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Cyber-bullying legislation not 'blasphemy law'

10 August 2015 - By James Greenland

Decrying new legislation intended to address cyber bullying by labelling it "blasphemy law" is nonsense, says media law specialist Stephen Price.

The New Zealand Humanist Society has lashed out at the recently enacted Harmful Digital Communications Act 2015, describing the law as an "embarrassing step backwards and a severe blow to free speech".

The purpose of the Act is to deter, prevent and mitigate harm caused to individuals by digital communication, and to provide victims with a quick and efficient means of redress.

One of 10 specific communication principles listed in the Act states that "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" (emphasis added).

Humanist Society president Mark Honeychurch says "the introduction of a new law that gives special privileges to religions is unfair, unpopular and unrepresentative of our society, where over 40% of New Zealanders identify as not religious, making this our country's largest single belief group".

"We want to increase social cohesion and understanding.

"By awarding privileges and protecting groups from critique we are closing the door on free speech, free inquiry and public debate. New Zealand has to abolish its blasphemy laws before they are used to censor, suppress, and silence public debate," he says.

Steven Price, a Wellington barrister specialising in media law, says the society's press release has missed the point of the new legislation.

"This is nonsense, as anybody who takes the time to read the new Act can tell," he says.

"This law is designed to fill a gap in the law and provide for an effective means of getting a takedown order when someone posts some revenge porn or a video of a child being beaten up at school. It is not a recipe for stifling criticism of religion."

Mr Price says the Humanist Society, like others, has mixed up the new offence – deliberately causing serious emotional distress via digital communication - with the new civil remedies provision, and mistakenly asserted that the 'blasphemy' provision was part of an offence carrying a maximum individual penalty of two years' imprisonment or a $50,000 fine.

"They are separate. There is no offence of online blasphemy, there is no $50,000 fine for blaspheming, and there is no realistic prospect of the Act being used against anyone who criticises religion," says Mr Price.

"The offence provision requires a digital attack on a targeted person that is intended to cause that person serious emotional distress, and does so, in circumstances where an ordinary reasonable person would suffer that distress. The statute requires any judge to consider the context of the attack and act consistently with rights of freedom of speech."

Mr Price says the civil regime, which will come into force within the next two years, provides an avenue for take-down orders, rights of reply and similar remedies, but not damages.

"To get a court order, the complainant must also show that there has been a 'serious or repeated' breach of the principles, that it has caused them serious emotional harm, that they have unsuccessfully tried to resolve the matter through a special agency, that the order is justified in light of a series of factors including public interest, the communicator's purpose, the truth or falsity of the statement, the conduct of the parties, and the overall context and circumstances.

"The Court cannot make an order unless satisfied that any restriction on free speech is reasonable and demonstrably justified in a free and democratic society."

Mr Price says New Zealand does have a blasphemy law, s 123 of the Crimes Act, which is almost never used.

"There is only one reported case. It is basically defunct. But it should be repealed, I think."

Canterbury University media law specialist Ursula Cheers has expressed reservations about the new Act, and the ability of the approved agency created by it to function properly and consistently with other laws touching on the same issues.

"All of these principles are already covered by other areas of the law where over time, accepted approaches and processes and defences have been developed. 

"Are these to be applied to the principles too or can the Agency and the District Court simply go off in a new direction now?

"These principles require legal and consistent interpretation. It seems unlikely the Agency can do its job properly and fairly without some legal expertise," she says.

Free Speech Debate in Parliament:

The Harmful Digital Communications Bill received Royal Assent on 2 July 2015 only after significant Parliamentary debate acknowledging the proposed law's stifling effect on free speech rights.

National MP Jono Naylor said during the Bill's third reading in the House on 30 June that "freedom of speech is something that we cannot just take for granted".

"It is not something that simply gives us the right to say anything we want, whenever we want to, whatever the consequences of that speech."

In the same debate, Labour MP Jacinda Ardern said no one denied that cyber-bullying is harmful.

"Today what we have online is the equivalent of the old nasty note being passed in class now being broadcast for all to see, and we have to acknowledge that that has much wider ramifications that do need to be dealt with," she said.

She said Parliament must remain engaged in the debate about what type of digital communications should be considered so harmful as to justify the legal imposition on free speech.

Last updated on the 16th September 2019