The Harmful Digital Communications Act 2015
This page acknowledges that the Harmful Digital Communications Act 2015 was well intentioned with a legitimate purpose and may serve that purpose well. The discussion on this page is concerned only with the possible use, misuse, or abuse of the Act to suppress otherwise legitimate and open discussion of religious subjects, whether spoken, written, or through art, cartoons, comedy, satire, or any other form of communication that may be conveyed as a “Digital Communication”.
The New Zealand situation changed on the 2nd of July 2015 when the Harmful Digital Communications Act 2015 received the Royal assent. Passed by parliament on Tuesday 30th June 2015, this Act created an additional de facto blasphemy law moving New Zealand a step back toward barbarism, theocracy, and the dark ages.
This law allows for imprisonment of up to 2 years or a fine of up to $50,000 for an individual, or a fine of up to $200,000 for a body corporate for the new crime of denigration of religion.
The new Act breaches the principle of the separation of religion and state because it asks secular authorities to make judgements regarding religion.
The Bill should have rung alarm bells when it was introduced to parliament because it singled out religion as a ground for bringing proceedings under the Act but it did not include ethical belief. This automatically put the Bill in breach of section 13 of the New Zealand Bill of Rights Act 1990 that states that “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference”, and Section 21 of the Human Rights Act 1993 that lists religious belief and ethical belief as prohibited grounds of discrimination – you cannot list “religion” and omit “ethical belief” without breaching the Human Rights Act.
In 1948 the Universal Declaration of Human Rights stated that everyone has the right to freedom of thought, conscience and religion, and the right to freedom of opinion and expression; and in 1976 the International Covenant on Civil and Political Rights which binds New Zealand affirmed that everyone shall have the right to freedom of thought, conscience and religion, that no one shall be subject to coercion, that everyone shall have the right to hold opinions without interference, and everyone shall have the right to freedom of expression. The new Act breeches these principles by giving special protection to religion that is not extended to thought and conscience and by limiting freedom of expression in a manner not permitted under the Covenant.
The Harmful Digital Communications Act 2015 was, however, a well-intentioned attempt to reduce or prevent cyber-bullying, and it may well achieve this objective, but because of an attempt to broaden the scope of the Act well beyond the sending of text messages and emails, and internet postings deliberately targeting a specific individual, some poor wording, a lack of clear thinking and a poor knowledge of International Law regarding Freedom of Speech and Blasphemy Law, and little consideration for some of the consequences of the Act, it also become a new blasphemy law with fines that did not exist under section 123 of the Crimes Act and double the period of imprisonment. As a result, the Harmful Digital Communications Act 2015 breaches International Law and New Zealand Human Rights legislation and could result in some cases in those charged under the Act suffering far greater emotional distress than the Act seeks to prevent.
The new Act allows an individual, or specified persons acting on behalf of that individual including parents, guardians, school leaders, and the police, to bring proceedings if they “allege” that a digital communication has harmed the individual by causing them to “suffer serious emotional distress” because the digital communication has “denigrated the individual’s religion”!
Because “serious emotional distress” is so subjective, it is very difficult if not impossible for anyone to know before they publish anything whether someone, somewhere, might find a reason to object to it and claim that it has caused them to suffer serious emotional distress. It only takes one person in several million to complain to initiate proceedings.
This wording is so broad and so subjective that it could prevent all open and objective discussion of religion, as any discussion of religion might be distressing to just one particular individual somewhere.
While the Act provides some protection against misuse of the law, the law itself may incite people to bring proceedings when they do not like what has been said in a publication, because they consider that the law has been breached.
It would appear that where the new crime of denigration of religion is concerned, the law makers have failed to consider that the serious emotional distress and real harm that they might cause to a real person charged under this act may far exceed the imagined harm that a complainant suffered in the first instance.
Apart from the tremendous and serious emotional distress that such charges may cause to a person charged under the Act, arguably far greater than the original publication ever did to the complainant, such proceedings may also cause harm through the loss of productivity for those who must attend hearings or court proceedings and also significant financial cost to those who must defend themselves against the charges brought against them by the state on behalf of the complainant.
Sometimes when people seek to do good they become oblivious to the harm they are causing and they end up in zero sum situation where the good is cancelled out by the harm. In other cases the harm may vastly exceed the good that is achieved but they remain oblivious.
