Je ne suis pas Charlie say NZ MPs: eroding free speech

New Zealand MPs are so keen to be seen to be "doing something" about cyber-bullying that they are about to pass a poor piece of law that will do something terrible

In January this year, John Key and Andrew Little united in their condemnation of the Charlie Hebdo murders. The Prime Minister described the "freedom of speech and expression" as an attack on "democratic principles", while the leader of the Opposition described the shootings as a "shocking attack on freedom of speech" and "an assault on democracy and freedom of expression". Yet today the pair will unite again to pass the third reading of a bill that could have a chilling effect on free speech in New Zealand.

So much for Je Suis Charlie; how quickly fine words are forgotten.

The Harmful Digital Communications Bill will be back before the House today. It seeks to address serious worries about online bullying, something that we all know is causing real hurt amongst as many as one in five New Zealanders. Yet its attempt to tackle bullying is so cack-handed and ill-drafted, that it may undermine journalists' ability to critique, cartoonists' ability to lampoon and satirists' ability to just take the mick.

Despite the Independent Police Conduct Authority saying there was nothing stopping the police laying charges in the Roastbusters case, National is exploiting public fear to force through a terrible piece of law that introduces new criminal charges around cyber-bullying. And such is Labour's fear at the moment, it is meekly going along with it, rather than standing against it for the sake of free speech.

It's been left to ACT's David Seymour to do that.

The way the bill works, is that if you feel something posted online is causing you harm – defined vaguely as "serious emotional distress" – you contact the webhost and demand the offending item be taken down. The host then has 48 hours to contact the author (aka bully) to get their response; if they get no response in 48 hours the default position is that they must remove it from the web.

At least, that was the process until this week, when National added an out-clause to this "safe harbour" provision. Now, the host can choose to do nothing; Justice Minister Amy Adams insists that means they can act just as they do now, following their own terms and conditions. What she doesn't like to say is that by refusing the "safe harbour", companies open themselves to the full force of the new law, including criminal charges.

Because if a distressed person isn't happy with the host's actions, they can go to an "approved agency" and then onto the courts.

So will the Facebooks, news media and blogs of this world stick to existing processes and risk criminal conviction? Or will they take the easy road and just pull things offline?

Yes, I include news media in that list because there's no exemption for news and current affairs under this bill and no defence of truth; investigative journalists can be labelled bullies as easily as bad-mouthed teens or roasters. Or satirists or cartoonists, for that matter.

If a current affairs investigation into a dodgy finance company offends that financier or his family... if a Fair Go report distresses some con man... or if a cartoon emotionally harms a pious soul, they now can use the law to ask for the offending item to be taken offline.

Now, perhaps news sites will hold the line. Perhaps the courts, when the case finally gets there, will defend journalism, satire and the like. Perhaps. Perhaps. But the bill is silent on these concerns.

Adams says people can be criminalised only if they intend harm and significant harm is caused. But that doesn't stop the takedown notices and complaints on the way to court. And anyway, those are such subjective concepts, I can imagine everyone from media companies to judges having to spend huge amounts of time and money trying to wade through the complaints.

Imagine an unashamedly provocative Charlie Hebdo-style cartoon published online in New Zealand. (Or a virgin in a condom promotion or story, if you want to avoid singling out a particular religion). Is that intending harm? Perhaps. It might certainly intend to criticise and condemn.

And if someone in Paris was prepared to kill in retaliation to such a cartoon, it's hard to argue that they were not distressed, right? Now a fundamentalist in New Zealand as a new legal weapon with which he or she can fight freedom of expression and cut away at informed criticism.

So kudos to Seymour for being a politician willing to stand up for these freedoms. He told me today that it's the classic case of public pressure saying 'something must be done, and because this bill does something, it must be done'. And he's right.

There were simple ways round this, such as exemptions for news and current affairs, that were recommended by the Law Commission. National chose to ignore that wisdom, and other parties will fall into line behind this sloppy law for fear of a bad headline.

You might say it's just rushed legislation, except for the fact it's taken 18 months to get here. You might say the MPs have just missed a few subtle points; except the criticism through the select committee and media has been loud and clear.

So it's either stupid politics or cynical politics. You can decide which. Either way, exercising your right to free speech in New Zealand is just about to get a bit harder.