The Harmful Digital Communications Act is intended to reduce the harm caused by digital communications and provide victims of harmful digital communications as a quick way to sort out the problem. The Act is designed to help prevent and address online harm, including the non-consensual sharing of explicit images. The HDCA aims to deter, prevent, and mitigate harmful digital communications, and; provide victims of harmful digital communications with quick and efficient means of redress.
Principles of the Act
The act defines harmful digital communications as any electronic communication that causes serious emotional distress to an individual. It outlines ten communication principles that prohibit digital communications that: – Disclose sensitive personal facts about an individual. – Are threatening, intimidating, or menacing. – Are grossly offensive to a reasonable person in the victim’s position. – Are indecent or obscene. – Are used to harass an individual. – Make a false allegation. – Contain matters that are published in breach of confidence. – Incite or encourage anyone to send a message to someone with the intent to cause harm. – Incite or encourage another individual to commit suicide. – Denigrate an individual by reason of their color, race, ethnic or national origins, religion, gender, sexual orientation, or disability.
What you can do
Victims can make a complaint to Netsafe, an approved agency under the HDCA, which can help resolve the issue quickly and efficiently. Netsafe can provide advice, assistance, and work with online platforms to remove harmful content. If Netsafe cannot resolve the issue, victims can apply to the District Court for various orders, including: – Take-down orders: To remove the harmful content. – Cease and desist orders: To stop the harmful communication. – Correction orders: To correct false information. – Non-publication orders: To prevent further distribution of the harmful content.
The act makes it a criminal offense to cause harm by posting a digital communication with the intent to cause harm. Offenders can face up to two years in prison or a fine of up to NZD $50,000 for individuals and NZD $200,000 for corporations.
If you think a criminal act has been committed then you should contact the NZ Police.
First contact Netsafe. Netsafe is New Zealand’s free and confidential advice service to help people who have experienced online harm. This includes bullying, grooming, illegal content, scams and harmful digital communications. Netsafe will decide whether the electronic communication is considered a “harmful digital communication.” Netsafe can then liaise with the person who made the communication or the online service provide e.g. Facebook to request that the content is taken down. You do not need a lawyer to use Netsafe. You can make a report to Netsafe by using their online report form at www.netsafe.org.nz. To report from their home page, click on “Report Online Incidents,” or phone them on 0800 NETSAFE (638 723).
Then you can apply to court and see if a District Court Judge thinks it meets the criteria. There is no fee for applying to the district court. The District Court Judge can make a number of orders, including suppression of details of the court hearing, and order that the post be taken down. This is called a “take down order”. They can also make the following Orders: • An order that the defendant stop the conduct concerned • An order that the defendant not encourage anyone else to make similar communications towards the affected person • An order that a correction be published • An order that the affected person be given the right to reply • An order that the defendant apologise to the affected person • The following other people can also apply to the District Court: The parent or guardian of an affected individual, the Police, or a professional leader of a registered school or delegate. If it’s on behalf of a child/student then proof of consent must be provided with the application.
We're certainly one of the best, and have acted in both the District and High Courts for matters under the Harmful Digital Communications Act. We're one of the few specialists in this area of law as well as the Family Violence Act.
A digital communication is any form of electronic communication – text messages, writing, photos, pictures, recordings or other things communicated electronically. This includes on a website or social media.
An intimate visual recording is one in which the person would usually expect to have privacy and is either naked, or partially clad or involving in intimate sexual activity or activities which involve dressing or undressing e.g. if you are using a bathroom. Even if you consented at the time to the image being made, if you still reasonably expected privacy it might be a harmful digital communication.
A digital communication is harmful if it causes serious emotional distress. This means it has to be more than something you are annoyed or irritated by. The level of serious emotional distress you suffer does not need to reach a point where there is a diagnosable mental health impact. Situations that might be harmful could be significant embarrassment (e.g. nude pics), posts directly encouraging people to abuse or threaten you, posts encouraging you to harm yourself
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