criminal online offence is just inviting the powerful, the vexatious, and the litigious to use this to shut down legitimate comment.

There has to be some irony that a law to address cyber-bullying could be used as a tool to bully and take down different opinions. Internet service providers, the content hosts, who are often in a highly competitive market, working as hard as they can, are going to face the pressure of these applications coming in, and the, quite frankly, simple choice to maybe just take down the stuff to avoid a mess or avoid some work, which could reduce the information, the discussion, and the democracy in New Zealand.

In summary, I support the bill and some the measures contained within it to reduce the harm of cyber-bullying, but not the bill itself. It is too broad, risks limiting our freedom of speech, and introduces this new online-only criminal offence. This bill has sat on the parliamentary agenda for years and years. I urge the Government and members to take a bit more time to make sure we get it right. Thank you very much. Kia ora.

It is an enormous privilege to live in a society that benefits from 800 years of common law, which has given us, among other rights and freedoms, freedom of speech. It started, perhaps most colloquially, as the simple idea that “sticks and stones may break my bones, but words will never hurt me”. In actual fact, what has evolved is the idea that words can hurt sometimes. And over that long period of time, an intricate network of defences has evolved so that people can, for instance, defend themselves against damage to their reputation that was done deliberately, that was untrue, and where the audience might be led to believe that it was true. That is our inheritance: 800 years of trying to figure out how exactly to protect freedom of speech on the one hand and people’s right not to be unfairly maligned on the other. Another great privilege that everybody in this room has—everyone on the floor of the House, at least—is membership of this House of Representatives. To use the second privilege to destroy or, at least, to erode the first one—the way that this bill does—is something that I cannot support, and, therefore, I must vote against this bill.

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. If you were to say: “Happy 31st Liz”, would that be giving away information of a personal nature about another person that you should not reveal? Would that be a bad example? How many of these bad examples will actually end up discouraging freedom of speech, in what you might call a “chilling effect”?

As I said in my maiden statement to the House, it is ce qu’on voit et ce qu’on ne voit pas. It is not just what is seen, but all of the unseen expression that will now not occur because of the chilling effect of the communications principles if the enforcement of it—even if not quite criminal yet, you understand; you are going to be OK—by the approved agency is brought to bear. Perhaps that is why Voltaire said: “I defend to the death your right to say what you say”, even when those are things he might have disagreed with. It is a sad day in this House when you have to rely on lots of dead Frogs to stand up for your civil liberties—and you probably will not be able to say that very soon either.

It might be worthwhile to have this law if we truly believed that it was going to reduce harm and protect people. But, in actual fact, as soon as you start to look at the contradictions, you can see that it will make little, if any, difference to reducing harm for people online. And there is genuine harm to be mitigated. You will find that there are much, much simpler, more straightforward ways to do that, with far fewer side effects. For example, we are concerned that children will bully each other. So the idea is to introduce criminal sanctions, but, of course, you understand, we are not really introducing criminal sanctions for children, because they will go through the Youth Court. So somebody might ask why you would make a law that you did not intend to be enforced properly. Or, for another contradiction, you might ask how quickly most viral phenomena on the web take place. Well, under this law, you have at least 96 hours of back and forth before any kind of order can be enforced. So you might ask yourself how this seriously addresses the problem that most people face. Well, I suspect that there is very little coincidence with the fact that it is the youngest members of this House who are most opposed to this bill. It is, fundamentally, a generational conflict—a law imposed by people who are not digital natives and who do not understand how the internet works on users of the internet who do.

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. That is something that I cannot explain any further. Anybody who does not see the problem with that construction is incapable of having it explained to them, but for those who do understand it, that is why it is critical that this type of legislation becomes rarer and eventually obsolete, in terms of being introduced to this House.

Of course, there are real concerns. Nobody denies that revenge porn and incitement to commit suicide are serious dangers, and they are dangers that have come to some extent from technological advances. It would have been very simple—and I have to thank the Labour Party for supporting my Supplementary Order Paper last week—simply to say that in the Crimes Act it is a crime to make an intimate digital recording and to distribute it without the person’s consent, particularly if your aim is to do harm. That is the right way to do it. I have to thank Clare Curran, who approached me early on about opposing this bill, and I apologise that we were not more proactive. I think we might have been able to defeat it. Ditto to some of my colleagues in the Greens, who have bravely decided today that they will oppose this bill and support good lawmaking. I should probably compliment some of my friends in the National Government who have severe concerns about this bill, but I do not wish to get them in trouble, so I will not do that.

