Do no harm

by The Listener / 09 July, 2015
The principles that underpin our newly minted cyber-bullying law are so loosely defined as to endanger free speech.

The internet has transformed people’s lives, in many ways for the better. But it has also given cowards and bullies powerful tools with which to make others miserable. In recognition of this ugly phenomenon, a new vocabulary has been created: “trolls” for mischief-makers who stalk the internet looking for opportunities to post malicious comments; “revenge porn” for intimate video footage posted online to cause hurt and humiliation.

In an attempt to control antisocial users of what is misleadingly called social media, Parliament recently passed by 116-5 the Harmful Digital Communications Act. That the cyber-bullying legislation was opposed by the oddest of bedfellows – four Green MPs and Act’s David Seymour – gives some clue to the confounding complexity of the issues raised by the new laws. Outside Parliament, too, the legislation generated debate that cut across the usual ideological lines.

No one argues that the act was not motivated by good intentions, nor that cyber-bullying is a cruel and perverse by-product of the internet. But that’s as far as the consensus goes. The main concern on the part of the act’s critics is that a knee-jerk “something must be done” mindset has prevailed, potentially at the expense of freedom of expression. Opinion polls show that the public thinks cyber-bullying should be curbed, but of course people will say that. The question is, at what cost?

Under the legislation, a statutory agency acting on behalf of complainants may be able to get offensive material “taken down” from the internet. Where a complaint can’t be resolved, district court judges will have powers to make orders against the originators of offensive content and websites that have published it. For cyber-bullying of the most extreme kind, the law provides for fines (up to $50,000 for an individual and $200,000 for a corporate body or up to two years’ jail.

The architects of the act say it strikes a careful balance between the need to protect freedom of expression and the need to reduce harm. But the principles underpinning the legislation are loosely defined – dangerously so.

Those principles require, for example, that digital communications should not be threatening, intimidating or menacing; that they should not be grossly offensive to a reasonable person in the position of the affected individual; and that they should not denigrate an individual by reason of colour, race, religion, gender, sexual orientation or disability. A lot will depend on how these words are interpreted. (Auckland “social adviser” Pebbles Hooper would almost certainly have fallen foul of the principles for her insensitive tweet about the victims of an accidental gassing, but the outcome in that instance – which included her loss of a job – suggests the internet can be self-policing.)

"Harm” is defined in the act as “serious emotional distress”, a highly subjective judgment. All pithy comment is offensive to someone. Could the new law potentially criminalise all speech that upsets the sensitive? Justice Minister Amy Adams says no, but doesn’t sound wholly convincing. Similarly she seems confident that well-established forms of satire – newspaper cartoons, for example – won’t cross the harm threshold, but we can’t be sure. The truth is no one will really know until the law has been in place for a while.

It’s hard to see how the new laws could not have an inhibiting effect on free speech. One possibility is that web publishers will be swamped with complaints from people feeling wounded by comment that previously would have been considered part of the normal, robust cut and thrust of debate in an open, democratic society. Websites may play it safe by refusing to publish, or taking down, edgy content rather than risk becoming embroiled in time-consuming complaints procedures – or worse, criminal charges. Truth and public interest – factors that courts take into account in defamation cases – will be no guarantee of protection.

In time, some of the new law’s uncertainties may be settled by the courts, which have a tradition in New Zealand of defending free speech. The Bill of Rights Act, which guarantees the right to receive and impart information and opinion of any kind and in any form, could prove to be a powerful counterweight. But in the meantime, a lot of damage may be done.

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