Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Members, we now come to Part 2. This is the debate on clauses 8 to 12, “Take-down notices for objectionable online publications, offences, and regulations”. The question is that Part 2 stand part.

Part 2 of the bill amends the Act to provide Department of Internal Affairs Inspectors of Publications with the power to issue take-down notices when they identify objectionable material online. This power would be in addition to the inspectors’ current practice of requesting voluntary take-down of content in individual cases. Unlike other jurisdictions, we have had to rely on voluntary requests to remove illegal online material. This change will provide certainty for Government and online content hosts by enabling statutory authority and accountability when a take-down notice is issued. An online content host that does not comply with a take-down notice as soon as reasonably practicable would be committing a breach and subject to a penalty of $200,000.

The bill also provides a definition for the term live stream, which notes that “livestream means to transmit over the Internet or any other electronic medium images or sounds as they happen”. This amendment makes it clear that a live stream of objectionable material is captured under the Act. Furthermore, the bill makes it an offence to knowingly live stream objectionable content or share objectionable live streamed content. This offence is not intended to have extraterritorial application. This offence applies to the individual or organisation that live streams the content, with the penalty of imprisonment for a term not exceeding 14 years for an individual and a fine not exceeding $200,000 for a body corporate.

Thank you, Minister. I’m going to go back to this “objectionable” part, and specifically into new section 132C, where we’re actually talking about making it an offence to live stream material where we are knowing or have reasonable cause to believe that it is objectionable. And this is where I come back to my earlier questions about people, perhaps, live streaming or sharing a link to a live stream, not realising the content of that stream, of it being objectionable. And while I now recognise that there is a rapid assessment that would allow a take-down order, this bill would actually make it an offence to live stream such material before it has been made objectionable or even noted as such. So people are actually live streaming content that has not yet been made objectionable but are committing an offence in doing so if there is reasonable cause to believe that they knew about that. So I’m just wondering, Minister, how you could allay some fears of people who just go about live streaming things, not realising what the content is at that time. How can we allay their fears as to creating or committing an offence?

I think that’s a really good question, and I want to go back to that term “objectionable”, which is defined in the principal Act as it stands now. We are talking about some of the most abhorrent media that any of us probably couldn’t imagine. People will know that they are live streaming objectionable content because we are talking about abhorrent. I don’t want to be too definitive in my example here, but to give a broad definition of what that might look like, we are talking about terrorist material or we’re talking about child sexual exploitation. So for example, a young child might be being abused in a pretty abhorrent way, and someone else might be standing there live streaming them. Currently, that person live streaming would not be committing an offence of live streaming. They know that that is objectionable. That’s the level that we are talking about.

Thank you, Minister, for that response. What about those people who are sharing a live stream, as new section 132C, inserted by clause 10, is specifically about sharing objectionable live streamed content? Rather than the person who is delivering the content themselves, it’s those innocent people who say, “Well, that person’s a friend of mine on Stalkbook, and not Facebook, and I will share their content, because usually it’s been quite good.”, but they’re committing an offence in doing so.

The bill will not penalise all instances of live streaming objectionable content. There is a threshold, as defined in the bill, that needs to be met, and I’d just like to read this particular part here. Individuals would commit “an offence if (a) they livestreamed content knowing or having reasonable cause to believe it [was] objectionable; or (b) [shared] content, or information about how to access content,”, and they need to meet these two points: “(i) knowing or having reasonable cause to believe that the content is objectionable; and (ii) with the intent of promoting or encouraging criminal acts or acts of terrorism.”

So there’s quite a high threshold there. It’s not just about “Oh, this is my friend.”, or “I’ve shared something from my friend.”, not realising as they get through the stream that it is objectionable. There are those two bullet points that need to be met which makes sure that that protection is afforded to those people.

Thank you, Madam Chair; thank you, Minister. I just wondered—I sat in on the select committee and I think we all agree it was all very technical and complicated at times, so for anyone, a layperson, could you please explain just the general process? If an objectionable live stream is occurring, how does the report mechanism work, how does the take-down notice work? Just in simple layman’s terms.

CHAIRPERSON (Hon Jacqui Dean): I’m seeking a call.

Further to that, Minister, you’ve talked about the fact that there’s no extraterritorial application. I know that was a concern for many. I just have a couple of questions on that, in that how does one police multinational platforms like your Facebooks and your YouTubes? And secondly, how will this bill prevent those sharing objectionable material who are actively averting the law by using virtual private networks?

So, Madam Chair, I wanted to just double-check on that because I think it’s really important that we get that, as you say, in layman’s terms, or laypeople’s terms, I should say. Because the member is so right—it is incredibly technical.

So, basically, right there we can—and this is simplifying it a little bit as well in this particular instance, because it is quite complex, even though it can be quite quick. So the department would ask the chief censor to make an interim classification. At that particular point in time, that interim classification is able to then determine the take-down notice, and so the department will be working on the take-down notice, and that gives them time then to solidify that interim classification into that.

I didn’t quite get the member’s question about the extraterritorial—I heard that in the background as I was listening there. I wonder if the member would mind repeating that for me, please.

💬 Nicola Grigg: Certainly. I’m sure it falls within the Standing Orders, Madam Chair?

If the member seeks the call, it does.

💬 Nicola Grigg: May I please, Madam Chair?

Nicola Grigg.

Thank you, Minister. I understand that you were talking at the time and fully appreciate that—there’s a lot to take on board—but it was around the extraterritorial nature of the application in that, how will we, as a jurisdiction here in New Zealand, police the multinational platforms like the YouTubes and the Facebooks when a live stream could potentially be being streamed from offshore? And, slightly related to that, how will this bill prevent those sharing objectionable material or live streaming it if they are trying to actively avert the law by using virtual private networks?

Thank you, Madam Chair. I’m really happy that you could re-ask that, because it is a really important point there, that this work doesn’t happen in isolation, in New Zealand alone. We have international partners that we are working with on this material, and I think the member might have been part of a group that went over to the department and had a look and a talk with the people who are working in this area, and an understanding of just how wide this work is and the amount of collaboration that happens internationally. So the international partners work together.

The take-down notices here are really important, because it sends a signal from New Zealand law, which we haven’t had before because it’s been that voluntary process. But this take-down notice, as it stands at the moment, will send a message that that’s New Zealand law, and our international partners will be able to work in that area with those big players that are based internationally as well. I know that the member will get a sense of this from the work that you have done going over to the department and talking with those people, but the work that they do is incredibly important, and is a real credit to the people who are working in that area.