In conclusion, this is, fundamentally, about the quality of the laws that we make in this House. Do we wish to make laws that are fit for purpose and that address the problem, with the smallest possible number of side effects, or do we wish to make populist knee-jerk laws that will do very little to achieve their intended outcomes and yet have enormous unintended consequences and do great damage to the rights and freedoms that have evolved in our society over several hundred years? Do those of us who have the dual privilege of benefiting from 800 years of common law—and the freedom of speech that it has intricately delivered—and the privilege of being in this House want to use the second privilege to tear down the first one? Unfortunately, it would seem that far too many of my colleagues in this House do.

As a final thought, it will not escape members that we often have a reputation in public opinion surveys as being very untrustworthy. Can I suggest to members that we will be back debating this, discovering that we have overpromised in terms of our ability to reduce harm through digital communications and that we have under-delivered in terms of protecting rights and liberties. If we were to reverse that equation by opposing this bill, we might very quickly improve that situation. Thank you.

I find myself agreeing with a lot of the detailed objections that the ACT member, David Seymour, had to the detail of this bill. The Labour Party, on balance, is voting for the legislation because it does think that there is a social ill that needs the push back of the law against—I see Dr Russel Norman is smiling at my exposition of our position, but this is the position we have reached. There is a social ill that needs to be addressed, which is the inappropriate use of the internet to bully people and to make their lives a misery, and this new technology needs a push back from Parliament to enforce the societal norm that disapproves of that sort of behaviour. On balance, because there is this need to push back against what is happening, we are voting for the legislation.

The reason that we backed David Seymour’s proposed amendment at the Committee stage was that the legislation is, in our opinion, too broad and would be better were it narrower. So I readily agree with David Seymour that this legislation is imperfect and could have been made better by this House.

What were our main three problems? Indeed, I asked the Minister to respond to these issues in the Committee stage and the Minister declined to do so, which I think is lamentable because I thought the issues that were being raised by David Seymour, and the Labour Party as well, were correct.

The problems fall into three main categories. First of all, you should always be wary where the Government is applying a band-aid to a subset of problems for a particular technology—in this case digital communications—rather than to all communications. This bill applies to harmful digital communications only, and, therefore, does things in respect of digital communications that are not being done in respect of non-digital communications. It is an unusual thing to do—to legislate in a way that constrains rights of expression for only one mode of expression. You would think that if it was right to do that for one mode of expression it would be right to do it for all modes of expression, and the fact that it is not across all modes of expression—you should ask yourself, why? The answer is, because if the Government was to make these proposals in respect of all modes of expression there would be a public uprising as to the limits of freedom of speech and whether we have got that balance right.

In respect of this legislation, there is no express preservation of the right of the media, for example. There is no express reference to rights of freedom of expression under the New Zealand Bill of Rights Act and, given that this legislation is passed after the New Zealand Bill of Rights Act and is more specific than the general provisions of the New Zealand Bill of Rights Act, it is likely that where there is inconsistency with the New Zealand Bill of Rights Act, the provisions in this bill are going to be interpreted in a way that will constrain rights of free expression.

This could have been done in a way that is better than that and removes that ambiguity. The way it could have been done would have been to, for example, criminalise what is obviously and clearly wrong, which is what they have done in the United Kingdom where they have criminalised what is called revenge porn—where if someone has taken in a personal relationship situation something that is an intimate photograph, it should not be able to be put out there digitally for widespread utilisation after the relationship breaks down.

That is, essentially, what revenge porn does. It takes what was done in personal confines, perhaps unwisely but in a moment in a relationship, and then it is used for a purpose that was not contemplated at the time. It is not a misrepresentation—it is actually an image that is accurate—but it is being used for a wrong purpose, and so in the United Kingdom they have criminalised that. I can understand why, and I think the criminal provision in this should have been narrow like that, rather than broadly defined as it is, because it covers such a wide ambit of communications in an ill-defined way that it goes further than it needs to do. So the first point is that the criminal penalty here will amount to an infringement of free speech without being clear as to the limit on the limit, and I think it is poor legislation from that perspective.

