Getting back at the mean tweeters

The new bill designed to crack down on cyberbullying has been criticised as a threat to free speech.

The Harmful Digital Communications Bill, passed by Parliament this week, creates a new criminal offence of intentionally causing harm by posting a digital communication. Serious offences can be punished by up to two years in jail or fines of up to $50,000.

Justice Minister Amy Adams says the law changes will “prevent and reduce the potentially devastating harm caused by cyberbullying and other modern forms of harassment and intimidation”.

The bill, in various forms, has been around for a couple of years. Back in 2013, satirical site The Civilian took it on, suggesting it could lead to a crackdown on mainstream news sites.

“The Harmful Digital Communications Bill, which Justice Minister Judith Collins unveiled in April, would make it illegal to post material online that is “grossly offensive, indecent, obscene, menacing or knowingly false,” something that New Zealand Herald Editor Tim Murphy says covers “roughly 80% of what we do”.

In a non-satirical editorial, The Press argues the law is a “menace” to broadcasters and publishers who may come under a “barrage” of complaints. “A similar risk arises from the prohibition on a communication that may be 'grossly offensive to a reasonable person in the position of the affected individual'. It does not take much imagination to see how that provision could be used by a deeply religious person to resurrect blasphemy laws that have largely (and properly in a secular society) fallen into disuse.”

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In a live chat on stuff.co.nz, Amy Adams says she has confidence in the courts to ensure that action is only taken where appropriate. She also says that “allegations as to how the bill will operate are in some cases overblown and baseless”.

MPs also came out this week about the mean things people say about them on Twitter. Which, it has to be said, weren’t really even all that mean.

In a post titled “and then John Key came for the internet” the Daily Blog’s Martyn Bradbury argues that any comment someone feels “hurt by” is now criminalised.

“While there certainly needs to be better customer service from social media providers to be able to easily block and stop trolls, making speech illegal is an open door for abuse. If someone defames you on social media, you have legal avenues, but to be able to criminalise speech based on as little a threshold as causing ‘harm’ to the ‘victim’ seems ripe for interpretation by those wanting critical voices silenced.”

The Green Party allowed a split vote among its MPs on the bill, with some arguing the importance of keeping people safe from cyber-bullying. Four Green Party MPs will be opposed the final reading. Gareth Hughes, Russel Norman, Julie Anne Genter and Steffan Browning have concerns about the possibility this legislation impact on New Zealanders and their right to freedom of speech.

The ACT party also voted against the legislation, with David Seymour saying creating a new law because of a big event (in this case, the ‘Roastbusters’), almost always leads to bad law.

“There is also a strangely surreal aspect to the law. It is written as though it came before digital communications,” he writes. “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.”

David Seymour gets plaudits from Pundit blogger (and executive producer of TV3’s The Nation) Tim Watkin. He argues the bill is “cack-handed” and ill-drafted. “National is exploiting public fear to force through a terrible piece of law that introduces new criminal charges around cyber-bullying. And such is Labour's fear at the moment, it is meekly going along with it, rather than standing against it for the sake of free speech.”

Whale Oil blogger Cameron Slater, often accused of being a cyberbully himself, agrees that he has many things to say that will “harm someone”, and calls the bill an exercise in futility.

“There are plenty of laws that already apply to the sorts of behaviour that we do not wish to accept. Threatening harm, threatening to kill, harassment, criminal conspiracy… if these need a little tune-up for the 21st century so that scumbag lawyers can’t get their clients off just because they used a computer instead of a telephone, then let’s look at that.”

As well as opposition across the political spectrum, there’s opposition from the proponents of free speech. Tech Liberty co-founder Thomas Beagle wrote back in May that the Bill sets a different standards for online and offline speech. It also, he writes, fails to recognise that some harmful communications might not be bad. “For example, the idea that someone might be fined or jailed because they harmed a politician by posting online proof that the politician was corrupt is just horrendous.”

Then there’s the question of what exactly is offensive or harmful. The NZ Herald’s Chris Barton argues the bill is far too broad. “The Bill views technology as the problem rather than the behaviour and fails to recognise existing protections and whether actual offences are being committed. Bad behaviour is bad behaviour - online and offline.”

Internet NZ has a similar take, and is now calling on the politicians to keep a careful eye on the implementation of the legislation.

“I know many in the Internet community will be keeping a close eye on this. Parliament and the Government will be too,” says the organisation’s chief executive, Jordan Carter. “That is as it should be. If there is any sign that the good intentions behind this legislation are instead leading to unacceptable restrictions on people’s right to communicate, then quick changes will be important.”

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