Editorial: Digital communications statute a threat to free speech
Opinion: The Harmful Digital Communications Bill, which is expected to be enacted this week, has been something like four years in the making.
In its progress towards the statute book, however, it has become something of a muddle. Rather than setting up a process for the quick and easy resolution of complaints about harmful stuff on the internet, as was intended, it creates a cumbersome mechanism to solve problems that could be more effectively dealt with by other means.
The purpose of the statute is high-minded enough. It is designed to deter, prevent and mitigate harm to individuals by digital communications. But the thresholds set by the new statute are perilously low and potentially pose a threat to freedom of speech.
The process will provide some protection against meritless complaints. To get redress an individual must first complain to an approved agency (yet to be appointed). The agency will try to mediate a settlement. It will also have the power to reject complaints on various grounds, including that they are trivial, frivolous or vexatious. But even dealing with frivolous complaints can take time and money and if the agency rejects a complaint, a determined individual may still apply to the District Court for a ruling.
Both the agency and the District Court must decide matters according to "communication principles" contained in the new statute. Some of these are ludicrously wide. One, for example, prohibits digital communications that make a false allegation. As those with experience of defamation law know, that can be an area of endless argument, and the new statute has none of the safeguards provided by two centuries of development of defamation law. 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.
A complainant will not be able to obtain any redress unless he or she can show that the offending digital communication has caused harm. But harm has also been given an alarmingly expansive definition by the statute. It is defined as anything that causes a complainant "serious emotional distress", a disconcertingly subjective notion.
The statute requires any decisions to be consistent with rights and freedoms contained in the New Zealand Bill of Rights Act. It is odd the new statute should state this explicitly because those provisions should apply anyway. Presumably it was in recognition of the fact that the new statute potentially threatens those rights and freedoms.
The new statute is a particular menace to mainstream broadcasters and publishers who run websites and who may become a target of a barrage of complaints. The Law Commission recommended that since they were already covered by regulatory bodies well capable of dealing with legitimate complaints they should not come within the scope of the new statute. That recommendation was regrettably dropped. The only hope now is that some common sense comes into the application of the new law.