The second issue is the safe harbours that we voted for. I asked the question of the Minister at the select committee whether we were in fact creating safe harbours that do not exist for internet providers or for intermediaries for these means of communication—to the people who make money out of it—where they do not currently have a safe harbour. My concern was, and the example I gave was, if you were a provider of some internet communication forum that was attached to something that you made money from—you were trying to attract business to your website that you make money from—and in order to do that you ran an allied service to people that was a communication forum, then currently you might face risks if you were publishing something that was defamatory.

It seems that the safe harbour that we are creating here will be conferring protections on the organisation that is the intermediary that are greater than their current protections. So we might be undermining the current law, which would place that provider at risk if they did not immediately respond to a complaint that something was defamatory and immediately take it down. I am not sure that that is good law because we could be making things worse rather than making things better, by creating a safe harbour where there may be none now.

I have not been able to get my head around that fully because the Minister’s refusal to engage with that issue in the chair means that I do not know whether that is correct or not.

💬 Dr Russel Norman: Is this speech for or against the bill?

Well, it is a speech against this part of the bill, Dr Norman. So this legislation, for those reasons, is not nearly as good as it could have been because those sorts of concerns could have been dealt with if the Minister had been willing to listen—if the Minister had been willing to vote for some of the amendments that had been brought forward by the Labour Party and also by David Seymour on behalf of the ACT Party.

Will it work? That is the other question that we need to ask. Well, I suspect that it will not work completely but that it will have some effect really to heighten the stakes for inappropriate behaviour by some of those people who are currently deliberately promulgating harmful digital communications to the detriment of other people in society. So it will have some effect, but it also creates complexity in respect of our communication laws generally that could have been avoided through a more targeted piece of legislation.

Lastly, before I sit down, I just want to say again in respect of the definition of what amounts to serious emotional harm that it is very hard to tell because it is not defined, and I think that is undesirable as well. With those reservations, which are substantial and could have been avoided had the Government been more willing to listen to critics of its own legislation, the Labour Party supports this bill.

It is a pleasure to rise and speak in the House as the last speaker in the third reading of this Harmful Digital Communications Bill. The bill is in the name of my colleague the Minister of Justice, the Hon Amy Adams, but, of course, it was originally introduced by her predecessor, the Hon Judith Collins, in the last Parliament. In the last Parliament I had the privilege to be chairing the Justice and Electoral Committee, where the bill was first sent—

💬 Tim Macindoe: You did that almost as well as your predecessor.

—almost as well as my predecessor, Tim Macindoe says, notwithstanding that he was indeed my predecessor—so I had an opportunity, as the bill was introduced to the select committee, to hear the submissions and to take an active, participatory role in the select committee process until the end of the last Parliament.

This was always going to be testing legislation in terms of where this Parliament sits vis-à-vis its responsibilities to our society in terms of new, modern technology and the harms that come from cyber-bullying, harassment, and those sorts of things. It was always going to be legislation that was going to test the minds of MPs as to where the balance should lie in terms of our involvement and the State’s role and people’s right to express themselves freely using modern technology. So I have watched with great interest as this bill has progressed its way through the House. I have been encouraged by the quality of speeches that have been presented in this third reading, and I want to congratulate all members, even those who have, I think, used the opportunity to speak against the bill. I think they have made good points—some of them, in my view, a little misguided, but good points none the less.

It is all very well and good in this House to oppose for the sake of opposing and to do so sometimes on the basis of high moral ground, but actually there are times when this House needs to act and to do something and needs to take a lead. Often parliaments like ours around the world follow too far behind the innovations that come with modern technology, and this is a case where our Parliament, like other parliaments around the world, is trying to grapple with the negative impacts and the downsides that occur from so much of the wonderful attributes and opportunities that new technology brings us.

