Free Thoughts – Harmful Digital Legislation

The Harmful Digital Communications Bill looks set to pass into law next week. I have voted against it, and have moved amendments in an attempt to improve the Bill. I want to explain why I oppose this Bill.

The legislation has good intentions – to protect people, especially young people, from online bullying.

But we can’t judge policies and programs by their intentions. It is results that matters. Bad legislation with good intentions is still bad legislation.

The Government faced a difficult task. Any law in this area must balance the need to protect its citizens from harm and the need to protect free speech, including freedom of the press. As stated famously by Voltaire, free speech involves adopting the view that while “I may disapprove of what you say, I will defend to the death your right to say it”.

What does the Bill do?

The Harmful Digital Communications Bill applies to digital communications. The Bill creates an Approved Agency that will receive, investigate and assess complaints against ten communication principles set out as a guide for the Agency and the Court. The approved agency can negotiate between parties to resolve complaints. They do not have the power to issue a takedown order.

More significantly, complaints can be brought to the District Court if they breach one or more of the communication principles and harm is caused. The District Court can order a take-down, correction, right of reply and/or an apology.

A criminal offence is also available to the District Court if a person fails to comply with a District court order or if the person intended to cause harm, caused harm, and it would have caused harm to a reasonable person.

One of the classic ways bad law is made is when you have some dramatic event, to which people rightfully feel something should be done. Politicians feel compelled to do something. Creating a new law is doing something. It’s easy to assume it is the right thing to do.

The RoastBusters case, where the police decided not to charge, was the catalyst for this Bill, and triggered all those steps I have just described.

But later the Independent Police Conduct Authority examined the Roastbusters case and found that police did not “consider all available offences in reaching their decision not to charge.” In short, the case could have, and should have, been dealt with under current law. For that case, we did not need a new law.

But Parliament is nevertheless creating new laws and a new agency.

How then should we deal with serious online problems, especially when criminalisation is on the table? We should start by updating existing laws.

The second part of my proposed amendment attempted to do just that. The particular issue here is ‘Revenge Porn’ – where an intimate recording is taken with consent but shared online without consent. This is a serious issue and the current loophole in the Crimes Act needed to be closed. There is no doubt that this behaviour should be criminal. But the right way to do this is by extending the intimate covert filming provisions in the Crimes Act, and not relying on the “general causing harm” offence in a new Bill.

Only Labour supported my amendment, which was voted down by all other parties.

I also attempted to move an amendment which would have removed the introduction of a new criminal offence for posting a harmful digital communication. These criminal provisions are worrisome for several reasons.

Firstly, the Bill creates a strange asymmetry between the ‘online world’ and the ‘non-digital world’. Conduct that is legal offline would be criminal online. The criminal aspect of the Bill also lacks specific reference to the public interest, and other important defences that are available under existing laws.

There is also a strangely surreal aspect to the law. It is written as though it came before digital communications. The period of time required for a take-down is 48 hours. A counter appeal could leave a total of 96 hours. And this is after a potentially very slow District Court process. The reality is that most internet phenomena, be they Twitter wars, viral videos, or popular memes, go from nowhere to ubiquity and all the way back well within that period.

Then there is anonymity. It’s not difficult to hide one’s identity online. Often that’s the point., for instance, long allowed anonymous people to ask (often cruel and vexatious) questions of each other anonymously.

Then it stopped and required registration. Presumably this was because people want a good experience online – it makes business sense. And this is how the market is quickly responding. The remedies for bullying are more sophisticated than they have ever been before, and we see those remedies coming from those very hosts of online material—the Facebooks, the Twitters, or whatever they may be—just as quickly as the problems emerge. The technological change has provided not only the problem but also the remedy for many.

Finally, criminalisation will likely affect the very people the Bill is trying to protect – young people. Potentially we could see a 14 year old criminalised for something they foolishly posted online.

I also have wider concerns about the Harmful Digital Communications Bill. In particular the effect the ten communications principles, the Approved Agency, and District Court takedown orders will have on Free Speech – a cornerstone of any free society. Our rights are being traded away in this Bill.

Yet, few have even seen the ten vague ‘be nice’ communications principles – principles which might be appropriate if we were about to embark on a school camp, but not written into law. They are listed at the end of this paper.

These principles tell us it is wrong to disclose sensitive personal facts about another individual, to be indecent or obscene, or that you should not harass another individual. It requires only one principle to be breached for you to be reported to the Approved Agency. The next stop could be the District Court, facing a take-down order. Add the intention to cause harm, and actual harm, and you are approaching criminal territory – with the threat of up to 2 years in prison.

Imagine how easily these principles could be inadvertently broken by tweets, online newspaper articles, blogs, emails, posts on Facebook, or comments on websites.

It is also easy to see how the Harmful Digital Communications Bill could itself be used to bully people or the media into taking down legitimate material, especially when they are threatened with the time and process of the district court process.

We note that similar legislation overseas has encountered serious problems. For example, last year New York’s top court struck down a law that made cyberbullying a crime, because it violated free speech.

This Bill will be ineffective in protecting vulnerable kids and will very likely be used as a weapon to curtail free speech.