Reply from Hon Andrew Little in response to my HDCA concerns
On July the 11th, 2019 I sent an email detailing some of my concerns about New Zealand's Harmful Digital Communications Act (HDCA) to the Minister of Justice, Hon Andrew Little and Mark Mitchell. This came about after Suzie Dawson tried to use the HDCA to get me to remove content from my website and prevent me from being able to write about her in the future.
This is detailed in the post, "Suzie Dawson and the Whistle-blower". The original post she complained about is,"Who is Suzie Dawson: Exile or Fraud". Further information can also be found in,"How the Harmful Digital Communications Act can be misused".
My original communication with the Minister.
Dear Sir, early this year I was brought in mediation with NetSafe under the Harmful Digital Communications Act (HDCA). That my accuser was a New Zealand citizen who has lived in Russia for many years and that I was living in France probably should have come into it but I entered the process anyway as I thought I had hurt someone. This turned out to be completely false and raised a number of question about this piece of legislation that I think you should both be made aware of.
There is nothing to stop a trivial, frivolous, or vexatious complaint
In my case the agency said the bar was so high that it would be very
rare that they would stop a case. After replying to the accusations the
only thing changed was the amount of Executive Members in one line.
All nine other offensive parts were either true or clearly opinion.
There is no onus to prove, even in a minor way, serious emotional harm
In my case the person was clearly not harmed and had made statements to that effect in the past. Yet they were able to tie me up and force me to seek legal advice. If I had of had to pay for that advice I would have had to take down what I had written whether it was true or in the public interest simply due to a lack of funds. This is not how I want the law to work in New Zealand.
There is no comeback on a person for wasting the Agency's or other person's time
Again, in my case the person was able to instantly shut down the case as soon as it didn't look good for them but as they had already wasted a month of my time I became a small victim.
There is no closure
After going through this process the other party is still able to reopen it or just take me to court. There is no end to it, no closure.
The courts were used as Sword of Damocles
During the process it was apparent, at least to me, that if I did not engage in the process then the courts would not look favourably on my conduct and that this would be a mark against me in any case.
There are no in depth statistics being gathered
After the mediation I submitted a OAI request for the amount of public figures using the process. This was refused as they would have to go through 7000 records to find the answer. The refusal pointed me to their online statistics which are so few that it appears no in-depth recording is going on.
I appreciate that the Netsafe process helps free up the courts time from an overload of complaints caused by the HDCA but as someone who has been at the other end of the Act it seems extremely broad and not at all neutral in terms of punishment or responsibility.
Email to Hon Andrew Little 11th July, 2019
Hon Andrew Little's reply
Thank you for your email of 11 July 2019 regarding your concerns about aspects of the Harmful Digital Communications Act 2015 (HDCA).
As I am sure you will be aware from your recent experience with Netsafe, the HDCA is designed to balance freedom of expression, as per the New Zealand Bill of Rights Act 1990, while ensuring the removal of harmful online communications. This includes online digital communications that threaten, harass, make false allegations, encourage someone to commit suicide, or otherwise violate the Communication Principles listed under the HDCA.
If an online content host receives a complaint about content that violates the HDCA, the online content host must, within 48 hours of receiving a complaint, notify the author and either take down the content or leave it up if the author does not agree with the complaint. In the latter case, a complainant may then take a proceeding before the courts, which may order the content to be removed. Such a proceeding requires a certain threshold of severity to be met.
Netsafe may engage in mediation if they consider their contribution will constructively resolve disputes. This is not limited to complaints that meet the legal threshold for criminal proceedings and includes complaints regarding content that causes serious emotional harm, as you mentioned in your email. It is worth noting, however, that Netsafe can refuse or cease to investigate a complaint that it considers to be frivolous or vexatious.
I acknowledge you became frustrated with the mediation process you were involved in. In such cases, the author of the reported content has the choice to opt out of mediation with Netsafe. This places the burden on the complainant to escalate the complaint to criminal proceedings if they choose, and the success of this would depend on the content meeting the legal threshold of harm. Courts may dismiss or acquit a case if the evidence does not meet this threshold.
I appreciate the time that you have taken to outline areas in which you believe the current Act could be improved. I have passed these onto my officials for consideration.
Thank you for writing with your concerns about the HDCA.
Hon Andrew Little
Minister of Justice
Email from Minister of Justice 23, September, 2019
Picture sourced from Wikipedia: Governor-General of New Zealand CC BY-SA 4.0