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Harmful Digital Communications Cyber-Bullying And Harassment

December 2020

The Harmful Digital Communications Act 2015 (HDCA) has been in force for several years, but in our experience most people remain largely unaware of its purpose and provisions.

 

The HDCA criminalises the worst forms of digital bullying and harassment and also provides a relatively fast and inexpensive civil procedure for dealing with other serious or repeated harmful digital communications. 

Criminal offence

Under the HDCA, it is a criminal offence to cause harm (defined as “serious emotional distress”) by posting a digital communication. Specifically, it is illegal to post a digital communication with the intention that it cause harm, where posting the communication would cause harm to an ordinary person in the position of the victim and where harm does in fact result to the victim.

 

For a person, the maximum penalty on conviction is two years’ imprisonment or fine of $50,000, while the maximum penalty for a company is a fine of $200,000. Prosecutions are conducted by the Police in the District Court. In such cases, the Court will weigh factors such as the language used, the age and characteristics of the victim, how widely the communication circulated, and whether the communication was true or false.

Civil process

The HDCA also establishes a procedure for obtaining takedown and other associated orders from the District Court. If someone considers that they are the victim of a harmful digital communication, they can seek an order from the court that the originator of the communication take down the material. 

 

Associated orders can made where appropriate, including orders that the person refrain from engaging in similar conduct, publish a correction or apology, and not encourage anyone else to engage in similar communications. In some cases, orders can be sought against hosts of content as well.

 

The HDCA requires that a person seeking any court orders first try to resolve the issue with Netsafe, which is an approved agency under the Act. Netsafe will try to resolve the matter on a voluntary basis by using negotiation and mediation. If they are unable to successfully resolve the matter, Netsafe will provide a written summary of their actions that must be attached to any application to the court.

Conclusions

If you are the victim of cyber-bullying or harassment, Netsafe should be your initial point of contact (netsafe.org.nz). If you consider that a crime has been committed, you can of course report it directly to the Police. If Netsafe or the Police are unable to resolve the matter to your satisfaction, we are able to assist with making applications to the District Court.