David Harvey
Retired district court judge
The great thing about the left is that they never fail to disappoint. Rather like Cassandra, I have been predicting that Labour and the left would develop an interventionist online policy. In fact in September I suggested that when Hipkins announced Labour’s AI policy it was something of a Trojan horse. One of the elements there was the presence of an online regulator.
The desire for an online regulator is not new. It was proposed as part of a sweeping plan back in 2021–2022 known as Safer Online Services and Web Platforms advanced by the Department of Internal Affairs – the censorship and web-blocking people. That proposal was deep-sixed by Brooke van Velden.
But now Labour through its Media Spokesperson Reuben Davidson has released the social media and online content policy. And what is proposed is pretty much what I have suggested the left would advance.
I hate to say, “I told you so….”
The Trojan horse is there. This time it comes in the form of “safety” and “protecting children”. And in addition there is a ‘Nanny State’ element. As the flier document states, “When all their friends are online, saying ‘not yet’ to your kids can be hard.” The essential message is ‘We are from the Labour-led government and we are here to help you parent your kids.’
There is nothing new about Labour’s proposals to carry on the National under-16 social media restrictions, although the effectiveness of such a proposal is debatable, as the Australian experience has shown.
Another proposal is to require social media companies to enable users to choose their feeds so that they can personalise their recommendations or see only posts from known people and accounts. The rationale is that unwanted or unwelcome material will be stopped. The plan provides the ability to switch back to the algorithm-controlled feed if you want.
That is not too objectionable, because it is a user-based decision to opt-in or opt-out and not a state-based means of control.
But the main thrust of the policy is directed towards “safety”, but, in fact, the Trojan horse of safety contains inside it control by the state.
Building on the AI action plan – which I warned about in September – Labour will establish an independent digital regulator to oversee online platforms and make sure they meet their responsibilities.
The watchdog will have powers to enforce safety standards, investigate harmful practices and take action against companies that break the rules.
But the plan completely ignores the Harmful Digital Communications Act and the role of Netsafe as the approved agency under that legislation. The HDCA is a reactive model – it provides for a response to harm.
The Labour model is a prior restraint model. It proposes the presence of a regulator together with a Digital Duty of Care – something that is proposed in Australia and that has gone live in the UK.
The Digital Duty of Care will put basic responsibilities on platforms that provide online services.
Safer Online Services suggested the development of codes of standards for different types of provider – based on the Broadcasting Standards Authority Codes for broadcasters.
Labour takes a giant leap forward with the Digital Duty of Care Proposal. The objective ostensibly is to provide stronger protections for under-18s against harmful content, bullying and design features that encourage excessive use or damage self-esteem.
Remedies are already available under the HDCA which provide for that.
Stronger protections against deepfake abuse, including non-consensual sexual images, and powers to take down harmful ‘nudify’ apps and sites.
Once again the HDCA covers these issues.
Finally, platforms will have to identify risks, show what they are doing to keep people safe and take action when things go wrong.
And then, finally, the kicker. The policy states clearly:
The aim is to prevent harm in the first place, rather than leaving people to deal with the consequences.
That is prior restraint. That is the basis for censorship. That clearly sends a message that the Labour policy is not about safety at all but about the control of content and control of the messaging that takes place through the most diverse and distributed network of communications ever devised.
But wait – there’s more. The Labour media spokesperson announced that Labour would not follow through with the disestablishment of the Broadcasting Standards Authority. Rather they would review the matter and take steps to expand its powers.
This would be in accordance with option two of the regulatory impact statement accompanying the disestablishment bill and about which I wrote on 12 October.
But the Labour proposal goes a little further. Mr Davidson would retain and modernise the Broadcasting Standards Authority rather than abolish it, with reforms potentially extending its oversight to online streaming and digital content.
This means that online content distributors, like the Platform and Reality Check Radio, would come under the jurisdiction of the BSA and be subject to their standards and codes and their complaints processes.
This would be a significant erosion of the liberty that those providers have enjoyed, although the Platform has not appealed against the decision of the BSA whereby it arrogated to itself jurisdiction over online content.
But if the BSA powers are to be extended to digital content, does this extend to platforms such as Substack? For myself I try to maintain a level of dignitas in the language that I use in my posts but nevertheless some of the reactions are – well shall we say interesting.
But on the other hand, Saurons have not fared well at the hands of Halflings.
Labour also promises to revive the Fair Digital News Bargaining Bill to require major technology companies to compensate New Zealand news publishers. I am sure that readers will remember the Public Interest Journalism Fund (PIJF).
The Fair Digital New Bargaining Bill may not be a state handout to news media but it is certainly a state-enabled process by which money will move from the platforms to news media – assuming that the platforms want to play ball. And have no doubt about it. Mainstream media will be grateful. I am willing to bet that Stuff will be first to bend the knee.
Finally and before I close, let us not forget that the Department of Internal Affairs is lurking in the background. I doubt that they would not be front and centre as a regulator. That would be too obvious an example of state control. But they are there, in the background with $30 million in funding over the next few years to engage in online regulation processes.
I have described the control of the internet as the Holy Grail of Governments. Once they control the messaging they can control everything else.
Remember the 1:00 pm TV announcements from the Podium of Truth and the suggestion that contrary messaging be taken with a grain of salt? Hipkins was complicit in that little farce.
And if the Labour proposal is not quite the Holy Grail, certainly they are approaching the gates of the Grail Castle. And the implications for control of expression and for the fate of freedom of speech are most concerning.
This article was originally published by A Halfling’s View.
