Myra E.J.B. Williamson
PhD. Associate Professor of Law

Abstract:

Personal photos, messages, videos and e-mails: what protection should the law offer when such types of communications are posted on Facebook, Instagram, Whatsapp or Twitter, with the intention of haring another person ?
In New Zealand, the Harmful Digital Communications Act 2015 (HDCA) was passed to address the problems created by electronic communications that harm others. The HDCA is the New Zealand legislature’s main legal response to combating the new challenge of cyber-bullying. The Act balances the right to freedom of expression against every individual’s right to privacy and protection from emotional harm in the digital age. It creates a new crime of causing harm by posting a digital communication. It also provides a civil enforcement regime by which anyone can have harmful or illegal content removed.
This paper will address what the HDCA is, and also, what it is not. The HDCA does not aim to protect people from defamation (speech which harms reputation and is untrue) because other civil laws already do that. It does not seek to protect political figures or the government from criticism by journalist, Twitterers and bloggers- no law in NZ does that- since such criticism is protected by the ‘ freedom of expression’ provisions in the NZ Bill of rights Act 1990.
This law has two aims. First, it aims to ‘deter, prevent and mitigate harm caused to individuals by digital communications’. Second, it aims to ‘provide victims of harmful digital communications with a quick and efficient means of redress’.
It is currently envisaged that the paper will be divided into five parts.
Part 1 will briefly explain the ‘mischief ’ that the law has sought to remedy including the Law Commission’s work in this area. It will also review the fears that the HDCA would stifle freedom of expression.
Part 2 will highlight the key provisions of the Act, including its purpose and definitions. The most important concept of ‘harm’ is defined as ‘ serious emotional distress’. The courts have so far interpreted this term broadly. The term ‘ digital communication’ is defined to include any form of electronic communication. Thus , a crime is committed in NZ , if posting digital communications results in ‘ serious emotional distress’. This part will explain the civil and criminal regimes created by the Act. It will explain the 10 ‘ communication principles’. It will describe the agency, called ‘Netsafe’ , which receives complaints from any individuals who believe they have been harmed. It has statutory power to refer any complaint to the district Court, which can inter alia order internet service providers to ‘ take down’ material and order apologies.
Part 3 will analyse some of the most important cases. In 2017, the Hight Court handed down its first decision on the HDCA. There have only been three High Court and one Court of Appeal case to date. The case law on the HDCA is new and evolving, the latest decision having been issued in December 2017.
Part 4 may provide a brief comparative analysis, comparing the NZ legislation with a selection of comparable laws in other jurisdictions including Kuwait.
Part 5 will conclude the paper by offering a brief set of recommendations in light of the NZ legislative experience. This part will also mention the New Zealand Centre for information and Communications Technology ( ICT) law at Auckland University. Such a centre has much to offer, providing advice, research and legal analysis on an area of rapidly evolving challenges. The current trend is that ICT law is emerging as an important course to be taught at universities both in NZ and globally.
This paper may provide useful insights to academics, policy-makers and legislators in other jurisdictions whose societies may be facing similar challenges and who may be considering the most effective legal response.

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