What is the Harmful Digital Communications Act and how are offenders penalised?

When does online hate become a criminal offence?
When does online hate become a criminal offence? Photo credit: Getty

In a world of cyberbullying and trolling, it's easier than ever to target individuals with malicious comments through the shield of social media - but when does online hate become a criminal offence?

Earlier this month, British TV personality Caroline Flack was found dead after facing public backlash online and intense media scrutiny for an alleged assault last year. 

In June 2018, a Kiwi 15-year-old died by suspected suicide after a long battle with vicious online bullying.

This week Jevan Goulter, the former campaign manager for Vision NZ - Hannah Tamaki's political party - shared a scathing attack on broadcaster Kanoa Lloyd through a Facebook post. 

The post, labelled "despicable" and "revolting" by horrified social media users, was removed by Facebook. Goulter has since apologised and has been dismissed from his position at Vision NZ. 

In New Zealand, the Harmful Digital Communications Act was passed to help people dealing with serious or repeated harmful digital communications. Perpetrators of online abuse can be charged with offences under the Act - and jail time is a possibility depending on its severity.

"There is a three-part threshold," Netsafe CEO Martin Cocker told Newshub.

"They have to prove the person intentionally targeted the victim to cause harm. The communication has to breach the 10 communication principles outlined in the Act. And the toughest - it has to have succeeded in causing harm to the victim."

What is the Harmful Digital Communications Act?

The Harmful Digital Communications Act came into force in 2015 to "deter, prevent and mitigate harm" caused to people by digital communication.

It's purpose is to provide victims of harmful digital communication with "a quick and efficient means of redress".

What does the Act define as 'Harmful Digital Communication'? 

'Digital communication' is defined as any form of "text message, writing, photograph, picture, recording, or other matter that is communicated electronically", which has been "transferred, sent, posted, published, disseminated, or otherwise communicated by means of a digital communication".

It is considered harmful when it causes "serious emotional distress".

The court considers 10 communication principles when deciding if a digital communication is harmful. Examples include:

  • digital communication should not be threatening, intimidating, or menacing
  • digital communication should not be grossly offensive to a reasonable person in the position of the affected individual
  • digital communication should not be indecent or obscene
  • digital communication should not incite or encourage an individual to [die by] suicide.

What can the court order a defendant to do?

The District Court may make one or more orders. It can order a defendant to take down the material, "cease or refrain" from engaging in similar conduct or publish an apology.

The court will take into account:

  • the content and the level of harm caused or likely to be caused
  • whether the defendant intended to cause harm
  • the extent of the circulation of the content
  • the vulnerability of the affected individual
  • whether the defendant has attempted to minimise harm caused by the post
  • whether the communication is in the public interest.

Can people be jailed for Harmful Digital Communication?

"There are two offences in the Harmful Digital Communications Act: non-compliance with an order and causing harm by posting digital communication," YouthLaw Aotearoa general manager Jennifer Braithwaite told Newshub.

If a person fails to comply with an order without reasonable excuse, they could face a maximum of six months in prison or receive a maximum fine of $5000 if convicted. 

Another offence under the Act is if "the person posts a digital communication with the intention that it cause[s] harm to a victim; and posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and posting the communication causes harm to the victim".

Factors the court may take into account when determining the harm caused by the communication include:

  • the extremity of the language used
  • whether the digital communication was repeated
  • the extent of circulation of the digital communication
  • whether the digital communication is true or false
  • whether the digital communication was anonymous
  • the age and characteristics of the victim
  • the context in which the digital communication appeared.

If convicted of this offence, the person could be sentenced to a maximum of two years in jail or receive a maximum fine of $50,000.

Does it matter if the post was a 'one-off'?

According to the legislation, the court will take into account whether the digital communication was repeated. 

A police spokesperson confirmed that a one-off post can still be considered an offence under the Act if it causes harm to a person, but "not a company or other organisation".

"It isn't necessary for the conduct to be repeatedly inflicted to be considered an offence," Braithwaite said. "But whether the communication was repeated will be considered in determining whether the post caused harm."

In short - yes, you can be jailed for sending a Harmful Digital Communication

According to the Ministry of Justice, 173 people charged with Harmful Digital Communications Act offences in New Zealand have pleaded guilty between June 2016 and 2019.

In 2019, 72 people out of 120 charged with Harmful Digital Communications Act offences were convicted. 

So to everyone thinking about hitting enter on that malicious post, think twice. It could cost someone their happiness - and it could cost you a court case.