Jacinda Ardern in her speech earlier on this afternoon in this debate said that Labour members felt that they were wedged on this issue—that they were a little unsure about what to do and how to do it—and I think that she accurately summed up the position. It is probably not just Labour members who were wedged; it is probably all of us as parliamentarians that are wedged on this issue because we all come into this place wanting to profoundly enhance the rights of individuals to participate in an active, free democracy, where freedom of choice and freedom of speech and freedom of expression are all fundamental foundation stones of that democracy. But at the same time we are balancing, as we always must, the responsibilities that go with protecting those who are vulnerable in our society and in our communities, and there are none more vulnerable and exposed to these things in the digital age than young people, who do not have the ability to use the tools that existed prior to this legislation being enacted, such as taking defamation actions and doing all the sorts of tortious legal remedies that actually do exist already in our existing legislation. Those options simply are not practically available to them.

So this bill is a measured approach, a measured response, and a balanced response to try to juggle some of those difficult and hard issues. I note that the Greens are struggling with it as well and that some of those members are going to vote for and some are going to vote against.

This is a bill that will test not only us as legislators but our fellow country folk as well, because they are difficult issues. Here what we are trying to do is apply purely subjective measures to a whole range of challenging modern issues, so with that comes hard questions about trying to find where the balance should be in terms of determining and then remedying the harm. How do we measure that harm? How do we identify it? Who decides what that harm should or should not be? What are the sanctions once harm has been identified? Where does the responsibility for the intervention lie? And who is responsible for righting the wrongs? This bill attempts to achieve an answer, a resolution, to many of those hard questions.

Is it perfect legislation? Well, it might not be perfect legislation, but it is legislation that I think is much needed in this House. I have been heartened by comments made publicly by the Minister over recent times that if we have not got this quite right, we will look at it again. I think that is the responsible and appropriate measure for a Parliament to take, because on this issue there simply is not, in my view, a do-nothing option.

Our young people and their future is too important to allow us to just abrogate our responsibility and leave it to organisations such as NetSafe, or Facebook, or Google, or any of those other organisations to try to find their own way through it. Most of those organisations actually do already have their own rules, and I remember going with the select committee to have a look at the offices of TradeMe, where we saw how it tried to moderate the messages that were on its message boards and how it did it. But, essentially, it came down to a subjective, values-based decision of one person sitting at a desk at a computer screen somewhere in the depths of the TradeMe organisation and making a call as to what was harmful, what was right, what was wrong, what was offensive, and what was not.

If there is one thing we know as legislators around the world, it is that offence and harm and things of that nature are a bit like beauty. They are in the eye of the beholder. So one person’s freedom of speech is another person’s offence and harmful bullying tactic. There has been a lot of comment on various channels, on blogsites, and in a whole range of other media commentaries about the infringement that apparently exists because this bill seems to somehow remove people’s right to freedom of speech.

I listened carefully to the contribution of my colleague Chris Bishop a few minutes ago. He made mention of the section 7 report that the Attorney-General had presented when considering this bill and, in particular, he made reference to section 14 of the New Zealand Bill of Rights Act 1990, which, of course, guarantees to us all the right to freedom of expression. However, what is really important is that that is not an absolute right. It is not an absolute right of freedom of speech because freedom of speech does not automatically trump offences, and it does not of itself provide a way to evade the protections that are set out in other pieces of legislation. So the new proposals that are part of this Harmful Digital Communications Bill are consistent, in my view, with the New Zealand Bill of Rights Act and do not impose upon the freedom of expression that is set out in section 14 of the New Zealand Bill of Rights Act.

There will be clear criteria used to determine whether someone has broken the law. For example, the new communications offence would apply only where a person sending the communication intended to cause serious emotional distress to a victim. So there is this element of intent, and where the intention cannot be proved or is not shown, then the provisions of this bill, obviously, do not kick in. I think that is a sensible sort of process for this bill to be considering. The communication would not apply if the communication would not cause serious emotional distress to an ordinary reasonable person in the position of the victim. So there is a test of ordinary reasonableness. Our common law clearly sets out—and has done for many, many years—a test and a strong foundation stone for testing what is reasonable and what is not reasonable.

This legislation, as I said, is a difficult area. It is a difficult area for us all as MPs, as parliamentarians, to get our heads around and to try to grapple with, but grapple with it we must because, as MPs, we are charged with making the hard and difficult decisions. We cannot simply say we are not going to take a role in trying to find a solution when our young people, particularly, are put in harm’s way by the use of modern technology.

I do commend this bill to the House. It is a good piece of legislation and Parliament has done well to consider it as it has done.