Harmful Digital Communications Bill passes: its key elements

The Harmful Digital Communications Bill passed its third and final reading last night.

Its criminal and "safe harbour" provisions will come into effect once the legislation is given royal assent, expected Monday morning. Work will then begin on appointing the approved agency (see below).

The bill's key elements:

Harmful Digital Communications Bill: key provisions

• A fine of up to $50,000 for an individual or up to $200,000 for a body corporate, or up to two years’ jail for posting or sending a “harmful digital communication” – aka cyber-bullying with a post likely to cause distress. The bill covers racist, sexist and religiously intolerant comments, plus those about disabilities or sexual orientation;
• Up to three years’ jail for the new crime of incitement to suicide; 
• An “approved agency” will advocate on behalf of complainants. The aim is that the agency will be able to make direct contact with web publishers and social media sites like Facebook and Twitter, where a member of the public often has trouble getting heard (the Law Commission has recommended NetSafe be the approved agency; the non-profit NetSafe’s backers include InternetNZ, the NZPolice, the Ministry of Education and private companies); 
• If the approved agency makes no headway, a complaint is escalated to a District Court judge; and
• Web publishers can opt in to a safe-harbour provision, protecting them from liability (and arguably also crimping free speech) if they agree to take down allegedly offending material on demand or at least within a grace period of 48 hours.

The bill faced criticism from everyone from Labour's Clare Curran, who argued the safe harbour provision made a mockery of the bill's intent, to ACT's David Seymour, who said it would criminalise children over 14 and undermine free speech.

But in the end it passed easily, 116 to 5 with only Mr Seymour and four Green MPs (who split from their leadership, with permission) voting against it.

The legislation drew immediate flak on social media.

Former InternetNZ chief executive Vikram Kumar wondered if Sean Plunket (cleared by the Broadcasting Standards Authority over his comments about author Eleanor Catton) would have wound up in jail under the HDC. As with any new law, it will take precedent-setting cases to define its boundaries.

Tech Liberty co-founder Thomas Beagle said he was disappointed the "flawed" law had passed. The Council for Civil Liberties executive committee member has criticised the bill for undermining free speech, and questioned whether many of its measures will prove practical. He has also asked why the online world should have different rules over comments and defamation than the offline one (see more on the debate over the bill here).

"No law is perfect"
“No legislation is perfect, and this is no exception," current InternetNZ chief executive Jordan Carter says.

"Like all law that applies in a fast-moving technology environment, the risk is of unintended consequences – or chosen balances of rights not working out in practice.

In recognition of this, InternetNZ calls upon parliamentarians to keep a careful eye on the implementation of this legislation to ensure that appropriate balance is maintained.

"We must all remain vigilant that we have appropriate responses to online harm without damaging free expression.

“I know many in the internet community will be keeping a close eye on this. Parliament and the Government will be too. 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."

Mr Carter says its also important for the government to begin an education campaign and appoint the approved agency as soon as possible.

“The sooner the Approved Agency is selected and the sooner the educational elements of this policy are in place, the better,” Jordan Carter says.