Thursday, August 20, 2015

Harmful Digital Communications Act indeed

Turn away for long enough and I find the NZ government does something outrageous to curtail freedom and to expand Nanny State, sure enough it has with the Orwellian sounding "Harmful Digital Communications Act".  Even if I supported it, if I was a Minister getting that title passed over my desk by a Ministry of Justice manager, I'd have tore a strip off of her or him for having had a complete lack of any education in either literature or history to give ANY legislation such a title.

The purpose of the Act as well has shades of Big Brother:

"to deter, prevent, and mitigate harm caused to individuals by digital communications; and
provide victims of harmful digital communications with a quick and efficient means of redress"

It's a curious post-modernist trend for laws to be created not to protect rights based on well worn principles of individual rights and freedoms, property rights, contracts and torts, but to "prevent harm" - to have laws to sanitise life so that "everyone" is protected.

However, the term "harm" doesn't mean physical harm.  There is no need for new laws covering an actual infringement of your body (although the digital dimension does justify ensuring laws protect your property and covers contracts and torts), for such laws exist - in abundance - including ones to protect you from yourself.  The harm being covered is, what "The Flight of the Conchords" would say are "hurt feelings".

Being offended, is to be harmed.  To be distressed by what someone else has said, is to harmed.  This goes beyond defamation, which is - indeed - damage to one's property in the form of your reputation. It's an almost childlike drive to make everything structured and inoffensive.  In the UK, it came out in its most absurd form a few months ago with the National Union of Students Women's Conference saying:

"Some delegates are requesting that we move to jazz hands rather than clapping, as it's triggering anxiety. Please be mindful"

I didn't make that up.  If someone is a little bit upset, then everyone else must conform to avoid upsetting that person.  It's the radical so-called "progressive" identity politics champions being manufactured by post-modernist university departments out of air headed students raised on this form of Newspeak. 

So the Harmful Digital Communications Act is about "serious emotional distress".  It is now a crime in New Zealand to make someone else upset, digitally (now now!).  I know I did that when I separated from my wife, thankfully I didn't do it by text message today, or I might be in trouble.

However, let's see how you might get into trouble, because Amy Adams, the National Party, the Labour Party, the Maori Party, NZ First and much of the Green Party thinks your freedom of speech should be curtailed, in case it distresses someone.  Kudos to ACT's David Seymour for standing up to it, and indeed Russel Norman, Gareth Hughes, Julie-Anne Genter and Steffan Browning for having thought about it.  

I know this legislation has had much coverage online for what's bad about it, but it deserves constant attention, and every single MP who voted for it needs to be exposed for their moronic endorsement of it.  It's a disgrace to all who voted for it, and if anything indicates clearly how utterly incompetent they are in being able to apply principle and concepts to problems and issues, it is this law.

I encourage all to push the boundaries of this law to expose this incompetence.


The Act defines the term "intimate visual recording" to demonstrate that the English language is a lost cause in New Zealand, with the word "toileting" having been exuded because MPs can't cope with the words urination and defecation. The mere fact that it was decided to have to define this should raise alarm bells, when the issue itself can more clearly be defined on principle as one of property rights.

What does the Act do?  It sets out, oddly, a set of "communications principles", which are the post-modernist lawyer's way of not clearly defining anything.  However, many of those principles are unreasonable in any free society.

Principle 1
A digital communication should not disclose sensitive personal facts about an individual.

Really?  Why not?  You can write a letter about someone having committed a crime, or cheating on you, or having no money, or being indeed anything else.  Why should this be a crime?  It is quite one thing to have legal protection for you supplying personal information to the state, or to any other organisation under contract, another to "prohibit" "disclosing" sensitive personal facts.  Can a parent not send to the other parent information about their child's weight?

Principle 2
A digital communication should not be threatening, intimidating, or menacing.

