How to protect yourself from the increase in digital harm

Examining the Harmful Digital Communications Act 2015

In the first of a two-part series, solicitor Craig Tatley charts the rise of online bullying and outlines options for Kiwis who become victims of harmful content online. 

There has been a dramatic increase in harmful online content in the last two years with New Zealand’s digital safety platform Netsafe recording a 25% rise in activity such as online harassment and spreading misinformation.

This increase means the Harmful Digital Communications Act 2015 (HDCA) is more important than ever. The Act is designed to help and support people who are dealing with serious or repeated harmful digital communications.

The HDCA was adopted in 2015 to complement the Harassment Act 1997 (HA).  Technological advancements, the evolution of the internet, and growing dominance of social media have made the HA a less potent tool to deal with harmful digital communication.

These fast-paced developments have led to the increase of instances such as the misuse of intimate photographs and revenge porn.

The HDCA was developed to adapt alongside new digital platforms, provide an easier way for people who are exposed to harmful content to report it, and to help manage harmful content.     

One of the significant points of difference between the HA and the HDCA was the creation of Netsafe, the agency which handles and manages complaints as a ‘first port of call’, while complaints through the HA have to be made through the courts as a first step. More on Netsafe’s role in the second article of this series. 

Fundamental principles and protections

The protections offered by the HDCA are based on 10 communication principles. A digital communication should not cause distress to an individual, because it should not:

• Contain 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.

If someone receives a digital communication that violates any of the above under the HDCA, there are two avenues for dealing with electronically communicated harm:

1. A civil enforcement regime, which is initiated by the complainant in conjunction with NetSafe.
2. A criminal enforcement regime, initiated by the complainant making a complaint to the police.

Complaints to the police are effectively criminal matters and are dealt with as such.

The Civil Enforcement Regime

Haigh Lyon is able to assist with the civil enforcement regime. The ethos behind this regime is to provide an avenue for a victim of a harmful digital communication to get the information taken down from being online in a relatively cost-effective and timely manner.

The starting point for the civil enforcement regime is that there must be a “digital communication” which affects an individual. The scope of the Act is very broad meaning the only communications not covered are physical written communications (E.g.: letters) or verbal communications. However, it is worth noting telephone conversations are covered. The communication must be conveyed by an electronic means.

The “affected individual” does not have to be the direct recipient of the communication, there is a broader scope to ensure a wide net of people are protected. For example, if someone shares a post on their Facebook timeline, even though it is not a “direct” communication, it is still covered in the act.

This communication must cause, or be likely to cause, the affected individual a level of harm which is defined as “serious emotional distress”.

If a person experiences, or is likely to experience, serious emotional distress from a digital communication the first step is to make a complaint to NetSafe. The HDCA prevents an individual from bringing a claim directly against the communication maker until a complaint is raised with NetSafe.

*In the next article we look at the role of Netsafe and the complaint process.  

If you are experiencing online abuse and would like to know more about your options, contact Craig Tatley on @email or 09 985 2525.