Harmful Digital Communications Act: recent cases, changes and calls for review
Mon 09 May 2022
Recent cases and media articles have drawn wider attention to increasing gender-based cyber violence.
Cases and media highlight Harmful Digital Communications Act
These cases have drawn attention to the Harmful Digital Communications Act (HDCA), with advocates and experts calling for a review of the Act and the HDCA Approved Agency, Netsafe.
In one case, Christchurch MP Sara Templeton went to court under the HDCA to determine who was behind a sustained campaign of online harassment against her. Sara shared her story with media outlet Stuff, highlighting how she worked with Netsafe. Journalist Michelle Duff has also highlighted politicians experiences of gender-based online violence, abuse and threats.
While Sara Templeton's case highlights a successful outcome through the HDCA, another case highlights limitations and opportunities for improvement. Media outlet Newsroom highlighted the experiences of two women whose former partner used the HDCA to further harass them. The women had previously each had a relationship with the man, each woman had a protection order against him, and he had been convicted of breaching both protection orders. The man made a complaint to Netsafe under the HDCA against one of the women. Netsafe provided him with information which he used to file court proceedings under the HDCA against both women and a third woman, who had supported the victims. Netsafe refused requests from the women to release information to them about the complaint. One of the women filed a complaint with the Office of the Privacy Commissioner who found that Netsafe had breached the Privacy Act and had interfered with the women's privacy, and referred the three women to the Director of Human Rights Proceedings. The Human Rights Review Tribunal found that Netsafe breached and interfered with the privacy of the three women, and has ordered Netsafe to pay $100,000 in damages.
Newsroom spoke to the women whose privacy was breached, reporting that "...two of the women demanded greater scrutiny of the $4 million in public contracts that have been awarded to Netsafe, and of any public funding sought by Cocker's new company, the Online Safety Exchange Ltd." Martin Cocker is the former CEO of Netsafe and was ultimately responsible for the decisions related to this case. He resigned in November 2021. Newsroom also reported that one of the women also raised concerns about Netsafe's understanding of "...the nuances of coercive control and abuse" and whether the organisation was appropriate "...to be funded as an agency to assist victim survivors of abuse."
In a November 2021 article victim advocate Ruth Money and lawyers Arran Hunt and Kathryn Dalziel called for improvements in the HDCA process and protections. They also called for improvements in training and response for both Police and Netsafe in relation to victims of violence.
In an August 2021 interview with RNZ, legal researcher Paulette Benton-Greig noted gaps in the options available to victim survivors to receive assistance and support under the HDCA or when working with Netsafe, such as cases where the person refuses to remove the digital communication but the victim survivor does not want to take action through the courts. She also highlighted the lack of options for further accountability or education for individuals who cause harm after the initial online incident is resolved through Netsafe.
Changes to laws addressing harmful digital content
The Harmful Digital Communications Act 2015 was recently amended through the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act 2022, which came into effect in March 2022. It amends the HDCA to make it an offence if a person posts intimate visual recordings without the consent of the person in the recording, or if the person is reckless as to whether the victim has given consent. The changes also include the ability for the Court to make interim orders during proceedings which can include orders to take down or disable the material. Previously, to be considered an offence it had to be proven that the person who shared the content intended to cause harm, and the harm had to meet a threshold. The Ministry of Justice news on the Changes to New Zealand’s Harmful Digital Communications Law noted "The new offence recognises that it is inherently harmful to share an intimate visual recording of someone without their permission. The Police now only need to prove in court that the content has been shared or posted without consent – there is no requirement to prove harm." For more information see the Netsafe summary of the Amendment Act.
The Films, Videos, and Publications Classification Act 1993 was recently amended by the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Act 2021, which came into law in February 2022. It amends the Act to criminalise the livestreaming of objectionable material and introduces new enforcement tools for government. For more information see the Te Tari Taiwhenua | Department of Internal Affairs media release New tools to deal with harmful illegal material online and information on NZ’s process for responding to violent extremism online.
In March 2022 the Australian Government eSafety Commissioner published Women in the Spotlight: Women’s experiences with online abuse in their working lives. The research involved a survey of 1,491 women who were working or had recently worked, and 20 interviews with women who had experienced online abuse in their working lives. One in three women surveyed experienced online abuse in a work context. We have previously highlighted research and information about gender based cyber violence in Aotearoa New Zealand and legislation and policy work in Europe to address gender based cyber violence.
The Disinformation Project published a brief on Understanding mis- and disinformation in Aotearoa New Zealand (November 2021) and a Working Paper: Mis- and disinformation in Aotearoa New Zealand from 17 August to 5 November 2021 (November 2021). The Disinformation team is an interdisciplinary team brought together by Te Pūnaha Matatini, a Centre of Research Excellence hosted by the University of Auckland. Also see the article .nz, harmful content, and how we make the system work by Andrew Cushen, InternetNZ's Interim Chief Executive.
We have previously highlighted the links between violent extremism and violence against women. In addition, this article on Assessing Misogyny as a ‘Gateway Drug’ into Violent Extremism (January 2022) explores the links between misogyny and extremism including violence that takes place online. Also see the new report Understanding the Links between Gender-Based Violence and Mass Casualty Attacks: Private Violence and Misogyny as Public Risk (April 2022).
The Government is reviewing the Search and Surveillance Act 2012. The Act controls how Police and other law enforcement agencies can search people or property and carry out surveillance. Some parts of the Act are relevant for victim survivors of family violence. For example the Act has relevance in cases of child exploitation material, in situations expanding a digital search warrant to internet-based data, and warrantless searches for high-risk offenders with patterns of serious sexual or violent offending who have tampered with their electronic monitoring device. The review is part of the Government’s response to the Royal Commission of Inquiry into the terrorist attack on the Christchurch masjidain on 15 March 2019. The Ministry of Justice also notes that "...the Law Commission and the Ministry of Justice reviewed the Act in 2016/17 and made 67 recommendations, which have yet to be considered by Government."
The review is taking a phased approach. The first phase involves working with Māori Treaty partners and with ethnic, faith-based, youth, rainbow, and other interested communities between April and June 2022. The second phase will involve wider public engagement.
How Netsafe went from championing online safety to fighting bullying claims, The Front Page podcast, 19.04.2022 (also see the related article Chris Keall: Privacy breach payout is third strike for Netsafe, NZ Herald, 07.04.2022)