K3 Legal director Julie Ding discusses the Harmful Digital Communications Act as a defence
K3 Legal has been involved with a number of cases involving harassment or restraining orders. Recently, we have been approached to advise on what happens when harassment happens online – this has become increasingly common especially post-COVID-19.
One option for individuals when confronted with hurtful, targeted communications online is to pursue their options under the Harmful Digital Communications Act 2015 (HDCA). This is a relatively new area of our law, and has not been tested fully in our Courts yet. It is also aimed at protecting individuals and not companies, so this needs to be factored in when considering whether a particular communication falls within the Act.
There are a few things you should do first:
- Refer the digital communication to Net Safe as a complaint. Net Safe can request the online provider to provide a response to your complaint and this may resolve the issue. Please also note that referring the communication to Net Safe is required before you can apply for any orders under the HDCA.
- You can notify the host of your complaint regarding the online content from which the communication was sent or was communicated on.
If none of these options address the problem or if the communications continue, then the next step would be to bring proceedings.
Pursuant to s 11 of the Act, any of the following persons may apply to the District Court for an order under section 18 or 19 (which will be expanded on below)
- an individual (the affected individual) who alleges that he or she has suffered or will suffer harm as a result of a digital communication;
- a parent or guardian on behalf of the affected individual;
- the professional leader of a registered school or his or her delegate, if the affected individual is a student of that school and consents to the professional leader or delegate bringing the proceedings;
- the Police, if the digital communication constitutes a threat to the safety of an individual.
The type of orders that the District Court can make include interim (s 18) and on application, where one or more of the following orders is made against a defendant (s 19(1)):
- an order to take down or disable material;
- an order that the defendant cease or refrain from the conduct concerned;
- an order that the defendant not encourage any other persons to engage in similar communications towards the affected individual;
- an order that a correction be published;
- an order that a right of reply be given to the affected individual;
- an order that an apology be published.
The District Court may also on application make one or more of the following orders against an online content host (s 19(2)):
- an order to take down or disable public access to material that has been posted or sent;
- an order that the identity of the author of an anonymous or pseudonymous communication be released to the court;
- an order that a correction be published in any manner that the court specifies in the order;
- an order that a right of reply be given to the affected individual in any manner that the court specifies in the order.
The District Court may, on application, make an order against an internet protocol address provider (IPAP) for the identity of an anonymous communicator to be released to the court (s 19(3)).
The Court may also do one or more of the following in making a direction that applies an order provided for in subsection (1) or (2) to other persons specified in the direction. If there is evidence that those others have been encouraged to engage in harmful digital communications towards the affected individual, a declaration can be made that a communication breaches a communication principle, and/or an order can be made to suppress the names of any specified parties (s 19(4)).
In deciding whether or not to make an order, as well as on the form of an order, the court must take into account the following (s 19(5)):
- the content of the communication and the level of harm caused or likely to be caused by it;
- the purpose of the communicator, in particular whether the communication was intended to cause harm;
- the occasion, context and subject matter of the communication;
- the extent to which the communication has spread beyond the original parties to the communication;
- the age and vulnerability of the affected individual;
- the truth or falsity of the statement;
- whether the communication is in the public interest;
- the conduct of the defendant, including any attempt by the defendant to minimise the harm caused;
- the conduct of the affected individual or complainant;
- the technical and operational practicalities, and the costs, of an order;
- the appropriate individual or other person who should be subject to the order.
In doing anything under this section, the court must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.
The Court also has additional powers to vary the duration and conditions or any order, or to discharge an order on its own initiative whether or not an application is made (s 20). If the Court is considering an application for an order against an online content host under s 19(2)(a), i.e., a takedown order; 2(b) to release the identify of an anonymous or pseudonymous communication; an order under s 19(3) against an IPAP to release the identify of an anonymous communicator; or a direction applying an order to other persons when there is evidence that these parties have been encouraged to engage in harmful digital communications under s 19(4)(a), then a technical adviser must be appointed (s 17(3)). This technical adviser’s advice will be given weight by the Judge as the Judge thinks fit to determine an application under s 19 of any appeal.
Non-compliance with an order under s 18 and 19 is an offence, and a person who commits an offence can be subject on conviction to (s 21(2)):
- in the case of a natural person, imprisonment for a term not exceeding 6 months or a fine not exceeding $5,000;
- in the case of a body corporate, a fine not exceeding $20,000.
A person who causes harm by posting digital communication is also committing an offence (s 22). A person who commits an offence against this section can be subject on conviction to:
- in the case of a natural person, imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:
- in the case of a body corporate, a fine not exceeding $200,000.
The HDCA also amends the meaning of “harassment” in the Harassment Act 1997 to include cases wherein offensive material about someone is placed in any electronic media, where it remains for a protracted period (s 3(4) of the Harassment Act 1997). This means that there is now clarity around the use of electronic media as grounds for a restraining order application under this Act.
There is obviously a lot of different types of communications that may or may not fall within the ambit of the HDCA. This primarily relates to the purpose of this Act, which is to deter, prevent and mitigate harm caused to individuals by digital communications, as well as to provide victims of harmful digital communications with a quick and efficient means of redress (s 3).
Harm means serious emotional distress, and while it is a straightforward definition, the bat for the evidential burden this requires is set high. Our interpretation is that while general hurt feelings may not be enough, it would depend on the factors as set out above in 19(5), and every case would turn on its own facts.
Get in touch if you want advice.
This article was provided by K3 Legal.
Highly regarded for the clarity and sense she brings to a case, and for her understanding of a courtroom, Julie is an important member of K3’s advocacy team. Julie plays a strong role in complex litigation in the senior courts, especially cases involving fraud, complex recoveries and other scenarios involving invasive remedies. Many of her cases involve international cross-border issues. Julie has undertaken a large amount of trial and hearing work in the lower courts as lead and has appeared as counsel on several High Court jury trials.
Consistent with K3’s ethos that advocates should make their skills a specialty, rather than specialise in the subject matter, the cases that Julie handles cover a range of civil, criminal and family work. Julie is often instructed by other practitioners to handle cases and is often in demand from the criminal bar on important cases. Julie was a member of the Auckland District Law Society criminal law committee, is certified as a category 4 criminal legal aid provider and speaks fluent Mandarin