Why our Online Harm Legislation isn’t working articles
8 Oct 2020
Stories about online harm feature regularly in mainstream media. Typically, references are made to the Harmful Digital Communications Act 2015 in the belief that the Act’s existence will help prevent such harm or give victims a way of preventing further harm.
That is not necessarily true. While criminal actions under the Act indicate at least parts of the legislation are working as planned, that is not the case for most people seeking civil action.
We have acted on several matters under this Act and have found that the legislation – or at least the way the courts have construed its remedial provisions – is not fit for its intended purpose.
The Act, in s 22, makes a distinction between criminal and civil action. The criminal threshold requires that the communication is made with the intent to cause harm, would cause harm to an ordinary reasonable person and did in fact cause harm.
Where intent cannot be shown, any action would have to be taken under the civil regime, so it is in the hands of the applicant to pursue. This article looks at this civil application of the legislation.
The definition of harm is a vital factor. It was not well defined in the legislation but has been better defined by the courts in criminal proceedings under the Act. It has been the subject of previous papers and articles which have reviewed the criminal decisions, such as the case note by Judge David Harvey on Police v B  NZCrimLawRw 35.
Section 3 of the Act provides its purpose: to “provide victims of harmful digital communications with a quick and efficient means of redress.” It was driven by the Law Commission which, in its briefing paper Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012) recommended a simplified tribunal procedure be created that could be used without legal assistance. The government retained the reference to purpose in the Act but removed the specialist machinery recommended by the commission.
The remaining parts of the process provide a good foundation. Any claim of harmful digital communications is made to an approved agency, being Netsafe, and s 12 of the Act requires a complaint to be taken to Netsafe before an order is sought from the court.
Netsafe reviews the material against the principles of the Act and can respond in several ways. It can refuse to review the complaint if it believes it is vexatious, trivial or frivolous. It can decide the principles are not breached or that there is insufficient evidence to show a breach, and the matter will go no further. It can contact the poster and attempt to resolve the issue, though this might be avoided if Netsafe believes it could encourage further harmful communications. It can communicate with the service hosting the communications and seek to have the posts removed, particularly if they are anonymous. Finally, it can agree that principles have been breached and the applicant can then pursue the matter through the court.
Criminal v civil
This is where the distinction under s 22 determines the handling and outcome of a complaint. For a criminal matter, the police become involved and lead the work. The complaint would be handled by lawyers at the cost of the taxpayer, just like any other prosecution. The legislation does not, and should not be expected to, provide guidance on how such a determination should be made.
If a complaint is not deemed to reach the criminal threshold, it becomes the responsibility of the applicant to handle the matter him/herself (with or without legal representation). This would require standard court processes, documents, appearances etc.
There is often a need to seek orders against foreign social media companies to determine the owners of anonymous accounts. As the court process can be overwhelming, and difficult for laypeople to follow, litigants will typically require a lawyer at some point.
Whether a matter reaches the criminal threshold is left primarily to the police. As most applicants will not have the financial means to seek legal assistance for a civil action, this will effectively mean the officer will decide whether action under the Act is undertaken. He or she will decide, without any obvious right of appeal or oversight, whether the applicant will receive protection from the Act.
This is compounded by what appears to be an ongoing belief amongst some police that online harm is lesser than non-online harm and that such posts are easily dismissed or ignored.
Online communications can be broadcasted internationally, copied without knowledge, seen by thousands of people within seconds and are available forever. This means they can be substantially worse than comments made offline.
One victim was subject to multiple public postings by an anonymous party of her intimate visual images and recordings, which were viewed thousands of times. The police officer, who decided this did not reach the criminal threshold, appears to have blamed the applicant for taking the photos that were subsequently released without her consent.
No response has been received to our letter to the officer asking him to explain that position. Neither has there been any interest from the relevant government ministers when it was raised with them, or from the Commissioner of Police. This left the applicant needing to pursue civil action herself in an attempt to prevent future harm.
(The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, which received its first reading on 29 July 2020, seeks to make such unconsented release of intimate visual recordings a crime under the Act by default, without the need to show an intent to cause harm.)
Section 16(4) of the Act requires that decisions under the Act be published. The purpose is to balance any enforcement under the Act against the impingement on rights protected under the NZ Bill of Rights Act 1990. So, the reasons for those rights being denied, or a refusal to deny them, must be made public.
We have yet to see any published decision for any civil action under the Act. As these have been possible since January 2017 (the first matter we were involved with under the Act commenced within weeks of the civil proceedings regime coming into force), we would have expected something to have been published within the past 43 months. However, it is likely no civil matter has ever reached a point where a substantive decision has been given.
With no published decisions, the court is left to follow the approach it would take in any other procedure. This would not normally be detrimental but for the purpose of the Act which is to provide a quick and efficient means of redress.
The Act does contain elements that might have been inserted with an intention of meeting the purpose. Section 16(1)(a) seeks to provide for a determination on the basis of written material, simplifying the process. However, s 16(1)(b) then opens that up to a hearing involving oral submissions and largely negates that attempted simplified approach.
The Act also removes some of the general allowances provided for under the District Court Rules. We believe these were removed with the intention of being part of a simpler approach to provide for the purpose of the Act but now just modify the standard court process. We will look at discovery as an example.
