Harmful digital communication can take many forms. Whether it is an email with offensive content, or a post on a social media site that attempts to spread rumours or lies about an individual, the common theme that runs through these examples is that they are intended to harm someone.

While the word “bullying” will often make people think about schoolyard conflict, the problem isn’t limited to young people, but extends to relationships that exist between employers and employees, family members, romantic partners, social groups and tenuously connected acquaintances. Indeed harmful communication can occur between individuals that seemingly have little connection at all, often referred to as trolling.

No matter who the “actors” may be, the end result of bullying and harassment using online tools is usually the same. Communication of this type will often result in significant emotional harm to those that are the target.

While existing laws do allow people to take action against this type of communication, for example under the  Harassment or Defamation Act, this can often be difficult to access and time consuming to pursue. The Harmful Digital Communications Act provides new mechanisms to help individuals take action to reduce the harm caused by these communications.

The Act sets out:

  • new measures to help victims, and to simplify the process for getting harmful communications off the internet quickly and effectively (for example, establishing the approved agency and court-ordered takedown notices, and outlining a complaints handling process that online content hosts must use if they want the protection of the “safe harbour” provision)
  • new criminal offences to penalise the most serious perpetrators (for example, the new criminal offences of causing harm by posting harmful digital communications).

At it’s core the Act lays out 10 communications principles which define the criteria for which any digital communication may be deemed harmful.

They establish that communications should not be threatening, intimidating or menacing; grossly offensive; indecent or obscene; or denigrating of a person’s race, gender, sexual orientation or disability. The principles also encompass any encouragement for another person to create harmful communication.

A breach of one of the principles alone is not enough to take action however, the target must also be able to show that they were caused serious emotional distress.

Alongside the new legislation laid out in the Harmful Digital Communications Act, a number of consequential changes have been made to other legislation. These include;

  • Changes to the Crimes Act relating to assisting and abetting Suicide (You can read more about this here)
  • Changes to the Harassment Act to further define harassment, to include electronic communications and to change some conditions around restraining orders
  • Changes to the Human Rights Act to include electronic communications and other fora
  • Changes to the Privacy Act that amend some of the privacy principles and change the conditions related to collection, use and disclosure of information related to domestic affairs.

FAQs

  • What are digital communications?
    Digital communications are any form of communication that is transmitted via online technologies. They include
    • Emails
    • Texts
    • Website content
    • Blog posts
    • Comments sections
    • Online forums (or “Chatrooms”)
    • Social networks or social media sites
    • Phone based “Apps”
  • What is not considered a digital communication under the Act?
    They are not telephone calls, faxes, printed articles in newspapers or magazines or radio and television broadcasts. All of these forms of communication have existing laws governing their use, and complaints bodies that deal with their misuse, for example The Broadcasting Standards Authority, or the New Zealand Press council.
  • What is “Harm” under the law?
    The law describes harm as “serious emotional distress”.

How to deal with harmful communications

If you think you are the target of harmful digital communications, you should consider all the options open to you before taking any further action.

It is probably a good idea to capture evidence of the communications in case the perpetrator tries to remove it at a later date.

You could consider contacting the other party directly and asking them to stop. It is possible that they are not aware that their communications are harmful.

You could try reporting the content to the service that hosts it. It may be that the harmful content breaches the terms and conditions of the host and they may be able to remove the content, or warn the creator of it, that they are in breach of the terms of service.

Try blocking the creator, or removing any association between yourself and them (For example “Un-friend” or “Un-like”  them).

Do not retaliate. While it may seem like a good idea at the time, and it may give you a feeling of restoring some power, it is likely that this will only further aggravate the situation, and this may well harm your case should you wish to pursue civil or legal remedies down the track.

The Harmful Digital Communications Act provides for the creation of a new approved agency to deal with complaints. Once established, the agency will be able to assist you in these processes and try to help you find a resolution by “persuasion, mediation and negotiation”.

If you believe that the communication is causing serious emotional distress the police may be able to charge the perpetrators under the new law of  “causing harm by posting digital communications”.

This offence has a three part test associated with it, where there has to be consideration for not only the harm caused, but also the intent and the “reasonableness” of the communication. If you have specific questions about this then the police will be able to advise you.

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