Understanding Harmful Digital Communications
The Harmful Digital Communications Act 2015 tackles some of the ways people use technology to hurt others. It aims to prevent and reduce the impact of online bullying, harassment, revenge porn and other forms of abuse and intimidation. Cyberbullying and other modern forms of harassment and intimidation can have a devastating impact on people, especially children and teenagers.
The act sets out:
Measures to help people affected by harmful digital communications by providing access to a complaints agency (Netsafe) and court ordered remedies; and
New criminal offences to penalise the most serious offenders.
Digital communications are any form of electronic communication including emails; texts and pictures; website content; blog posts; comments; online chat forums; Social networks or social media sites; and phone-based apps.
Harmful digital communications can take a variety of forms. They include when someone uses the internet, email, apps, social media or mobile phones to send or publish threatening or offensive material and messages; spread damaging or degrading rumours; or publish online invasive or distressing photographs or videos.
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 colour, race, ethnic or national origins, religion, gender, sexual orientation or disability
Netsafe is the approved agency to take complaints of harmful digital communications and informs people about the options that are available to them to remedy the situation. Their service aims to lessen the harm caused to people targeted online by using persuasion, mediation and negotiation to help reach a resolution for both parties involved. Netsafe cannot punish people for their actions online or force them to act.
The act also includes criminal offences that are dealt with by Police. Under the act it can be illegal to send messages and post material online that deliberately cause somebody serious emotional distress.
The main role of Police is investigating these cases of “causing harm by posting digital communication”. Police and Netsafe need to ensure that any online content required as evidence is not removed or taken down prior to being captured. Generally, if Police are involved then Netsafe should also be made aware of the matter.
Police may also receive complaints or identify situations where the threshold of serious emotional distress is not reached. In these cases, they can be referred to Netsafe for them to engage in the issues identified.
The District Court has a new civil process that provides a relatively cheap legal avenue for dealing with serious or repeated harmful digital communications. The court will deal with cases where it’s alleged someone has or will suffer harm and will investigate whether there’s been a serious breach, a threatened serious breach or a repeated breach of one or more of the 10 communication principles outlined in the Act. The Act also contains several safeguards to balance reduction of harm with people’s rights to free speech.
The most useful thing for parents to understand about the Harmful Digital Communications Act is the way the 10 communication principles define what is good or bad behaviour online. Anyone in New Zealand including young people or parents on behalf of their child can get help from Netsafe. The options available under the Act will reflect the age of the people involved in an online incident.
A criminal offence under the HDCA is subject to the same youth justice processes that apply to other offences. This means the offences will not be applied to children under the age of 14 but can be applied to young people aged 14-16 under the youth justice system.
If you want help or expert incident advice, you can contact Netsafe. Their service is free, non-judgmental and available seven days a week.
Call toll free on 0508 NETSAFE (0508 638 723)
Online report at netsafe.org.nz/report
Text ‘Netsafe’ to 4282