Livestreaming bill introduced after Christchurch attacks could criminalise innocent people
Two years on from the horrific mass murders at AlNoor and Linwood mosques in Christchurch, we know the grief is fresh in the hearts of many. As we think about those directly and indirectly impacted, we must also continue to think about what needs to change.
In December 2020, the report of the royal commission into these events was made public. The findings were a disappointment in not holding any person or agency negligent, though the body of the report detailed a number of failings. The government has committed to implementing the 44 recommendations, with some announcements already made.
One set of recommendations relates to hate speech and censorship laws, with a separate paper detailing the main issues. New Zealand’s current hate speech laws largely reside in the Human Rights Act, and relate to race, ethnicity, nationality and colour. The laws don’t include gender, religion, sexuality, or any of the other bases of discrimination used in the rest of that act or the Bill of Rights Act. This is an anomaly that needs to be changed.
The government has signalled a willingness to change a law that has only been successfully used once. The commissioners recommend that these provisions be moved to the Crimes Act and simplified. There is much research to show that online hate leads to real and significant harms, and that it has a role in radicalisation.
Christchurch was unique in that it was the first instance of a killer livestreaming his attack, giving commentary as he carried out the atrocity. The promotion of the live stream, with the help of algorithms, ensured the footage went viral.
A new bill written last year passed first reading on 11 February, after a change in composition of the government made it possible. It seeks to address the livestreaming, but has some concerning elements that could put communities at risk.
The Films, Videos and Publications Classifications Act is the one which sets out ratings for films. It allows for material to be deemed objectionable, so that it is illegal to hold or distribute. There is a process to be followed, and the reasons are made public. People have the right to appeal through the courts if they disagree with the decision.
The proposed amendments to this bill allow the Department of Internal Affairs (DIA) to appoint inspectors, who can issue interim notices deeming material objectionable. They can do this based on “reasonable grounds” – a highly subjective test, open to bias, discrimination and opening up the possibility to harass individuals and communities.
The Classifications Office is an independent organisation, though funded by government and administered by DIA. It cannot be influenced by the state. An inspector employed by DIA is the government, and can enforce takedowns via an electronic system. The interim notice can be appealed, but that takes time to prepare and action.
As an example, a person livestreams a protest. Police arrive and there is violence resulting in the death of a person. The person may have shared the video widely as evidence of a state crime, but the inspector can order an interim takedown. If the person continues to distribute, they are now committing an offence which could result in their arrest.
Their ability to appeal against the order is limited while incarcerated, but even if the appeal is successful, it may take four or five days. In which time, the arrest and any charges may cause them to lose their employment, be evicted from their rental property or suffer other damage.
The bill introduces the electronic takedown system, but provides no specific details of what it will look like nor how it will be administered. Those details will be provided in regulations, which have a much less rigorous process. An electronic system will give strong powers to government, and the details of any such system must be subject to public debate, submissions and intense scrutiny.
Any legislation should be assessed considering the worst-case scenario – what I like to call “the Trump test”. How might a hostile government misuse this legislation, and what checks and balances are in place to prevent that misuse? In this case, there aren’t enough.
While legislation serves a purpose, it deals with events after they happen. More important is the work to prevent such an event happening in the first place. Understanding the path to radicalisation and effective measures to stop it happening are crucial to any government response to the Christchurch attacks.
The best solutions happen with input from and the support of communities. Government alone cannot solve these issues. It requires strong partnerships with communities, giving them the resources and power to make a difference. Two years on from the attacks, we are still waiting for that to happen.