Until recently victims of online attacks had limited options to protect themselves. Victims resorted to either harassment or defamation laws, which can be time consuming and difficult to access, or the goodwill of online content hosts to remove the offending content.

In response to these shortfalls in 2015 the Harmful Digital Communications Act (HDCA) was enacted. The HDCA introduced a new criminal offence for deliberately harmful digital communications and civil redress regime for less harmful digital communications.

Criminal offence

A person now commits a criminal offence if they:

  • Deliberately publish or communicate information digitally about a victim;
  • The communication actually causes the victim serious emotional distress; and
  • The communication would cause a reasonable person in the victim’s shoes serious emotional distress.

The third requirement of this offence depends on the circumstances. For example it is likely that a reasonable person in the victim’s shoes would suffer serious emotional distress where the victim is young and/or vulnerable, the victim’s family/friends/peers can see the communication and the communication is harsh or extreme.

Note that, even if the communication about a victim is true, a person can still commit an offence (unlike defamation law, the truth of statement could be argued as a defence).

This offence carries heavy penalties. If a person is convicted, they could face imprisonment for up to 2 years or a fine of up to $50,000 if an individual, or up to $200,000 if a company.

Civil regime

The HDCA has also introduced a civil procedure for victims to protect themselves from online attacks.

Victims will be able to report digital communications to NetSafe, the government-appointed agency that will provide advice on digital communications, investigate complaints, and attempt to reach resolutions between complainants and content authors.

NetSafe will investigate serious digital communications that are, for example, obscene, threatening or false, or discriminatory or disclose sensitive or confidential information about the victim, and will attempt to resolve the complaint.

If the complaint has not been resolved with NetSafe, the victim will be able to apply to the District Court for help.

If the District Court is satisfied that the digital communication is serious and likely to cause serious emotional distress to the victim, then the Court can make some useful orders.

The District Court can order:

  • the offending communication/material to be removed/disabled;
  • the offending person to stop the offending conduct or stop encouraging other persons to engage in similar conduct;
  • a correction to be made;
  • the victim’s reply to be published; and/or
  • an apology to be published.

If the offending person fails to comply with the orders then they will commit a criminal offence and can face significant penalties, including imprisonment.

‘Safe harbour’ for online content hosts

The HDCA also introduces a new ‘safe harbour’ process for online content hosts, like Facebook and Twitter. When followed, online content hosts are protected from civil or criminal liability in relation to digital communications hosted by them.

Essentially this process requires the online content hosts to promptly investigate and respond to user complaints, and, if appropriate, remove offending material.

Our more in-depth article on protecting your online reputation is linked here

Jason Klapproth
Solicitor
Wellington.

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