Should it be illegal to be a bit of a jerk?

While all but the most tragic of politics aficionados watched the Black Caps grind through a cliffhanger semifinal win against South Africa rather than watching Parliament TV, the Harmful Digital Communications Bill passed its second reading.

The bill criminalises a lot of activities that rightly draw public condemnation. Intimate videos should not be further distributed without the consent of those parties there featured.

But the bill goes beyond that. The scope of the bill is obvious in its 10 guiding principles. Principle 3 says that digital communications should not be grossly offensive. Principle 4 adds they should not be indecent or obscene. Principle 10 says digital communications should not denigrate individuals on the basis of their colour, race, ethnicity, religion, gender, sexual orientation, or disability.


While all of those can be excellent principles guiding one's daily interactions and helping in avoiding being a jerk, should Parliament really be legislating that everyone be nice to everybody else?

Under the proposed legislation, any individual who believes he has been harmed by words said online, as opposed to words spoken or written in print, would first bring his complaint to a new Approved Agency charged with helping everybody be nice to each other online.

If mediation and persuasion fails to bring the troublemaker into line, or if the agency views the complaint as too trivial to deal with, the complainant then has recourse to the District Court. The court can act where there have been repeated or serious breaches of the principles of the bill that are likely to cause harm to the complainant, including being offensive, indecent, racist or sexist.

The court would then be able to issue orders including take-down of the offending material and cessation of conduct; the online content host can be required to help in identifying anonymous online commenters and to take down material. Non-compliance can bring up to six months in jail or a fine of up to $5000.

Let us take some concrete examples. Any blog that provides a comments section could be subject to take-down notices and compliance costs if comments there are deemed grossly offensive to a reasonable person or denigrating on the basis of, say, ethnic origin. While I disapprove of those kinds of comments, and try to police against them on my own little-read blog, should it be illegal to be grossly offensive? And should the law force hosts of forums to do this policing?

Further, what a judge or agency might deem to be grossly offensive to a "reasonable person in the position of the affected individual" might well be the standard manner of conversation within particular online communities that nobody else is forced to join or to read.

On the same day that New Zealand passed the Harmful Digital Communications Act through second reading, India's Supreme Court struck down section 66A of their Information & Technology Act, which similarly banned sending offensive messages.

One Indian newspaper reported widespread popular opposition to the clause: the subjectivity in defining offensiveness had allowed police to arrest people for objectionable political satire and commentary on local politicians.


It would be unlikely that politicians here could prove that tone deaf. But it would be somewhat ironic that a bill justified in part by the online harassment of the Roast Busters' victims could criminalise online harassment of the police officers who failed to pursue the Roast Busters' case. The best we can say about much of this law is that it is unlikely to be enforced.

Dr Eric Crampton is head of research with the New Zealand Initiative