Chris Barton 's Opinion

Technology columnist for the NZ Herald

Chris Barton: Harmful digital talk and unintended consequences

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Could Justice Minister Judith Collins' recent Twitter outburst led to a prosecution under a new bi9ll aimed at stopping online bullying? Photo / Mark Mitchell
Could Justice Minister Judith Collins' recent Twitter outburst led to a prosecution under a new bi9ll aimed at stopping online bullying? Photo / Mark Mitchell

Could Judith Collin's recent outburst on Twitter against press gallery journalist Katie Bradford have seen her prosecuted under the proposed Harmful Digital Communications Bill?

Could the Justice Minister, who has vowed to stomp out cyber bullies - "Your behaviour is not acceptable" - have been hoist on her own petard?

Under the proposed Bill someone who causes harm by posting a digital communication commits an offence if:

(a) the person posts a digital communication with the intention that it cause harm to a victim; and

(b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim;

and

(c) posting the communication causes harm to the victim.

On the face of it, the Minister scores a yes on all three counts. She posted a communication calling Bradford a liar, another suggesting she was biased and one urging exposure of her approaching Collins, the then Police Minister, to help in her ex-partner's job application for the police. If such a case ever came to court the Bill directs that, in determining whether a post would cause harm, judges may take into account any factors they consider relevant, including:

(a) the extremity of the language used:

(b) the age and characteristics of the victim:

(c) whether the digital communication was anonymous:

(d) whether the digital communication was repeated:

(e) the extent of circulation of the digital communication:

(f) whether the digital communication is true or false:

(g) the context in which the digital communication appeared.

Here, the Minister seems to be caught on at least three counts - her comments were repeated and widely circulated, and, as it turns out, weren't true causing Collins to apologise. Theoretically, Collins could be liable for up to two years' imprisonment.

Of course this is hypothetical and in this instance Collins' tweets would be seen by many as part of the cut and thrust between politicians and journalists and nothing to get worked up about.

But it does illustrate how rushing to make laws in the digital realm which are different from laws in the real world can have unintended consequences. It also lays bare society's hypocrisy towards bullying - how its commonplace and often disregarded in parliament, the workplace and at our schools, yet greeted with outrage and condemnation when it spills onto YouTube, Facebook and Twitter.

Thomas Beagle from Tech Liberty gives a much better example of unintended consequences. "Someone breaks into my house and assaults me and steals my possessions. I, however, have video footage of them doing so that clearly shows their face. I am understandably very angry about what has happened and I post the footage online saying that I hope we can catch and punish this scumbag."

Not an unreasonable thing to do. But according to the Bill he "caused harm by posting a digital communication" - a posting done with the intention that it cause harm to the victim, and one that would have caused harm to them.

"This offence criminalises all speech that causes harm, regardless of whether it has any other value - but only if it's done digitally," says Beagle.

Beagle highlights two issues: how the bill falsely differentiates between digital and non-digital speech and its underlying assumption that all harm done through speech is bad and should be stopped. Patently wrong.

"Freedom of expression does not guarantee that speech will never cause harm," says Beagle. "Indeed, one of the reasons freedom of expression is so important is because of the power of speech to reveal what was hidden, to influence and to change what people think." It's the use of this power, which in some instances will harm people, that Beagle argues we should protect.

Take, for example, someone posting information that shows a politician is corrupt. It's certainly going to harm the politician, but in doing so also provides a significant value to society. Yet under the bill, it's the poster, not the politician that who be prosecuted.

There's no doubt that that this bill is well intentioned in trying to find ways to stop trolls and other internet low-life harming vulnerable people. And it's clear too that the way the internet can virally spread harmful communications poses significant issues, particularly in the way it can amplify the harm. The bill also has some very good aspects, such as the Approved Agency which will be the first port of call for trying to get harmful communications taken down. Such an agency could be a powerful ally in getting large organisations such as Facebook, Google or other hosting services to remove harmful material - a process that's normally a nightmare of online helpdesk hell.

But as seen in the recent European Court of Justice judgement about the so called "right to be forgotten", rushing to regulate the internet is fraught with unintended outcomes. Such interventions, says the Observer's John Naughton, ultimately come down to the same question: is this the thin end of the censorship wedge?

James Waterworth has no doubts "This ruling opens the door to large scale private censorship in Europe. It may open the floodgates for tens of thousands of requests to have legal, publicly available information about Europeans taken out of a search index or links removed from websites."

The Harmful Digital Communications Bill, which looks set to pass into law, is likely to have a similar censorship effect. In its minority view on the bill, Labour says while it supports the intent of the bill it's worried about the "unnecessarily fast passage of this bill through the select committee", problems about the definition of harm, the impact of the new criminal sanctions on young people and the lack of detail about the role of the Approved Agency.

When she announced the bill last year Judith Collins said she was proud New Zealand is "leading the world with our response to this global problem". Sadly, the bill in its current hastily drafted form is leading the world in what not to do. And if the Minister starts tweeting again, she'll have to be very careful.

Chris Barton

Technology columnist for the NZ Herald

Chris Barton is a freelance writer with 28 years experience in newspapers and magazines. He's been writing about technology since 1986, was the founding editor of New Zealand PC World and has won numerous media awards, including, in 2009, journalism's top prize, the Wolfson Press Fellowship to Cambridge. He has a Master of Architecture, teaches part time at the Auckland School of Architecture and is an architecture critic, winning, in 2014, the Canon Media Awards Reviewer of the Year.

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