Navigating technology and digital communications can be tricky, partially because they’re changing faster than most of us can keep up with. However, there are ways that schools and parents can help youths tackle cyberbullying and negative online interactions. We’ve outlined some of these approaches below.
If you require legal advice in relation to these matters, please contact Lane Neave’s Dispute Resolution & Litigation Team.
Harmful digital communications – an overview
The Harmful Digital Communications Act 2015 (HDCA) is intended to deter, prevent and mitigate harm caused by digital communications and provide victims with efficient means of redress. Although cyberbullying between youths is a key focus of the HDCA, it is not confined to young people.
Digital communications are any form of electronic communication. This includes text, writing, photographs, pictures, recordings, or other matters communicated electronically.
There are 10 key communication principles which guide the HDCA.
The principles state that digital communications should not:
- disclose sensitive personal facts;
- be threatening, intimidating, menacing;
- be grossly offensive;
- be indecent or obscene;
- be used to harass an individual;
- make a false allegation;
- contain information published in breach of confidence;
- incite or encourage anyone to send a harmful message to an individual;
- incite or encourage an individual to commit suicide;
- belittle someone because of their colour, race, ethic or national origins, religion, gender, sexual orientation, or disability.
For court action to occur, one or more of these principles needs to have been breached or have had a serious breach threatened and the breach needs to have caused (or be likely to cause) serious emotional distress to an individual. The distress must be more than trivial but does not have to reach the level of mental injury or disorder.
What can you do about a harmful digital communication?
There are several actions that can be taken by students, schools and parents to escalate a matter involving a harmful digital communication. The main bodies to support further action are:
- Netsafe (the “Approved Agency” for the HDCA);
- the District Court;
- the Police.
Netsafe, the District Court and the Police operate on different, but overlapping platforms. They can guide you in the right direction or to the appropriate body for the situation at hand.
When facing a harmful digital communication, you should:
- Collect a contained copy of the digital communication.
- Lay a complaint with Netsafe.
- Apply to the District Court for specific orders.
Anyone can make a complaint to Netsafe, at any time. A complaint will be more effective and efficient when made by someone with good knowledge of the affected individual and the situation at hand.
Initial reporting to Netsafe is important because an application for a court order cannot be made until Netsafe has received a complaint and had a reasonable opportunity to assess and decide what action (if any) to take.
Digital communications can spread like wildfire, so we recommend that harmful communications are reported immediately. This enables a faster subsequent application for the removal of the content.
The Police can simultaneously deal with any HDCA criminal offences. However, the Police can also receive complaints and refer them to Netsafe. If an individual is in immediate danger, contact the Police immediately.
What does Netsafe do?
Netsafe receives, assesses, and investigates complaints about harmful digital communications. Complaints can be made to Netsafe via their online reporting scheme, via a call, or to their email.
Both Netsafe and the court can dismiss frivolous or vexatious claims, which can prevent retaliation or false accusations from escalating.
A communication principle does not need to be breached, or threatened to be breached, for Netsafe to investigate a complaint – however, the principles are likely to influence the outcome of a complaint.
If it chooses to investigate, Netsafe will try and resolve issues through advice, negotiation, mediation, and persuasion. Despite this, Netsafe does not have any powers to make binding legal decisions or orders.
Netsafe’s involvement in schools can often be enough to deter perpetrators, or provide adequate support for victims. Netsafe’s services are free, confidential and can be less stressful for the victim. However, in situations where the perpetrator is anonymous, or refuses to remove content, further court or Police action may be required.
What does the District Court do?
Under the HDCA, the District Court can issue a wide range of orders. There is no fee for an application. An application to the District Court can be made by:
- the affected individual;
- the parent or guardian of the affected individual;
- the Police (if there is a threat to safety);
- the Chief Coroner; and
- the principal or delegate of a registered school, if the affected individual is a student at the school and consents to this action.
This means that where harmful communications are occurring between different schools, it is the school of the victim that is required to initiate proceedings – not the school of the perpetrator. It also means that regardless of where the content is coming from, or who is responsible for the conduct, the school retains the ability to act for their students – even if it is occurring outside of school hours.
Of particular relevance in the school context, the court can order:
- the identity of an anonymous communicator is released to the court;
- the removal, or disabling of the material, or disabling of public access;
- the cease and refrain from the conduct;
- prevent encouragement for other people to engage in similar conduct;
- directions against other people where there is evidence that they have been encouraged to engage in harmful digital communications; and
- an apology be published.
These orders can also be granted on an interim basis, while an application is being determined. This is useful, because it may mean content is removed while circumstances are investigated further.
Like most new legislation, particularly those that deal with technology, the HDCA is not perfect. A major issue which schools and parents may face is where the perpetrator refuses to remove content, but the victim does not want to take full court action.
Additionally, court processes can be lengthy, time-consuming, and costly. This is particularly so where a full hearing and trial is required. A less costly alternative to this can be consent orders.
A consent order is a record of an agreement reached between parties. This agreement can then be submitted to the court for approval. Consent orders can be made at any time before the court reaches a final decision. If approved, the order will bind the same way that a court decision would have.
What do the Police do?
Outside of action through Netsafe or initial court orders, there are further penalties under the HDCA. This includes penalties for: breaching court orders, causing harm by posting a digital communication, and posting intimate visual recordings without consent.
The individual penalties for these range from fines of $5,000 to $50,000, or imprisonment from six months to two years. The act of aiding and abetting suicide also faces penalties of three to 14 years imprisonment.
The Police will investigate cases where harm is caused by posting digital communications, where intimate recordings are posted without consent, or where suicide is aided and abetted (regardless of whether a person attempts to commit suicide or not).
Importantly, for schools dealing with young and underage persons, the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act 2022 creates a separate offence. An intimate visual recording can be made on any medium, and includes an individual’s naked or partially exposed, undergarment, clad, genitals, pubic area, buttocks or female breasts. It also includes places where privacy is reasonably expected – such as engaging in sexual activity, showering, toileting, dressing/undressing.
These recordings can be made with or without the knowledge of the subject. This is included to account for situations of ‘revenge-porn’, where recordings were taken or sent with consent initially, but were subsequently released without consent.
If someone posts an intimate visual recording without a reasonable excuse, knowing the victim has not consented to the posting or being reckless about their consent, this person has committed an offence. An individual under the age of 16 cannot consent to the posting of an intimate visual recording of which they are the subject of.
A criminal offence under the HDCA is subject to youth justice processes. This means that the offences will not be applied to children under the age of 14 but can be applied to those aged 14 to 16.
Where to access services:
If you’re concerned about the immediate safety of you or someone else, call 111.
If you want help or expert advice, you can contact Netsafe anytime by:
- Emailing help@netsafe.org.nz
- Calling toll free on 0508 NETSAFE (0508 638 723)
- Online reporting at org.nz/report
- Texting ‘Netsafe’ to 4282
