Cyberbullying and the law in NZ: Harmful Digital Communications Act

Bullying, harassment and abuse are sadly nothing new, and they’ve long gotten people on the wrong side of the law.

But the internet and other forms of digital communication have opened up all sorts of new opportunities for those negative forms of communication to rear their ugly heads in ways the law didn’t necessarily account for.

Which is why the law has grown and adapted. The Harmful Digital Communications Act 2015 (HDCA) aims to “deter, prevent, and mitigate harm caused to individuals by digital communications”, and “provide victims of harmful digital communications with a quick and efficient means of redress”.

What are harmful digital communications?

So there are a couple of things we need to define there: “digital communications”, and “harmful digital communications”.

Digital communications cover a wide ambit:

Any form of electronic communication; and … includes any text message, writing, photograph, picture, recording, or other matter that is communicated electronically.

That includes all forms of social media, television, radio and mobile phone communication. So there are a lot of ways someone can cause harm via digital communication.

But what counts as that “harm”? According to the HDCA, it’s “serious emotional distress”. And the Act provides some communications principles which help define this. They state that a digital communication should not:

• disclose sensitive personal facts about an individual
• be threatening, intimidating, or menacing
• be grossly offensive to a reasonable person in the position of the affected individual
• be indecent or obscene
• be used to harass an individual
• make a false allegation
• contain a matter that is published in breach of confidence
• incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual
• incite or encourage an individual to commit suicide
• denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.

Examples of harmful digital communication

Some successful prosecutions under the HDCA have included:

• A communication sent to a shared email account accessible by workmates, involving 11 photographs of the complainant in various stages of undress, including three photos of her exposed breasts and four photos in her underwear.
• Photographs posted on Facebook showing the complainant naked wearing only an open dressing gown with her breasts and groin area clearly on display. Another was of her in a seated position with no top on and her breasts exposed.
• Demeaning and insulting messages sent with a mobile phone.
• Social media posts where they embarrassed the targeted person because all of their friends and family could view the photos and comments.
• The use of Instagram where the communication was in the form of a number of hashtags and phrases which together amounted to threats of damage to property and personal injury.

How to make a complaint under the Harmful Digital Communications Act

If you think a communication threatens your safety, then you should report it to the Police.

Otherwise, you should go to Netsafe, which is tasked with handing complaints under the HDCA. Their role is to:

• receive and assess complaints about harm caused to individuals by digital communications
• investigate complaints
• use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints

And as a first port of call, their staff can give you free and confidential advice about any harmful digital communication you think you might have received.

You can report any problems to Netsafe via an online form, by emailing help@netsafe.org.nz, or by calling 0508 NETSAFE (638 723). If you can, it’s important to keep records of what you’re complaining about—take screenshots, or save relevant URLs.

Depending on the situation, they might give you advice on how to stop the problem, they might try and get problematic content removed on your behalf, or they might arrange contact with the person you believe is responsible for the communication (but only with your consent).

If the problem can’t be solved there, or Netsafe recognises that there’s a clear breach of the HDCA, Netsafe will refer cases to the District Court. The Court can make an order to remove content, or impose penalties.

Members of the public need to go to Netsafe before going to the District Court. But the Police can apply directly to the Court when a communication threatens a person’s safety.

Criminal penalties

The HDCA creates a new criminal offence of causing harm by posting digital communication. It’s punishable by:

• up to 2 years' imprisonment or
• a maximum fine of $50,000 for individuals and a fine of up to $200,000 for companies.

The Act also amended the Crimes Act, broadening the previous law against inciting someone to commit suicide. It is now an offence, regardless of whether or not the victim attempts to take their own life (previously, it was only an offence if the victim committed suicide or attempted to). If convicted, an offender may be sentenced to up to 3 years in prison.

Civil remedies

The District Court also has a broad range of civil remedies available. It can:

• order that material be taken down
• issue cease-and-desist orders
• order publication of a correction, an apology or allow the complainant a right of reply
• order the release of the identity of persons making anonymous communications
• order name suppression for any parties.

Under this process, the court orders persons or companies take certain actions. Non-compliance with such orders constitutes an offence. Offenders may be sentenced to up to six months in prison or fined up to $5,000. Companies can be fined up to $20,000.

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