Legislation addressing Harmful Online Content
Two bills before Parliament which address harmful online content have recently had their first readings and are now before Select Committees. They are a reminder to organisations that operate platforms that host content that they need to be able to take action if inappropriate content is uploaded to their platforms.
Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill
This Bill, which was introduced in May last year, had its first reading in Parliament on 12 February 2021. It was then referred to Select Committee, with submissions closing on 1 April 2021. The Select Committee will report back to Parliament on 11 August 2021.
This Bill would implement measures that support the Christchurch Call, in particular aiming to prevent the distribution of content that could cause harm to the public good.
Key changes proposed by the Bill are:
- imposing a criminal offence on an individual or group responsible for livestreaming objectionable content;
- allowing for interim assessments of potentially objectionable online content to be made by the Classification Office;
- introducing “take-down notices”, which can be issued to require a host to remove objectionable content and incur penalties for non-compliance; and
- providing that the safe harbour provision in the Harmful Digital Communications Act 2016, which insulates a host from liability for a party posting to their platform if certain procedural steps are taken, will not apply to these new obligations. This would make a host directly responsible for reacting when someone post objectionable material to their site.
These cumulatively intend to create a more responsive regime, that keeps up with technological advances and changes to how people may access and interact with content online.
Perhaps the most controversial change proposed by this Bill is the facilitation of setting up filtering mechanisms for objectionable online content which may be mandatory or voluntary. This proposal has drawn criticism from some, who call into question the effectiveness of implementing a blanket tool and potential for it to negatively affect New Zealanders’ connectivity. We expect many submissions to have been made in relation to this particular proposal.
We will continue to monitor this Bill as it makes its way through Parliament.
Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill
Also introduced last year, but not having its first reading until 10 March 2021 is the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. This Bill proposes strengthening the Harmful Digital Communications Act 2016 (HDCA) by making it an offence to post an intimate visual recording without knowledge of the subject’s express consent to the posting (or being reckless as to whether consent has been given).
As stated in the explanatory note to the Bill, this offence recognises that the non-consensual publication of an intimate visual recording is, among other things, a “significant invasion of privacy”.
Submissions on this Bill must be made by 23 April 2021.
Actions for platform providers
For now, we recommend that any organisations that provide a platform which hosts content have appropriate mechanisms in place to deal with inappropriate content being uploaded to the platform, and are able to remove that content if need be.