NZ POLITICS DAILY: Dangers for democracy in today’s cyber bullying law

Every MP, bar one, will vote this afternoon for a piece of legislation that seeks to protect those being “harmed” by material on the internet. But the Harmful Digital Communications Bill is being widely criticised as dangerous in the way it seeks to regulate online activities. So is online democracy under threat?

Could Patrick Gower be taken off the internet? Of course this is a ridiculous question – with many possible replies – yet it’s also a useful question posed by opponents of new cyber-bullying legislation that will be passed today in Parliament. It was posed on Twitter by the biggest critic of the new bill, blogger No Right Turn (@norightturnnz), who tweeted to Gower “Did you know that if the harmful Digital Communications bill passes, your job will be illegal?” – see my blog post, Top tweets about the Harmful Digital Communications Bill. 

Essentially the argument made by critics is that the new laws against cyber bullying have the potential for eroding free speech online, especially threatening the expression of views that challenge the powerful or the corrupt. The No Right Turn blogger says that the new legislation being passed today includes criminal provisions which means the new law could “effectively ban serious TV journalism” – see: Much worse than I thought. 

Here’s the elaboration: “the law considers radio and television to be "electronic communications", and hence "digital communications". Which means that when Paddy Gower exposes some politician's misdeeds on 3News, with the intent of informing the public so they can end his career, he could go to jail for it.  This law isn't just a threat to the internet – its a threat to our democracy”.

In another post, the blogger uses the example of Nicky Hager’s Dirty Politics, and suggests that “if Hager had published them online rather than in hardcopy, he could be facing jail under this law” – see: National wants to jail people who expose politicians. No Right Turn says “the law is overbroad, vague, and criminalises speech which any reasonable person would wish to see protected”.

Such arguments are not new. In the Herald last year, Chris Barton put forward the same argument: “Take, for example, someone posting information that shows a politician is corrupt. It's certainly going to harm the politician, but in doing so also provides a significant value to society. Yet under the bill, it's the poster, not the politician that who be prosecuted” – see: Harmful digital talk and unintended consequences. 

Media under threat
Potential threats are increasingly being acknowledged by those in the media, who see significant unintended consequences of the legislation for newspapers and wider media. Today’s Press editorial condemns the new legislation as being a muddle that could cause great harm – see: Digital communications statute a threat to free speech.

The editorial points to woolly definitions in the legislation, especially the subjectivity of what causes “harm” and “offence”, and it suggests that the new rules could be used to inhibit free speech about religion. It also complains that the Government has ignored the Law Commission’s recommendation to exempt mainstream broadcasters and publishers from the scope of the rules.

The must-read analysis comes from TV3’s executive producer of The Nation, Tim Watkin – see: Je ne suis pas Charlie say NZ MPs: eroding free speech. He says “exercising your right to free speech in New Zealand is just about to get a bit harder”. 

Summing up the problem, Watkin writes that the legislation is well intended, but “its attempt to tackle bullying is so cack-handed and ill-drafted, that it may undermine journalists' ability to critique, cartoonists' ability to lampoon and satirists' ability to just take the mick”.

What is “offensive” anyway?
The new law does have very good intentions. It seeks to deal with some of the horrible, damaging and unfair material that is published online. But how do we decide what is unfair? Whenever the state seeks to determine what should and shouldn’t be published, there is difficulty deciding where to draw the line. 

Often the concept and criteria used is that which is deemed “offensive”. But what happens when “one person’s obscenity is another’s work of art”? Professor of Law, Ursula Cheer, looks at such questions in her very thorough and thoughtful blog post, Harmful Digital Communications Bill: panacea or problem?

Among her concerns are that, although the new law isn’t likely to lead to widespread censorship, there could still be a chilling effect on free speech. For example, she says that it might be easier for some internet providers to simply take down any material that is complained about, rather than go through the processes of determining the validity of a complaint. She also points out that the police will have wide discretion on whether to prosecute or not. You can see Cheer’s five-minute interview on The Nation: Law Professor Ursula Cheer. 

Also questioning the concept of “offence” is the head of research with the New Zealand Initiative, Eric Crampton, who says that it would be good if everyone is nicer in society, but there are problems when the state makes it mandatory – see: Communications Bill aims to make everybody nice. 

Alternatively, shouldn’t the Government and authorities actually concentrate on using existing laws and mechanisms for dealing with what is offensive or harmful? This is the question put in Chris Barton’s excellent feature, A digital bill that's far too broad. He puts forward many criticisms of the new legislation and suggests that some of the alternatives are already working well.

The only MP likely to vote against the controversial legislation is Act MP David Seymour, and he argues that there are other means that could be used to improve the situation. For example in Nicholas Jones’s article, Cyberbully law 'too vague', Seymour says, “Loopholes could be closed by amending existing laws, he said, including extending the intimate covert filming provisions in the Crimes Act to cover "revenge porn".”

Political populism from nearly all parties
The new legislation has been introduced alongside the so-called Roastbusters controversy. Because of this, a “law and order” populism has pervaded much of the debate over the issue. Unsurprisingly, all the parliamentary parties – except for Act – are backing the legislation. Although originally introduced by Judith Collins, it is now being pushed though Parliament by Amy Adams, and you can see her 12-minute interview about it on The Nation – see: Justice Minister Amy Adams. For a transcript of the interview, see: Amy Adams defends anti-cyber bullying bill as critics say free speech will be criminalised. 

Labour is also voting in favour of the new bill, despite having "grave" concerns about it – see Daisy Hudson’s Controversial cyberbullying law one step closer. 

Why are so many politicians supporting what they know is poor legislation? According to Tim Watkin, “New Zealand MPs are so keen to be seen to be "doing something" about cyber-bullying that they are about to pass a poor piece of law that will do something terrible”. He says “it's either stupid politics or cynical politics” – see: Je ne suis pas Charlie say NZ MPs: eroding free speech.

Libertarians of the right have been relatively silent on the problems and dangers of the bill. But blogger David Farrar has registered his concern – see: 

Harmful Digital Communications goes to committee stage, and Cameron Slater has his dissenting position – see: Is the National’s Harmful Digital Communications Bill their own Electoral Finance Act?, and I have many things to say that will always “harm” someone. 

Finally, MPs have tried to bolster support for the new clampdown by airing some of the tweets they have received. These are read out by the politicians in Aimee Gulliver’s MPs read mean tweets. But are they really that offensive? One tweeter, ‏@Dianne_Khan responded to say, “Just watched the mean Tweets thing, and many of them were just rhetoric, not mean. There are plenty of worse out there, often by MPs!” and “What would interest me also is hearing others read the mean Tweets that some of those MPs have sent, particularly Ms Collins”.