While the Act may have been well-intentioned in its objective, to prevent cyber bullying, no justification has been given for including religion in this Act. History has shown that blasphemy laws and de facto blasphemy laws can only be abused and cause harm and this law is waiting to be abused.
What is the purpose of the law?
The intention of the law is to stop or deter individual people being targeted by emails, text messages, postings on web sites, or any other electronic communications, that might cause them “serious emotional distress” that could in the most extreme cases lead to suicide.
Section 3 of the Act reads:
The purpose of this Act is to—
(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and
(b) provide victims of harmful digital communications with a quick and efficient means of redress.
Under Section 4 an individual is defined as “a natural person” and harm as “serious emotional distress”.
Section 11 allows any of the following to bring proceedings:
(a) an individual (the affected individual) who alleges that he or she has suffered or will suffer harm as a result of a digital communication:
(b) a parent or guardian on behalf of the affected individual:
(c) the professional leader of a registered school or his or her delegate, if the affected individual is a student of that school and consents to the professional leader or delegate bringing the proceedings:
(d) the Police, if the digital communication constitutes a threat to the safety of an individual.
However, nothing in the Act requires that a person be specifically targeted. The possibility is open for any person to take offence at something they see on a website, or in any other Digital Communication, and to then “allege” that they have been harmed because it has caused them “serious emotional distress”, and to bring proceedings on the grounds that the Digital Communication breaches one of the 10 Principles listed in the Act. Principle 10 includes the denigration of religion.
Is this a Blasphemy Law?
There is absolutely no doubt that this is a Blasphemy Law. While the intent of the Act is to stop cyber-bullying, and this remains its primary purpose; because it included religion under principal 10 also became an anti-blasphemy law.
The Act can be both an anti-bullying law and an anti-blasphemy law. Here we are only concerned with discussing the anti-blasphemy aspects of the Harmful Digital Communications Act 2015.
Section 22 of the Harmful Digital Communications Act 2015 came into force on the 3rd of July 2015, the day after the Royal Ascent. (See Section 2 (2) (a).) It created a new offence of “Causing harm by posting digital communications“, where harm is defined as “serious emotional distress”. This section stands on its own and does not depend on the setting up of the Approved Agency that may take up to 2 Years. A person could be charged under this section today.
Section 6 (2) of the Act requires courts to “take account of the communication principles” outlined in the section 6 (1) and they include under Principle 10 that a “digital communication should not denigrate an individual by reason of his or her … religion”. Denigration of religion is considered to be a blasphemy law. See: What is a Blasphemy Law.
If it is found that a digital communication has caused harm to an individual by causing them “serious emotional distress”, Section 22 allows for a natural person to be imprisoned for a term not exceeding 2 years or a fine not exceeding $50,000.
There is no need for an individual to be specifically targeted by a Digital Communication. All it takes is for one person in millions to allege that a single Digital Communication, perhaps a comment on a website, has caused them to suffer harm in the form of “serious emotional distress” for proceedings to start against the originator of the communication. While 22 (1) (a) requires that the communication must be posted with the intention that it cause harm, it would be easy for a person who claims harm to also argue that the person posting the communication should have been aware that it would cause them harm.
Many religious people are very sensitive to any criticism of their religion and their beliefs. To state that god does not exist has been known to cause serious distress to some. Other examples are to say that Jesus, of Mohammad, were just ordinary men, or to say that the founder of one religious group was a convicted fraud or that the founder of another had announced his intention to make money by founding a religion before the event. To say that Jesus was the son of god is the basis of Christianity but blasphemous to Jews of Muslims and may lead to distress. Section 22 (1) (b) that requires that “posting the communication would cause harm to an ordinary reasonable person in the position of the victim” is of little help, because to say that an ordinary reasonable person would not be distressed by a digital posting may be equivalent to saying that all or most members of a particular religious group are not ordinary reasonable people. One of the reasons that so many international legal authorities have called for the abolition of all blasphemy laws without replacement is because of this difficulty.
As has been found so often and in so many countries – the mere existence of a blasphemy law such as “denigration of religion” will incite people to believe that a digital communication has caused them “serious emotional distress” and will cause them to bring proceedings, because the Act leads them to believe that the supposed crime of denigration of religion has been committed.
