With the world becoming ever more digital, the prevalence of harmful online communications has steadily been on the rise. Social media has become the modern day “town square” – the forum through which people communicate with their peers and communities. Parliament identified the potential dangers from this shift in discourse and enacted the Harmful Digital Communications Act 2015 (HDCA) to prevent the seemingly lawless arena of the internet being used to cause harm.
The HDCA contains criminal provisions, however this article will focus solely on the civil “self-help” remedies available under the Act. In short, the HDCA allows an individual to obtain a Court order against another person who has made harmful digital communications about them or to them. It is also possible to obtain a Court order against a web host such as Facebook or against an internet service provider.
The HDCA applies to “digital communications” which means any form of electronic communications and includes text messages, photographs and social media posts. The Act contains ten “Communication Principles” that underpin its purpose. In summary, 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 his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.
An individual can seek a Court order if another person has breached one or more of the above Principles and the breach was serious or there are repeated breaches and the individual has suffered harm or will suffer harm as a result. Under the HDCA, “harm” is described as “serious emotional distress”, accordingly a person does not need to show financial or social harm.
Before applying to Court, Netsafe must be provided an opportunity to assess the situation. Netsafe should be provided with all relevant information relating to the breaches. Once Netsafe has considered the matter and/or taken steps, an individual can apply to Court for an order. The Court can order:
- That posts be taken down;
- Requiring a person to cease making posts about the individual or texting them or encouraging others to do so;
- A person make a correction and/or apologise;
- A website host to take down posts;
- A website or internet service host to reveal the identity of an anonymous poster.
If you have been the victim of a harmful digital communication, our team is well placed to assist and advise whether a remedy under the Harmful Digital Communications Act 2015 is available to you.
