The Harmful Digital Communications Act – Cyberbullies Beware
The Office of the Minister of Justice, in its 2013 paper responding to the Law Commission’s Ministerial briefing paper on cyberbullying and other forms of digital harassment, concluded that this modern form of bullying and intimidation has devastating effects on people and more should be done to deal with it. Despite a widely held understanding of the effects of cyberbullying, historically there have been very few avenues of redress for victims of cyberbullying in New Zealand. In response to this, the Harmful Digital Communications Act (HDCA) was enacted in 2015 to provide such avenues.
The purpose of the HDCA is to prevent and reduce harm to individuals caused by harmful digital communication (HDC) and to provide victims of HDC with a quick and efficient means of redress.
HDC is any form of public or private electronic communication, which includes text messages, online posts, photographs and video recordings that cause serious emotional distress to an individual. In R v Partha Iyer  NZDC 23957 the Court was asked to determine if the Crown (the body that brings these matters before the Courts) had sufficient evidence to support a prosecution under the HDCA. The Court held that serious emotional distress did not have to be physical, but the victim must be more than merely annoyed or upset. The key sections of the Act considered in Partha were sections 22(1) (Causing harm by posting digital communication) and 19 (Orders that may be made by Court).
Section 22(1) sets the test for determining whether a person has committed a punishable offence by posting a digital communication. The Court in Partha adopted a five limbed test to determine whether the Crown had shown that the conduct of the defendant amounted to an offence:
- Posting a digital communication
- Time that the digital communication was posted
- With intention to cause harm to the complainant
- Where posting the digital communication would cause harm to a reasonable person in the position of the victim
- Whether posting the communication causes harm to the victim.
The Court found in Partha that intention to cause harm under section 22(1) of the HDCA could be the intention to elicit a serious response of grief, anguish, anxiety or feelings of insecurity. To prove intention, the Crown must demonstrate that the defendant inflicted feelings of serious shame, fear and insecurity on the victim enabling the defendant to achieve their aim. The onus is therefore on the defendant to prove that there was no such intention or the same result could not have been achieved without inflicting serious emotional distress. In Partha, the defendant openly admitted to posting revealing photos of the victim to coerce the victim into achieving his aim; meaning that inflicting serious emotional distress could not be separated from the intention to harm.
Section 22(2) sets out a non-exhaustive list of factors which the Court may consider when determining whether the post was likely to harm an ordinary person in the position of the victim. The onus is on the Crown to satisfy this test. In Partha the Crown produced photos showing the victim in a state of undress. The Crown submitted that, due to the victim’s professional standing in the community, the pictures were likely to cause harm to the victim by damaging the victim's reputation.
The onus also rests on the Crown to prove that the information has caused harm to the victim. In Partha the District Court ruled that the Crown had not produced sufficient evidence to establish that the victim suffered serious emotional distress. However, on appeal Justice Downs stated that there was serious matter to be tried and therefore the Crown should pursue a prosecution in a full substantive trial. The matter remains before the Courts.
If a defendant is convicted, the Court will consider the factors set out in section 19(5) in sentencing. These factors include:
Whether the defendant intended to cause harm to the victim;
If the content of the communication was published;
How far it has been disseminated; and
If it is likely to cause harm to the victim.
The maximum penalties under the HDCA (section 22(1)) are:
- Imprisonment for up to two years; or
- A fine of up to $50,000.
The Court in Partha quoted Parliamentary discussions about the HDCA and determined, in conjunction with these discussions, that penalties will vary depending on the seriousness of the crime.
Accordingly, while the HDCA it still young, it has real potential to hold people who engage in cyberbullying and digital harassment accountable for the harm they inflict, and the more serious the harm, the more severe the sentence.