The law does require that “a digital communication should not denigrate an individual by reason of his or her … religion”. This is different from “denigrate a religion” and might allow discussion of religion as long as the communication does not extend to criticism of the followers of that religion. However, as has often been found, followers of religious beliefs may consider that any perceived criticism of their religion is an attack on themselves personally, and the courts may not make the distinction.
Another impact of a law against denigration of religion is likely to be self censorship. People are likely to be either too afraid that what they write will be seen to be in breach of the law by others, or deemed to be in breach of the law by the courts, that they will be too afraid to write anything about religion as it might be seen to be critical of religion. This may lead to the suppression of much-needed and open debate and discussion on religious subjects.
Thus the law achieves the objective of religious terrorists who also seek to prevent open and honest discussion of religion.
If the single word “religion” is removed from the Act it will cease to be a blasphemy law.
Breach of International Law
This new law of “denigration of religion” breaches International Law. General comment 34 (2011) of the Human Rights Committee on the International Covenant on Civil and Political Rights (1976) (ICCPR) explains how Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant [the International Covenant on Civil and Political Rights (1976)], except [if strictly limited to curtailing incitement to “discrimination, hostility or violence”]. General Comment 34 adds: Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.
Because the Harmful Digital Communications Act criminalises that which is permissible under the (ICCPR) but fails to cover the intentional incitement to discrimination, hostility, or violence, at all, and allows for the prosecution of individuals who present valid criticism of religious leaders or commentary on religious doctrine and tenets of faith, the Act is in clear breach of International Law and New Zealand’s obligations as a country that has ratified the International Covenant on Civil and Political Rights (1976).
This new law may well lead to the prosecution or attempted prosecution of artists, cartoonists, comedians, and satirists for presenting valid points of view but it will not prevent fanatics exciting hatred and violence leading to death.
Conflict with the New Zealand Bill of Rights Act 1990
Section 14 of the New Zealand Bill of Rights Act 1990 states:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
The New Zealand Court of Appeal has described the right to freedom of expression as “being of the highest importance in a modern democracy” and “as wide as human thought and imagination”. (Hosking v Runting  and Moonen v Film and Literature Board of Review .)
Section 5 of the New Zealand Bill of Rights says:
… the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 6 of the Harmful Digital Communications Act, Communication principles, subsection (2) (b) requires that: In performing functions or exercising powers under this Act, the Approved Agency and courts must—
(a) take account of the communication principles; and
(b) act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.
This means that when section 22 of the Harmful Digital Communications Act 2015 appears to conflict with the free speech provisions of the New Zealand Bill of Rights Act 1990 the Bill of Rights will predominate. Section 6 of the New Zealand Bill of Rights also says:
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
However, Section 4 of the New Zealand Bill of Rights allows the Harmful Digital Communications Act 2015 to override the Bill of Rights. It is recognised that Freedom of Expression can be restricted by law to prevent Harm and the Harmful Digital Communications Act seeks to eliminate Harm in the form of “Serious Emotional Distress”.
Section 123 of the Crimes Act 1961 says: (3) It is not an offence against this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever on any religious subject and (4) No one shall be prosecuted for an offence against this section without the leave of the Attorney-General” and Attorneys General have cited freedom of expression to prevent charges of blasphemy reaching the courts.
The safeguards against prosecution for blasphemous libel under section 123 of the Crimes Act do not exist under section 22 of the Harmful Digital Communications Act 2015. It is of concern that some individuals may seek to use section 22 to limit freedom of expression regarding open discussion of religion and that a court not fully aware of the arguments may agree to use the section to minimise a perceived harm and unduly restrict freedom of expression.
Conflict with the New Zealand Human Rights Act 1993
Section 21 of The New Zealand Human Rights Act 1993 lists thirteen prohibited grounds of discrimination. They include:
(c) religious belief:
(d) ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:
In the NZ Law Commission’s 2012 report, MB3 Harmful Digital Communications: The adequacy of the current sanctions and remedies, the Law Commission recommended that under Principle 10, and in their Draft Bill that “A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability”. However, when the Hon Judith Collins introduced the Harmful Digital Communications Bill to parliament on the 5 November 2014 Principle 10 read: A digital communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.
“Ethical Belief” had been deleted without explanation!
This clearly sends the message that while it is an offence to denigrate a person by reason of their religion, it is not an offence to denigrate a person for their ethical belief or lack of religious belief.
