Balancing protection - free speech

This week's passing into law of The Harmful Digital Communications Bill has marked a world-leading attempt by this country to legally crack down on the global problem of cyberbullying, but has sparked a new round of debate about freedom of speech.

The dual purpose of the legislation is 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 defines digital communications as ''any text message, writing, photograph, picture, recording or other matter that is communicated electronically'' and makes clear ''10 communication principles'' about what a digital communication should not do or contain.

An enforcement agency will be created to provide education and advice on policies for online safety and conduct, and to investigate and attempt to resolve complaints.

If that fails, an individual can apply to the District Court for civil orders that would require removal of the harmful material, that the harmful conduct cease, and that the identity of an anonymous author be released.

The legislation creates criminal offences to deal with the most serious harmful digital communications, such as inciting suicide.

Causing harm by posting a digital communication will be punishable by up to two years' imprisonment or a maximum fine of $50,000.

It also makes clear the online world is not the unpatrolled Wild West it once was.

It will hopefully go some way to protecting young and vulnerable users, who are easy targets from their peers and adults through content of a sexual, threatening or derogatory nature, which can have devastating effects.

But the legislation has received criticism about the potential it has to curtail freedom of speech, and the possibility of criminalising young people.

Labour reluctantly supported it but has concerns, four Green MPs voted against it as did Act leader David Seymour , who called it a ''kneejerk'' reaction.

This likely refers to reports which have mentioned the Bill's progress through Parliament as a reaction to the Roast Busters case.

However, although the Bill's introduction in November 2013 occurred in the same week as those revelations (of teenage boys bragging online about having sex with drunk and underage girls), the legislation had its genesis in the Law Commission's broader review of media regulation, which began at the end of 2010.

In May 2012, then Justice Minister Judith Collins asked the commission to focus on the adequacy of the sanctions and remedies available for harmful digital communication.

The commission's recommendations and draft Bill form the basis of the new legislation.

The concerns over freedom of speech and the potential for youngsters to face prosecution are valid, however.

One person's idea of satire, for example, can be highly offensive to another. Whether the offence causes ''harm'' (defined as ''serious emotional distress'') is likely to be tested in court.

However, the agency and court must consider harm in terms of content, context and intent, the age and vulnerability of the affected individual and the public interest.

Responsible news media already consider the law, ethics, and issues of fairness, balance and harm before posting online content.

The legislation should not hamper their role as watchdog, if context and public interest remain guiding principles.

Rather, it should bring into line those who seek to cause harm, act criminally, and who can operate often anonymously and insidiously in the online environment.

Questions will remain over various areas including retrospective content, however, and there may be unforeseen consequences.

In this instance it is pleasing Ms Adams has said she will review the legislation if necessary.

And Ms Adams says the threshold for criminal prosecution is high; the nation's youth are not going to find themselves criminals en masse.

But what has emerged - and something that prompted amendments in the select committee process - is the importance of the education provisions: to ''deter, prevent and mitigate harm''.

One of the appointed agency's first steps therefore must surely be a nationwide campaign, which includes school children and youth, that makes absolutely clear what is safe and acceptable conduct in our constantly evolving online world.

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