So what is threatening? Shouldn't that include a threat to commit a violent or sexual offence upon a person?  Is a threat "I'm going to leave you"  or "I'm going to tell everyone what a prick you are"? Sections 306 to 308 of the Crimes Act already covering threatening behaviour, it should be relatively easy to ensure such legislation is inclusive of threats communicated digitally.  

Indeed Section 306(1)(b) states Every one is liable to imprisonment for a term not exceeding 7 years who sends or causes to be received, knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person

How difficult would it have been to insert into that Act a definition of "writing" that includes any digital communications?  Similar provisions apply to threatening to damage property, and could have been extended to other forms of violent or sexual crimes.  Why not?

Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Why not? Why is the law to protect people from being offended?  If I am Muslim am I protected if someone sends me a drawing of Mohammed? Is there a law to protect me from being offended by what someone says to my face?  Of course not.

Principle 4
A digital communication should not be indecent or obscene.

All in the eye of the beholder.  One person's indecency is another's desire.  

Principle 5
A digital communication should not be used to harass an individual.

The Harassment Act 1997 exists.  

Principle 6
A digital communication should not make a false allegation.

The Defamation Act 1992 exists.

Principle 7
A digital communication should not contain a matter that is published in breach of confidence.

Legislative and common law of contract exists.

Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

This is one step removed from the act itself.  You should't send an email to encourage anyone to write a letter or send a message.  So don't text your friend to tell her to tell her boyfriend to "go fuck himself for being an ugly stupid useless dickhead" because you want him to experience serious emotional distress.  You criminal you.  You can't even encourage someone to send someone a message that might upset them.

Principle 9
A digital communication should not incite or encourage an individual to commit suicide.

Section 179 of the Crimes Act already applies.

Principle 10
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Identity politics hate crime time.  Yes it's vile, but it is part of the sanitising of communications by law process.  I'd much prefer that anyone who does this simply gets their communications published and exposed for being a repulsive fool, but then I think free speech should be fought with free speech.

Yet these "principles" are not law, but what a new bureaucracy - the Approved Agency - will "take account of" when it censors communications.

For that is what this Act does - it sets up a central People's digital communications censorship office, to parallel the Office of Film, Video and Literature Classification.  You can officials are watching, in Beijing, Hanoi, Abu Dhabi and the like.

Now yes, it is meant to "act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990" yet it most expressly undermines these.  This is a law that constrains speech. If there were a NZ equivalent to the First Amendment, the Supreme Court would rule the law as unconstitutional.

The "Agency" has powers as follows:

(a) to receive and assess complaints about harm caused to individuals by digital communications:
(b) to investigate complaints:
(c) to use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints:
(d) to establish and maintain relationships with domestic and foreign service providers, online content hosts, and agencies (as appropriate) to achieve the purpose of this Act:
(e) to provide education and advice on policies for online safety and conduct on the Internet:
(f) to perform the other functions conferred on it by or under this Act, including functions prescribed by Order in Council made under section 7.

It is the state regulator of digital communications.  You complain to it, and it addresses your complaint.  Upset at what someone said to you? Complain to the government, it's here to help.  

Grounds to refuse to assess a complaint will be if it is frivilous, trivial or vexatious, unlikely to "cause harm to any individual" (any, of course, includes children or anyone with any mental "condition" or if it doesn't contravene any of the "principles" above, and it has discretion if it doesn't think action is appropriate.  In other words, it had carte blanche to consider action if anything you have published or sent digitally could "cause harm to any individual".  Interfering with a politician's career, reducing the patronage of a business, or making someone feel a bit uncomfortable. 

So who can get the new agency (let's call it the Ministry of Information for argument's sake) to act?  Anyone...

an individual (the affected individual) who alleges that he or she has suffered or will suffer harm as a result of a digital communication: a parent or guardian on behalf of the affected individual:

So you claim you "will suffer harm" because of something published on a blog, or on Twitter, or an email, then you can go to Court.  Indeed if an overly protective parent sees something a child's friend has sent a child and thinks it is harmful for the child, then off to court the parent can go.  Think of a parent who catches that a girlfriend and boyfriend have been sexting each other - off to court.  Any age limit?  Well no. You can be 20 or even 30, and the parent can do so on your behalf, because you would rather Mum or Dad took the lead, because you can't handle a "digital communication".

