2023 Public Consultation: Safer Online Services and Media Platforms

The PSGR does not support the Department of Internal Affairs’ (DIA) proposal for Safer Online Services and Media Platforms regulatory system.[1] The proposals relating to a Regulator, a Code of Conduct and the ‘safety objectives’ are unsuitable and inappropriate and must be discarded. PSGR notes that the effect is to claim that regulatory activities can set aside peoples’ constitutional rights. Thus, this proposal can be challenged to be unconstitutional – and the related statutory and regulatory system to constitute unlawful governmental overreach.
Such constitutional change would create extraordinary powers that would corrode and severely impair or destroy our constitutional democracy. The notional primary pillar of democracy is freedom-of-expression, which protectively guarantees other rights.
Such a statutory and regulatory system would create government powers over citizens’ thoughts, conduct, through the power to prevent freedom of expression, including the effect of placing a chilling (restraining) effect on freedom of expression. It would breach the social contract between the governors and the governed. The effect may be to encourage conversations of a type that are associated with authoritarian regimes that can act freely as statutory tyrants.
We consider this proposal presents an opportunity for the abuse of power by the New Zealand government, and places immense power in the Department of Internal Affairs.
Those proposals contain direct potential for the regulatory powers to undermine free and frank speech in New Zealand. Arguably, the government has no constitutional right to advance any related statute into the House.
There is no need for a regulator nor a Code of Conduct. Existing structures and legislation continue to be fit for purpose as there are already limits on extreme content.
A robust democracy requires freedom of expression and that conflicting, contradictory and challenging information and opinion is shared by society. A major study of why nations fail or succeed was published in 2014 by Professor Fukuyama.[2] It found that a successful state requires three elements. These are competence; a strong rule-of-law; and democratic accountability.[3]
The effect would be to corrode our Nation’s sense of community that provides ‘the cement’ that makes our rule-of-law work. Democratic government requires an informed citizenry who have autonomy to draw attention to arbitrary and tyrannical behaviour by governments and instances where the information produced by powerful (public and private) institutions may be narrowly contrived, inadequate for purpose, represent private interests, misleading or misrepresentative.
There is public good in sharing opinion and debating controversial information. Polarisation across communities and interest groups occur precisely when principles, values, contradictions, uncertainties and conflicts of interest are not brought to the surface. The veracity of a claimed fact, and sound judgement, can only arise when these issues are turned over.
In contrast, the DIA’s proposals appear to reflect an intention to take explicit statutory powers to command peoples’ thoughts and conversations.

For access to the complete submission please click HERE.

“The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

― John Stuart Mill, On Liberty

REFERENCES

[1] Department of Internal Affairs: Public Consultation: Safer Online Services and Media Platforms. https://www.dia.govt.nz/safer-online-services-media-platforms-consultation

[2] Chapter 3; Francis Fukuyama Political Order and Political Decay – From the Industrial Rvolution to the Globalisation of Democracy Farrer, Straus and Giroux, New York, 2014.

[3] Acknowledgement:- Democracy in Aotearoa New Zealand : A survival guide by Geoffrey Palmer and Gwne Palmer-Steeds.

[4] Renieris, E.M. (2023). Beyond Data: Reclaiming Human Rights at the Dawn of the Metaverse. The MIT Press

[5] Palmer G. & Butler A. 2018. Towards Democratic Renewal. Victoria University Press. Page 8.

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