This is a clear breach of the Human Rights Act 1993.
You cannot put “religion” into an any Act without “ethical belief”, because to do so creates an automatic breach of the Human Rights Act 1993.
The final Act perpetuates this discrimination. Principal 10 now reads: A 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.
Denigration of individuals for their lack of religious belief has a long history that extends into assault, murder, and state sanctioned barbaric punishments including branding, flogging, piercing or cutting out of the tongue, burning at the stake, and hanging, and is much more common than the denigration of an individual for their religious belief.
The new law opens up the possibility that in an exchange of emails between two people, one religious and one non-religious, on the subject of the reality of religion, and such exchanges are generally initiated by religious people with a proselytising zeal, a religious individual may with the sanction of law impugn the non-religious person’s ethical beliefs with impunity while the non-religious person could face 2 years in prison for simply questioning the religious person’s beliefs, because the religious person could claim that the questioning of their personal beliefs in consecutive emails caused them to suffer serious emotional distress. The religious person may not be wrong as the questioning of a person’s fundamental religious beliefs often leads to emotional distress. The non-religious person cannot make the same claim as ethical belief has been deleted from the list under Principle 10.
For these reasons and others, international experts have consistently recommended that all blasphemy laws in whatever form should be repealed and not replaced, and that there is no place for a modern democratic state to adjudicate on matters of religion.
To eliminate the discrimination that occurs in this Act, the correct solution is to delete “religion”, not to include “ethical belief”.
Why is Religion in the Act?
This is difficult to answer as the New Zealand Law Commission provide no indication in their report to the Minister, HARMFUL DIGITAL COMMUNICATIONS MB3 Aug 2012.
The first mention of religion in the report occurs in on page 58 of the report where they outline some of the dubious material posted on YouTube. In a footnote they reproduce YouTube’s community standards which include:
We encourage free speech and defend everyone’s right to express unpopular points of view. But we don’t permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation/gender identity).
On page 97 they refer to section 61 of the Human Rights Act 1993 that prohibits the publication of matter that is likely to excite racial disharmony and suggest that this be extended to include insulting or abusive conduct relating to religion, ethical belief, gender, disability, and sexual orientation as well as race.
Then on page 117 they outline the “Substance of the Principles” that they propose. Principle 10 on page 119 states:
Denigrate a person by reason of that person’s colour; race; ethnic or national origins; religion; ethical belief; gender; sexual orientation or disability. This derives from the Human Rights Act 1993, amended as we propose. Normally such a communication will also fall into the category of “grossly offensive”.
Principal 10 is then repeated on page 136 as part of their recommendations and appears in their draft Bill. At no stage is there any evidence provided, discussion, reasons, or justification given for the inclusion of Principal 10 or “religion” in particular in the draft Bill. Compared to Principles 1 to 9 which deal with ways where individual people are known to have been harmed by digital communications, Principle 10 appears to be a “tack on”.
In the final Act, Principle 10 reads:
A 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.
The Law Commission correctly include both Religion and Ethical Belief together in their report to conform with the Human Rights Act but Ethical Belief was deleted without explanation before the Bill was introduced into parliament creating a breach of the Human Rights Act.
The similarity between Principal 10 and YouTube’s community standards has to be noted. Principle 10 appears to be an adaptation of YouTube’s community standards. YouTube’s “demean” has been replaced with a synonym, “denigrate” and the list has been cross checked with the thirteen prohibited grounds for discrimination in Section 21 of the Human Rights Act 1993 which states that:
For the purposes of this Act, the prohibited grounds of discrimination are: sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, political opinions, employment status, family status, or sexual orientation.
We are left to wonder why only seven of the thirteen prohibited grounds of discrimination in the Human Rights Act made it to Principal 10, but then YouTube only had seven items in their list.
Apparently it is OK to denigrate an individual by reason of their marital status, ethical belief, age, political opinion, employment status, or family status. If this is so, why then do the other grounds that made it to the Harmful Digital Communications list deserve protection with such high penalties. This has not been explained.
Perhaps it is worth noting that the Law commission recommended penalties of 3 months in prison or $2,000 and the penalties have since been increased to their present level by parliament.