Time to remind you of the definition of "digital communication" again. It "means any form of electronic communication; and includes any text message, writing, photograph, picture, recording, or other matter that is communicated electronically".  That's not just a private communication, it can be a social media post, a blog, a news item or a broadcast.

So yes, a politician or an entrepreneur, hearing that a broadcast is to be made that exposes a scandal, dishonesty or the expression of an unsavoury opinion, could go to court to stop the broadcast going ahead.

Oh yes, this is the charter to sanitise investigative journalism and discourse BEFORE it is published.  

An offence is created of posting a digital communication with the intention of "causing harm" to the victim, as long as it would do so to an "ordinary" reasonable person in the victim's position and actually causes harm.  Presumably intended to cover revenge porn, it also covers any communication of outrage to distress someone, regardless if that person hurt you in the first place.  Imagine someone who caught her partner with someone else and then texted a juicy message and said it was over and to move out immediately.  You may well indeed intend to cause harm, because you have been hurt.  It's a natural human response, and in a free society is par for the course of human relationships. However, with this new law, the recipient can attempt to criminalise YOU for sending it.

Furthermore, the Ministry of Information that will enforce this can be ANYONE appointed by the government.  Amy Adams is on the lookout for who can be the Stasi for the internet - a classic example of a state coercive function to be "outsourced" by a government that prefers corporatism to freedom, the free market and personal responsibility.

So yes, this law is a disgrace.  Amy Adams, with her first class Honours law degree (albeit from Canterbury - oops that probably breaks the law) should be utterly ashamed.  She is younger than me and quite clueless about the digital sector, having agreed to a law that isn't only unworkable, authoritarian and invasive of privacy and free speech, but a bastardisation of the English language.

Cyberbullying is a problem, but here's how you resolve it:

1. Extend legislation on all real crimes and harassment (including inciting suicide) to include digital communications.
2. Clarify how property rights applies to all photography and recordings of people (including intimate ones).  If you make a recording of yourself, you own it.  If you sent it to another person, that person owns it too and unless you communicate it with the express condition that it not be made available to others, then you've transferred that right to another.  Own responsibility for content you make of yourself.

It isn't actually a crime to "bully" someone that doesn't involve actual threats and harassment, so trying to create an online crime for it is absurd.

Return to first principles.  Don't pass laws to protect people from "serious emotional harm", because life creates serious emotional harm.  People will lie to you, people will let you down, people will break up with you, people will insult you and belittle you.  Your reaction to all of that is what you own.  If it's your children affected by other children, then confront the parents, keep the children apart, confront the school or other institution if it is happening there, but most importantly - teach your children how to block or delete communications they don't like.  Expose those who express hate and are vile, and demand that social media platforms and the like enforce their own terms and conditions for behaviour (which exist and can be legally enforced too).

As I said at the beginning of this rant, one of the worst trends in recent years has been the drive - particularly by those on the "progressive" left, post-modernist identity politics types, to sanitise discourse and to declare how "offensive" something is.  It would appear those types are now writing our laws and passing them.

Is there now a generation of soft-headed easily offended adults who run to nanny state to fix their personal problems?

Do people really want a public-private agency to run to if they are upset at what they see online?

Is the National Party now just Helen Clark's administration under a different party?

Does Amy Adams have a clue about what harm she has done?

1 comment:

Daddy said...

Scott, One wonders how this recent Twitter episode could be treated under the Act. I'd suggest principle 1 and principle 8 are both in play.

http://www.stuff.co.nz/travel/travel-troubles/71398447/World-watches-as-plane-passenger-live-tweets-couples-meltdown

The Act itself is an outrage and well done for highlighting this.