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Good idea, bad implementation

You may not have noticed but yesterday a very powerful new law relating to the internet came into effect here in New Zealand.

The Harmful Digital Communications (HDC) Act, aka the "cyber-bullying law" now results in the internet and txt-based communications being treated in a significantly different way to the printed word and other media.

Why?

Well the goal is laudable enough. Trolling and cyber-bullying is indeed a problem in some parts of modern society, especially within schools. Mind you, bullying has always been a problem within schools -- I recalled bullying and being bullied as a young lad and the coping strategy back then was "get over it".

Sadly, as is so often the case with lawmakers, they seem prepared to throw the baby out with the bathwater in their attempts to avert the Net being used as a weapon to cause emotional distress in others.

You see, if someone says something untruthful about another person they immediately become subject to the provisions of existing laws -- such as those protecting from defamation.

What the HDC legislation effectively does is turn the act of defamation from a matter requiring the offended to bring their own action -- to one where the state takes action on behalf of the offended party.

In many regards, that's a good thing.

As anyone who's been defamed and sought legal counsel will tell you, defamation can be an extremely expensive action to bring against another and there is never a guarantee of success. Even if you do prevail, odds are that the lawyers bills will cripple you.

Having the taxpayer pick up the bill when someone calls you names based on lies or deception on the internet is therefore, a good thing.

However, this law goes beyond that.

Whereas defamation generally only applies where the harmful statements were untrue, the HDC law makes no such distinction -- all that needs be proven is that the offended party has been caused "distress".

That opens the door to mis-use and abuse.

It also brings in a huge level of subjectivity to any judgment.

We will also see a huge and worrying chasm created between what it's okay to publish in print and broadcast by radio/TV -- and what can be placed online.

A statement or series of statements committed to paper or broadcast may be legally acceptable -- yet if the publisher/broadcaster places the very same statements on their website or video-on-demand service -- they could fall foul of the HDC Act.

How daft is this?

In a nation where we pride ourselves on being egalitarian and anti-discrimination, it seems that we have introduced a new form of discrimination and inequality by making the internet *more* accountable than other media.

Any news publisher with half a brain will now have to be very careful about publishing their print/broadcast material online -- for fear that it may cause someone "emotional distress" and thus fall foul of the HDC Act.

The only slightly mitigating aspect of the law is that there must also be an intent on the part of the publisher. Simply publishing something that causes distress without an intention to do so would seem to provide some measure of defence against action under this new law. However, the onus then falls fairly and squarely on the shoulders of any publisher or person to immediately retract/remove "distressing" statements if called on to do so by the person/party to who those statements relate.

This has enormous potential to suppress free speech. If someone publishes something/anything about you that you don't like -- for whatever reason, all you need do is send them a request to take down that material on the grounds that it is causing you "distress". If the publisher refuses to do so, you probably have a pretty good argument that they are now, having been advised of the distress they are causing you, acting with such intent.

I think this highlights a real problem with lawmaking in the 21st century...

Many of the problems we now face have a great deal of technology associated with them; technology that the legislators simply do not understand.

In the case of this HDC Act, the politicians have taken the typically ignorant approach of "banning" comments that cause distress -- without properly thinking through the immense level of side-effects this could cause. Ban, ban, ban... the hallmark of bad law.

We've seen the same situation with recent changes to CAA regulations in respect to the operation of "drones". A bunch of bureaucrats trying to regulate a technology they have very little understanding of -- hence they (IMHO) have come up with laws that are too restrictive in some areas and far too lax in others. If you don't understand the technology or the culture you're trying to control, your laws are doomed to failure.

What do readers think about the HDC Act?

Is it using a sledgehammer to crack a walnut? Are they throwing the baby out with the bathwater? Can I come up with any more clichéd metaphors in this column?

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