Amy Adams on free speeech and the Harmful Digital Communications

After the Harmful Digital Communications  passed in June the Minister of Justice, Courts, Broadcasting and Communications answered questions in a Live Chat at Stuff.

This gives some insight into what Adams hopes the Bill will achieve.

Is cyberbullying a real problem? Can’t the current law stop this now?

Yes it is. The Law Commission looked at this area in 2012 and found that 1 in 5 NZ’ers up to age 30 had experienced cyber bullying and this is likely to get more common. The current law doesn’t provide victims with a quick and simple means to get harmful content taken down.

I do wonder whether you can ensure that this bill will in no way impede on the right to free speech we have now, as I see this is a worry strongly expressed by some.

The right to free speech has never been absolute but it is impt that we carefully balance the significant harm that can be done by cyber bullying with the protection of free speech. The Bill contains safeguards to ensure this balance has landed in the right place and the select committee looked carefully at that issue and we have worked with stakeholders to make sure the threshold for intervention is appropriately high.

How will digital communications be monitored? What capability does the government/police currently have to monitor social media and online comms?

The Govt will not be monitoring social media around this. The Bill provides options for those who feel their rights have been breached to go to the Approved Agency to look at appropriate remedies and if the matter can’t be resolved directly then the victim can go to the court to seek necessary orders The court will then decide if that is appropriate in that case. It’s up to the victim to initiate action.

How will the act ensure that claims of cyber bullying are legitimate?

The Bill requires that in the first instance the victim goes to the approved agency who can reject any claims that don’t meet the threshold for intervention and only if the claims are legitimate will that agency, or the court, be prepared to take any further steps.

Why does the law only cover electronic communications? Don’t victims of off-line bullying deserve the same protections?

The Bill is designed as a specific response to the particular insidious forms of harm that are possible through the internet given the ability for digital communications to be anonymous and spread to potentially millions within short periods of time. Off-line situations are different in harm caused and are covered in different ways.

A friend and I were discussing this Bill the other day. She has a disgruntled ex-partner that she is afraid might post private photos of her online. Would this cover that circumstance? Also, does it only apply to communications after the date of assent or is there a retrospective application for current victims of cyberbullying?

Yes the prospect of what is called “revenge porn” is one of the key issues the Bill seeks to address and the circumstance you describe would indeed be covered however the Bill will only apply to behaviour after the law takes effect. The criminal offence part of the Bill will start immediately for the worst sorts of activity however the approved agency will take a little longer to establish.

Re the school sector, how will this complement the services of organisations such as Netsafe?

The work Netsafe are currently doing with schools and others to educate around the harm that can be caused online and how to be safe is critical and this work will be a core part of the Approved Agency’s mandate.

How does this law prevent cyber-bullying from offshore? If I run a server in NYC and use it to twitter-abuse max key will i get in trouble? How does this bill protect little max?

If the Court determines that the post is unacceptable in terms of the Bill then orders to remove the content can be made against the person who has written the post and/or the website host. If either of those is onshore the issue is straightforward, if they are offshore then the issue is harder but most website hosts are responsible and seek to comply with court orders from jurisdictions like ours.

This is a fundamental right of free speech that is being stolen from from New Zealanders with no mandate from the people who elected this government, despite the vaque assurances. Why is it we get binding referendums on non issues like a flag change and not this one?

Most issues that Governments have to provide for do not justify referenda. Constitutional changes such as the flag are often considered to be the exception. The mandate to pass this Bill arrives from the election of us as Government and we did campaign on this issue and our intention to pass this law if elected. Furthermore the Bill has to receive the support of a majority of parliament (we are a minority Government) and to date has received overwhelming cross party support.

Who or what will likely be the Approved Agency?

That is a process we will have to go through post the Bill’s passage. I will run a fair and transparent process to ensure that the best organisation for the role is selected. They will need to show they have strong skills, knowledge and experience in this area and high levels of public trust.

Will anonymity online still be protected? Does the government see the importance of having anonymous online communities and protecting privacy online?

The anonymous nature of any contributions is not an issue under the Bill, the issue is whether the contribution breaches the core communication principles and causes unreasonable harm. If that is the case then whether or not the post is anonymous, the ability to take action will exist.

When you have two diametrically opposed bloggers as Whale Oil and The Daily Blog condemning this legislation, doesn’t that send strong signals that the proposal as written has serious flaws that need addressing?

I am of the view that the allegations as to how the Bill will operate are in some cases overblown and baseless. The law has careful safeguards and I have great confidence in our courts to ensure that action is only taken where appropriate and that robust exchanges of opinion (including political comment) will continue to be a common occurrence in our society.

Why does the criminal offence not provide a defence for causing harm that may be justified? Some of the on-line criticism of the so-called roast-busters probably caused them serious emotional distress, but I’m uncomfortable with making that type of criticism of the roast-busters a crime.

The Bill specifically allows the court to consider the circumstances of the case, the truth of the stmt, any public interest in the stmt, the conduct of the person complaining etc in making any take down order. In terms of the criminal offence these matters are considered as part of any decision to prosecute and by the judge in their handling of the case.

I’m concerned that this casts a very wide net. Will media be subject to this?

The law applies to everyone however it is highly unlikely that media operating in accordance with existing journalistic standards would ever fall foul of this law. If they did however do so then it is right that they be subject to the same approach as everyone else.

While the courts might resolve things, just the mere threat of being taken to court is often going to be enough of a threat to shut down healthy debate. Or is that not the case?

The issue of balancing freedom of speech with the need to better protect NZ’ers from some of the appalling tragedies we have unfortunately already seen was the core issue throughout the Law Commission work and the development and passage of this Bill. It is a new approach for NZ so I can understand the debate, however I, and those who have worked closely on the Bill are of the view that we have that balance right and that healthy debate will not be inappropriately stifled.

Time will tell how this Bill works in practice.

Note: questions and answers are slightly edited to de-personalise.