Rules 8.1-8.48 of the District Court Rules 2014 allow for discovery in a proceeding. However, rule 49 of the Harmful Digital Communications Rules 2015 removes the application of District Court rules 8.1 to 8.48, amongst several others, from having to be followed. Discovery is therefore not permitted in a proceeding under the Act.
However, s 22 requires the court to consider whether a communication was repeated, along with the extent of its circulation.
The existence of the communication itself may not be under argument and copies will be before the court. However, the extent of the distribution might not be. The communication may still be active but accessible only to a selected group that does not include the applicant. So, the harm continues but the applicant cannot confirm the extent.
The court may see a request for the extent of the communication, or the number of times it has been recommunicated (such as through a ‘like’ or similar), to be an attempt at discovery and therefore does not need to be provided. Another court might see the communication as not being in dispute and this merely proves extent rather than the communication itself, therefore not falling under the restriction on discovery. We have seen both approaches taken.
Without previous decisions, the court is being understandably cautious but, in doing so, it is not providing certainty to litigants. This requires each point to be reargued each time it arises, at a cost to all parties.
Previous decisions from the District Court would not necessarily have to be followed but would provide guidance to all parties, including the court, on how such issues were previously handled.
It would also allow legal advisors to give their client’s better advice on process and cost, as well as possible outcomes. In this example, the extent of a communication, whether it was seen by five people or 5,000, can significantly alter the question of whether harm can be shown and the level of that harm.
For those who have experienced harm and need to consider civil action, some consideration needs to be given to the outcome they are seeking. While criminal action under the Act can, and has, led to fines and imprisonment, the orders available to the court for civil action are much more limited. Section 19, aimed at removal, prevention, corrections or apologies, sets out what orders can be made. Court costs can be awarded, as per the standard District Court Rules 2014. Actions in which we have been involved are still before the court or agreements have been made between the parties to bring an end to the action. All have either been at considerable costs to the parties, whether applicant or respondent, or have required us to handle the matter pro bono.
Legal aid is available but is unlikely to cover the costs or the specialist knowledge required. Orders against foreign companies, which are not enforceable and are often ignored, must be served in accordance with the Companies Act 1993, at a cost of close to $1,000 each (though some of those companies, notably Facebook Inc and its US legal counsel, now provide us with easier methods of serving such orders, and seem more proactive than others in helping to prevent harmful communications).
Following the standard procedure, when a hearing does take place, the applicant is the first to be cross-examined. As s 22 allows the court to take into consideration any factors it considers relevant, and provides a fairly broad set of examples, and s 16(6) allows for evidence that may be considered inadmissible in other proceedings, cross-examination can be extensive. This can often cause further harm to the applicant. With no detailed process, little in the way of precedents and the wider allowances provided under s 16(6) and the Evidence Act 2006, the court may allow a great deal of information to be provided and can typically judge its relevance only after it has been raised.
The additional harm caused by the cross-examination process itself could push the applicant to withdraw the action or come to an agreement they might not otherwise have agreed to. Similarly, a respondent may capitulate or agree to a less-than-satisfactory outcome in order to avoid cross-examination.
On that basis, it is unsurprising that no decisions have been made under the Act. Any such proceeding will often become a battle of attrition as one party tries to outlast the funds available to the other, knowing that if they can last longer, they may be able to claim back a portion of their substantial costs from the opposing side. If the applicant cannot last the distance, he or she risks both the continuation of the harm (provoked by the court process) as well as having to pay costs to the respondent.
The one obvious benefit of initiating action, at least against an identifiable person, is that the first action by the court is usually to supress the matter and to require that no further posts are made.
That benefit will last only so long as the matter continues, an agreement is reached, or a decision is made. Its existence may provide suitable caution for the respondent to rethink his/her actions. For others, it will add fuel to the fire. However, the interim order will typically not require communications that have already been made to be removed so the harm they cause may continue during the extended court process. They are also difficult to enforce as they require a formal application to the court and may be deferred until the determination of the substantive matter, something that never occurs.
- For applicants, our focus primarily is on preventing further harm, including any harm that legal action itself could create through the stress and delay of the court process and the costs involved.
- We don’t like the “let it go” approach but for many applicants that can sometimes be the best advice.
- Under s 19 the court can order corrections and/or apologies to be published but we see little value in these except for the wealthy or those with a significant public profile. For most, corrections and apologies may increase interest in the original harmful communications for those who may not have originally been aware of them.
- Similarly, for respondents, our advice is based on how much they value their freedom of expression and whether their actions truly are harmful. Sometimes the Act can be used in an attempt to stop fair criticism rather than to stop harm.
During the third reading of the initial bill, Jacinda Ardern, then an opposition MP, stated:
On balance, as I say, we do want to prevent harm. We have massive reservations about whether this is the right way to do it, but on balance we have agreed to see where it takes us. But let us, at least, as a Parliament, be wise enough to accept that this is new territory and that it would be wise of us to keep a very watchful eye on the way that this legislation works.
We believe we can now see where it has taken us. It is time to be wise enough to accept that this legislation does not work as intended or for the purpose stated.
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