Explaining every option available under the Harmful Digital Communications Act
In the second of Craig Tatley’s two-part series about the increase in harmful online content, he outlines the support process for victims including the option of going to court.
The dramatic growth of digital harm has increased the importance of the Harmful Digital Communications Act (HDCA). One point of difference from the act and previous legislation such as the Harassment Act 1997 (HA) was the creation of Netsafe, an agency which responds to complaints where a digital communication is in breach of one of 10 communication principles.
When people are exposed to harmful content online, Netsafe is the first port of call for victims needing help.
What does Netsafe do?
Our previous article discussed the 10 communication principles that represent what a digital communication should not cause.
If an individual believes one or more of these principles have been broken by a digital communication, they can raise a complaint with Netsafe who investigates and negotiates with the parties to resolve the issue. One possible outcome to a Netsafe investigation is that it may be decided that no further action is taken. This can be because a digital communication did not breach one of the communication principles.
If the complaint cannot be resolved through Netsafe’s involvement the alleged victim may take the incident to District Court by way of a civil proceeding pursuant to section 19 of the HDCA.
Once a matter has been referred to Court by a party, Netsafe is then no longer part of the process unless the Court requests further information from the organisation.
The court proceeding
There is the option to seek an interim order (similar to an injunction) for the harmful content to be removed prior to the full trial being heard by the Court.
Before the Court can consider an application under the HDCA, the Court must first assess whether:
- Netsafe has received the matter;
- Netsafe has had sufficient opportunity to attempt to resolve the matter; or
- Netsafe need to provide more information to the Court to address these previous two considerations.
If on the evidence before it, the Court is satisfied that there has been a threatened serious breach, or a serious breach, or repeated breaches of one or more of the communication principles, and that of those breach(es) has, or are likely to cause harm to an individual, the Court can make a variety of orders:
- The harmful material should be taken down or disabled
- The defendant must refrain from, or cease the current conduct
- The defendant should
- Publish a correction; or
- Publish an apology.
- A right of reply should be given to the victim
An example of a recent HDCA prosecution is Gee v Hooper. Pebbles Hooper made a variety of Instagram posts accusing Magnolia Kitchen owner Bernadette Gee of breaching the Covid-19 lockdown restrictions, and of engaging in behaviour that amounted to child abuse. These posts led to Ms Gee suffering abuse and vitriol from other Instagram users.
The Court found that Ms Hooper’s posts breached communication principles 3 and 5, that the communications were grossly offensive to a reasonable person in Ms Gee’s position, and that the communications had been used to harass Ms Gee.
The Court ordered that Ms Hooper was not to post about Ms Gee on any social media platform, and not encourage any other person to do so, for a period of one year.
As technology continues to have a greater impact on peoples’ lives – both personally and at work – it is important individuals know about the avenues available if they are faced with any form of online harmful content. One of Netsafe’s primary roles is to help victims of harmful digital communications find a resolution without having to undergo the emotional, and often costly, process of going to court. The organisation also provides valuable guidance and solutions for prevention of issues such as online bullying.
However, the complexities of some online harm cases mean a court decision is required to reach a resolution. With the fast-paced advancements in technology, the onus is on an organisation such as Netsafe and the law to continue adapting to ensure they respond to the ever-changing forms of harmful online content and technology in general.
If you are experiencing online abuse and would like to know more about your options, contact Ben Molloy on [email protected] or 09 306 0605.
Hooper v Gee  NZHC 1854