Online harassment and the Harmful Digital Communications Act 2015

November 2024

The internet has unlocked possibilities that would have been inconceivable only a few short decades ago. Yet for all of the clear benefits that it has brought, the rise of the internet has also had some less positive effects on society. One of the most notorious of these is the phenomenon of online harassment and cyberbullying. 

The Harmful Digital Communications Act 2015

The primary law in New Zealand addressing online harm is the Harmful Digital Communications Act 2015. The stated purpose of the HDCA is to deter, prevent and mitigate harm caused to individuals by digital communications, and to provide victims of harmful digital communications with a quick and efficient means of redress.

“Digital” communication in this context means any form of electronic communication, including but not limited to text messages, emails and social media posts.

To achieve its purpose, the HDCA establishes a civil framework for victims to seek takedown and associated orders through the District Court, and also includes specific criminal offences that can be investigated and prosecuted by the Police. 

The role of Netsafe

Netsafe is a non-profit organisation that is tasked specifically with addressing online harm in New Zealand. It has been appointed as the “Approved Agency” under the HDCA and is tasked with receiving, assessing and investigating complaints from the public about harmful digital communications.

Netsafe's most recent annual report states that it received 23,213 reports of online harm over the 2022/2023 reporting period, encompassing such things as harmful hate speech, scams, privacy breaches, school incidents and child abuse material. The period between April to June 2023 was assessed as being Netsafe’s busiest quarter ever to date for receiving such reports.

Communication principles 

The HDCA sets out ten communication principles which provide guidance when assessing whether a particular digital communication may be considered harmful. 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.

Both Netsafe and the courts are required to take the communication principles into account when applying the HDCA, and must also act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.

Civil orders under the HDCA

The District Court can make a number of different orders under the HDCA, including orders requiring a person to take down or disable material, to cease and refrain from the conduct concerned, to not encourage any other person to engage in similar conduct, and to publish a correction and/or an apology. The court can also make various orders against an online content host to remove material and to release information to the court about the identity of an anonymous poster.

Non-compliance with these orders is a criminal offence punishable by up to six months’ imprisonment or a fine of up to $5,000 (or $20,000 for body corporates).

The affected person must file a written application together with supporting evidence, and there will then be a hearing to determine the application. The defendant will usually be served with the application and have the opportunity to oppose it before any orders are made. In urgent cases, interim orders can be sought and granted on a “without notice” basis, which means that a Judge can make a provisional decision without first hearing from the defendant.

Before applying to the court, a person affected by a digital communication must first register a complaint with Netsafe, which has the statutory function of using advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints. If Netsafe is unable to resolve the complaint, they will provide a summary report of their investigation which must be attached to any subsequent court application.

How we can help

We’ve helped a number of clients obtain orders under the HDCA in circumstances where Netsafe was unable to negotiate a satisfactory resolution to their complaint. We can prepare the application for orders together with your supporting evidence, and attend at any necessary court hearings.

Contact our litigation team if you need legal assistance with an online harassment situation.