Yesterday, the Free Speech Union was leaked 3 major documents that put our team in a cold sweat. After some thought, we have decided to share the details with you, even though this is breaking an embargo. You deserve to know the major steps that are being taken to limit your speech.
This afternoon, at 2pm, the Department of Internal Affairs will release a consultation document on proposed changes to our censorship regime. This is a review of New Zealand's regulatory system for media and online platforms and is the culmination of two years work on the 'Content Regulation Review'. It proposes a major shift in how media and online platforms allow you to express yourself openly.
In essence, this is what you need to know:
- The Department of Internal Affairs is going to release a consultation document which proposes to have a law drafted which would establish a new 'Regulator' for online content;
- This Regulator would have broad powers, far more significant than any that exist at the moment over the content you put up on social media or other platforms. (Even the Free Speech Union's updates and emails would be subject to the Regulator's reach, as our 'platform' is larger than 25,000 users- we don't think they should have a say on what our defence of free speech looks like).
- Codes would be drafted, which would outline what content, material and speech are allowed. But Parliament won't draft the Codes. In fact, there is no representative accountability over what is included in the Codes at all.
- The draft law would just establish the Regulator, with the broad responsibilities of the Codes. Away from Parliament, the Select Committee process, and from your right to engage with politicians or vote out those you disagree with, industry, NGOs, and academics will write the codes which dictates what you're allowed to say online.
- They advise that the penalty for platforms that do not comply with takedown notices should be increased to 'reflect the seriousness of non-compliance'. Currently, it's $200,000 for each incident of non-compliance.
- This is all part of the attempts by the Government to control information and the narrative. In their definitions of safety and harm, the DIA claim that 'Content can cause harm to wider society. This might look like individuals or communities losing trust in, or access to, key public institutions such as the legal, health and education systems, [and] freedoms of identity...'
- We have till July 31 to submit on this consultation. They expect legislation to be introduced to Parliament next year.
The lack of accountability for those drafting the Codes are astonishing. Not only are the Codes (which is the part that will actually be used to silence your voice online) not drafted in Parliament, where the public can have input, the discussion document specifically says that if it doesn't include the things that the Regulator wants, they can draft the Codes as they wish to 'make [it] acceptable.' This is effectively saying "You'll be free to develop your own codes, but not so free that we won't step in if you decide not to censor yourselves."
The discussion document notes that the Codes of practice will outline the 'processes for platforms to remove content and reduce the distribution of unsafe content'. 'Unsafe content'. What's that? It's content that is 'harmful'. Does that make it clearer? The use of words like 'unsafe' and 'harm' give us a very clear indication of how these Codes are going to be used. As you know, to simply disagree with someone now, or how they identify, is often considered 'harmful'.
This law would put hate speech laws back on the table
This isn't even a theory. Look at number 87 below, the discussion document specifically says that the work the Law Commission is currently doing would fit into this legislation later on. This Law, and more importantly the Regulator and Codes, could be used to exclude entire perspectives and worldviews from discourse online.
Last year, when we coordinated opposition to the Aotearoa New Zealand Code of Practice for Online Safety and Harms, we insisted that this 'voluntary code' was just the thin edge of the wedge. We were concerned that some speech would be prohibited online but legal in person. Now, many of the same principles as those found in that voluntary code will carry the weight of law. We are preparing a campaign to push back against this overreach, but we can't do it alone. Would you help?
Let me be clear. We have never opposed the Chief Censor's role of removing patently objectionable content like terrorist activity. We're not talking about the extreme material that is already illegal and is already regulated by the Chief Censor's Office. We're talking about the expression of your beliefs, opinions, and experiences that other's dislike or disagree with.
New Zealand already has significant laws in this area, such as the Harmful Digital Communications Act (which already goes too far). While there are problems with the way minors interact online, or the material they consume, is regulation really the answer?
The discussion document tells us that these changes are in step with the EU's Digital Safety Act, Australia's Online Safety Act, and the UK's draft Online Safety Bill. Why does that not fill us with confidence? Our counter-part in the UK has been fighting for two years to oppose the 'Online Safety Bill', because the exact same pitfalls apply- this isn't about 'safety' and reducing 'harm', it's about silencing those that dare express unconventional or controversial views.
There is an awful lot happening in the fight for free speech at the moment- the Free Speech Union has more than we can deal with on our plate. But when our team saw the proposals, we knew we couldn't just sit by. Yet again, this is another major attempt at silencing Kiwis. We've seen them off before, and I'm sure we can do it again.
The implications for the ability for the public to debate major questions will be seriously undermined by a Regulator empowered to silence voices online. This is not the free and open internet so many have imagined, that has led to greater democracy. This is not the Kiwi way, to simply suppress views we dislike.
Jonathan and the team are already preparing briefing materials and have started on our submission to this consultation. We'll provide you with the resources and tools you need to push back against this censorial overreach next week. If this becomes law, even just the supposedly benign role of an online speech 'regulator', we lose the ability to submit on the 'Codes', and we lose our online speech rights.
Please don't let that happen. Help us push back. We've got the team in place, but with all the battles we're facing we need the resources. DIA won't be pleased we've bet them to the punch and got out of the gates ahead of them, but when we're up against those undermining basic liberties, we don't have to play by their rules.
Together, we'll push our would-be-censors back once more.
P.S. The DIA's "Review of New Zealand's regulatory system for media and online platforms" is cover for more Government control of Kiwis' speech. This is going to be a big fight, but we're up for it if you are.