Friday, June 26, 2015

This law should not be passed

Yesterday Parliament began the third reading of the government's Harmful Digital Communications Bill. While well-intentioned as an attempt to prevent and punish serious cyber-bullying, the law is overbroad, vague, and criminalises speech which any reasonable person would wish to see protected. I would prefer that it did not pass, and was sent back to select committee for another go.

The core problem with the bill lies in the criminal provisions, which provide for a punishment of two year's imprisonment - below National's new jury trial threshold - for causing harm by posting [a] digital communication. The usual defences of truth and public interest do not apply. As TechLiberty has pointed out, this is so overbroad that it criminalises public interest political speech, such as exposing corruption or dodgy dealings by an MP. And as Tim Watkin pointed out yesterday, it applies not just to bloggers, but to journalists - leading to the ludicrous situation that a story would be perfectly legal if broadcast on TV or in a dead-tree newspaper, but punishable by imprisonment if posted on that media organisation's website. For the same content. To give a concrete example, Nicky Hager's The Hollow Men and Dirty Politics were unquestionably works of public interest journalism which should not be illegal in a free and democratic society. But if Hager had published them online rather than in hardcopy, he could be facing jail under this law. That's how bad it is.

While you'd hope that a judge would apply the BORA in such a case and interpret the law consistently with it so as not to outlaw public interest political speech, that's the ambulance at the bottom of the cliff. People should not be charged for such speech. This law allows them to be, and therefore exerts a chilling effect. And that's why it needs to go.

In the committee stage of the bill, ACT and Labour voted for an amendment removing these odious provisions. They were voted down. I'm deeply disappointed that the Greens, who I normally regard as sound on freedom of expression, voted against. And I'd really like to see an explanation why they want to see journalists like Nicky Hager facing charges if they do their work online rather than in hardcopy.

(I should note that part 2 of the bill, which extends harassment law to the internet and makes various other changes, is absolutely unproblematic and should be passed. The problems are all in part 1).