Harm is defined in the Harmful Digital Communications Act 2015 as causing “serious emotional distress”.

That’s what LukeCunninghamClere partner, Sally Carter told lawyers at a Cyber Law “Applying Cyber Law to the Real World” conference held this week in Wellington by the New Zealand Law Society.

The world-wide web arrived a quarter of a century ago and the cyber law that perhaps few predicted would come into effect to deal with the threat of unsanitary online harm to young people is nearly two years old.  

The Harmful Digital Communications Act 2015 was created to;

• Deter, prevent, and mitigate harm caused to individuals by digital communications.
• Provide victims of harmful digital communications with a quick and efficient means of redress.

At the presentation, Sally Carter explained and reviewed the threshold that needs to be met to convict a person of an offence under section 22 of the law.

“The person who posted the digital communication must have intended that it cause harm to the victim, that posting it would cause harm to an ordinary reasonable person in the position of the victim and that the posting of the digital communication did in fact cause harm to the victim,” she says.

What tools does the HDCA have?

• New and amended criminal offences, enacted primarily to deter and denounce the most serious cases of harm caused by posting of digital communications
• A “civil enforcement regime” made up of a set of 10 communication principles, the appointment of an “approved agency” to resolve complaints about harmful digital communications, and new District Court powers to make orders in favour of those harmed.
• Safe harbour provisions which provide online content hosts with protection from criminal and civil liability in return for correctly administering a process which allows for individuals to seek removal of harmful content from the host’s website.
• Amendments to existing legislation, including the Harassment Act, Human Rights Act and the Privacy Act, to clarify their application to digital communications.

The new and amended offences in the HDCA came into force in July 2015.

The penalties are high and a person who convicted of an offence could face two-years in prison or a fine of $50-thousand dollars. A body corporate could be fined up to $200-thousand dollars.

Success so far

Sally Carter told lawyers that in the first year of the Act, 38 charges were filed under section 22.

“By the end of 2016, over 89 charges had been filed and seven people jailed,” she says

Netsafe is the agency that deals with complaints, so what was the most common?

“They involve sexual content including what is described as 'revenge pornography' being put online when a relationship between two people has broken down,” says Netsafe’s Ben Thomas.

Controversial decisions can be challenged

While it may appear straight forward and far reaching, interpretation of the law and whether a criminal offence was committed isn’t shy of causing controversy.

Sally Carter referred lawyers to an example of a case before District Court Judge CJ Doherty in November last year.

The Judge dismissed a charge under section 147 of the Criminal Procedure Act 2011, because the prosecution had failed to cross the prima facie threshold of establishing that the victim had in fact been caused harm by the posting by the digital communication.

The case related to a broken relationship where a man threatened to post pictures of his estranged wife online, a threat that was carried out with images of the woman lying on a bed in her underwear uploaded to Facebook.

What defines harm again?

Remembering that ‘harm’ is defined in the Act as “serious emotional distress”, and despite the facts of the case being that the woman became “very depressed” and was “almost crying” and required someone with her for support, upon viewing the photographs, that was the decision made by Judge Doherty.

However in the High Court of Auckland late last month, an appeal against that decision was allowed. Judge Doherty’s decision to discharge the man was quashed and the charge is to be retried in the District Court (Police v B [2017] NZHC 526).

As the Counsel for the woman, Peter Marshall says in the judgment.

“In any event, there is nothing to suggest the Judge reformulated the statutory inquiry.  The Judge’s observations about the types of distress the complainant suffered were just that—observations.  And the Judge described exactly why, in his view, harm could not be established: “While the evidence clearly points to some degree of emotional distress, it is not sufficient to satisfy me it has reached the threshold of serious emotional distress”.