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The Wrong Arm of the Law?

Andrew Cushen, InternetNZ . 02 July 2015, 11:34 am
The Wrong Arm of the Law?

On Tuesday night, the controversial Harmful Digital Communications Bill passed into law. This law now introduces a range of measures that are designed to increase online safety. It also however increases the obligations on a number of different parties, and that's what this post is about.

This law has been developed to provide more tools to deal with harm online. At InternetNZ, we recognise that there is indeed harm occurring and that more needs to be done about it. We've all seen the horrible stories about online bullying and the impact that it can have, including self-harm and suicide. We were all shocked by the "Roastbusters" case which was also one of the primary encouragements for this legislation.

However, we are also concerned about how this law is balanced, and that is what is crucial now that it has been passed. There remains a lot of ambiguity about what the different measures in this legislation will mean in practice - particularly the "Communications Principles" included, which are potentially very broad. This is where the concern about freedom of speech comes from - that if we don't define what is harmful well, that this law may have a chilling effect on the ability to communicate online.

How this plays out from here will depend upon the implementation, and the choice of the "Approved Agency" - more on this later. However, we are hopeful that with an appropriate focus on education, and with appropriate clarification of these communications principles through the Approved Agency, that this will be a helpful addition to curbing harm online. If not, we will be the first to call upon Parliament to amend or remove it.

From here now, there are very practical obligations for New Zealand IT professionals. Some of these are listed below, and with the caveat, I am not a lawyer.


Firstly, there are new obligations for those that host content online in New Zealand. Online content hosts need to be prepared to receive "notices" asking them to remove content that is harmful to people. They need to remove that content in a reasonable timeframe, either according to the process outlined in the Act, or according to their own process. If they do so, then those content hosts have "safe harbour" from liability on the harmful content they may host. In other words, if you host a site that has user generated content on it, start understanding this Act now and designing an appropriate process for gaining this safe harbour protection.


Secondly, there will be a new body that will mediate disputes about what is "harmful" online. This organisation is called the "Approved Agency" in the legislation, and no decisions have been made yet as to whom it will be. That party will be the first port of call for any concerns people may have as to whether information is harmful. They will have a primarily educative role in helping develop further guidance based off the Communications Principles included in the new law. They will provide guidance to all parties about harm online. Now that the law is in place, the Ministry of Justice will be tasked with appointing this Approved Agency and agreeing appropriate funding.


Thirdly, there are a range of different penalties that can be levied for breaching this law, and these matters can go to the District Court. However, it is expected that only serious cases of harm will go to Court in this manner, as the Approved Agency is meant to deal with most others in an appropriately educative manner first. That said, there are criminalisation provisions in this Act. You can be fined or jailed for causing harm online, though again the expectation is that this would only be done in cases of significant harm. That's probably a good thing, so long as it is only used when things get serious.


Fourthly, and finally, what does this all mean for sites not hosted in New Zealand? In law, not a lot. New Zealand law can't compel Facebook and Google to comply. But in practice, the likes of these companies have established processes for dealing with matters like this, and indeed these could work better with the establishment of this regime in New Zealand.

If you're interested in learning more, I recommend the FAQs included on the Government's website. It does indeed deal with many of the questions: 

All in all, we are hopeful that this bill is a helpful contribution to the challenges of harm online without a harmful impact on free speech online. If that keeps people safer online, then that will have been a very good thing.

Andrew is Programme Director for InternetNZ. This post will also appear on the InternetNZ website.


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Ron Segal 08 July 2015, 9:01 am

Thanks Andrew, for a well written and helpful article. As you say, the crux appears to be the interpretation of 'harm', its qualitative and quantitative dimensions. Perhaps the Internet itself could somehow be used to achieve a consensus 'vote' on sanitised instances, rather than some agency in the role of judge and jury.

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