We should also note that the word “discrimination” as used in the “prohibited grounds of discrimination” in the Human Rights Act has quite a different meaning to the synonyms, “demean” as used by YouTube and “denigrate” as used by the law Commission. Demean or denigrate are, however, much closer in meaning to “defame”.
While the Law Commission may have given careful consideration to some aspects of the new Act, there is no indication that they gave any consideration at all to the need to include religion in the Act or the consequences of doing so. They just saw it in YouTube’s community standards and assumed it was a good idea.
Was the Blasphemy Law aspect considered?
There is absolutely no indication that the Law Commission report that they were aware that they were creating a blasphemy law, although they must have been aware that they were creating the offence of “denigrating an individual by reason of his or her religion”.
“Denigrating religion” is so close to the very dubious attempt to impose the euphemistic “defamation of religion”, a euphemism for blasphemy law, on the world as a means of preventing all criticism and discussion of certain religions, that the commission should have been aware of the implications, investigated them, and discussed them in the report. They should also have been aware of the significant efforts of the many democratic countries to oppose all such laws. See: UN Human Rights Council – Resolution 16/18 (2011) under Legal Recommendations.
There is no indication that the Law Commissioners were aware of, or if they were aware of paid any cognisance to, the significant body of legal recommendations regarding blasphemy laws that recommended that all such laws be abolished and not replaced; or to the very real problems and the suffering that blasphemy laws cause in so many countries that have them.
The conclusion can only be that the Law Commission were grossly negligent for their failure to investigate and discuss the inclusion of religion in the Act and their failure recognise the significant body of international work on this subject that advises that all blasphemy laws be abolished and not replaced with similar laws under other names.
The isolation of New Zealand may have been a factor, sometimes we just do not know what is going on in the rest of the world, but the Law Commissioners are paid to find out. Was this a case of a group of people becoming so convinced that they had found the formula to do good that they neglected to consider the harm that they might do; a case of “Group Think”, ” folie à plusieurs”, or BIAS (Blind ignorance and Stupidity)?
All that is necessary for the evil of blasphemy laws to triumph is that good people look on and do nothing.
Other Comment on the Harmful Digital Communications Act 2015
See: Ursula Cheer, Professor of Law, University of Canterbury 25 June 2015
See: Stuff Editorial 30 Jun 2015
See: Stuff Editorial 4 July 2015
See: New Zealand Listener Editorial 9 July 2015
See: Electronic Frontier Association 8 July 2015
See: Scoop News 30 June 2015
See: Scoop News 6 August 2015
The following has been reproduced from End Blasphemy Laws, This Week in Blasphemy #22, July 3, 2015.
New Zealand: Is this a new blasphemy law by the backdoor?
A new law in New Zealand, the “Harmful Digital Communications Bill”, is meant to protect people from cyberbullying, but concerns have been raised about a number of provisions that are “ludicrously wide”:
A similar risk arises from the prohibition on a communication that may be “grossly offensive to a reasonable person in the position of the affected individual”. It does not take much imagination to see how that provision could be used by a deeply religious person to resurrect blasphemy laws that have largely (and properly in a secular society) fallen into disuse.
A complainant will not be able to obtain any redress unless he or she can show that the offending digital communication has caused harm. But harm has also been given an alarmingly expansive definition by the statute. It is defined as anything that causes a complainant “serious emotional distress”, a disconcertingly subjective notion.
As ever with some new legislation, the proof will come in the implementation and how courts resolve actual disputes, but certainly some of this language is disconcertingly familiar from other pseudo-blasphemy laws. It’s clear that some of the intention here is to combat genuine concerns about online hate speech, harassment and bullying, but some dissenting MPs voiced further concerns when the law was enacted by parliament on Wednesday:
After it passed by a 116-to-5 vote in New Zealand’s parliament, Gareth Hughes, one of the four Greens MPs to vote against the bill, said it was overly broad and “risks limiting our freedom of expression”.
NZ Labour said it was “wedged” by the NZ government: while some of the bill was “worthy of discussion” the law has “deeply worrying” elements.
… There’s a safe harbour provision for Web sites, and here’s where the free speech arises. A platform like Facebook or Twitter (if they bothered) can opt into the safe harbour – but only if they agree to remove allegedly offending material either on-demand or within the bill’s 48-hour grace period.
New Zealand’s National Business Review notes complaints that it could criminalise children over the age of 14.