Amicus Curiae: The Harmful Digital Communications Act, In Action

BY ASHLEY WAINSTEIN

Greater clarification has been given to the new Harmful Digital Communications Act 2015 with a recent High Court Appeal case, Police v B. The law in relation to the offence provision, s 22 of the Act (entitled “Causing harm by posting digital communication”), was of issue . A quick detailing of the facts describes a man charged with breaching a protection order in relation to his estranged wife and causing her harm through posting photos of her through Facebook. The issue was whether the photos, which included nude photos of the victim, were harmful enough to constitute “serious emotional distress”, as defined  by the Act.

With the rise of social media, websites like Facebook have provided a platform where it is simple for abusers to target their victims and the resulting harm varies in degree from case to case. The purpose of the Act seeks to mitigate the type of harm that can be attained through digital communication and to provide redress for those affected.

In the original case, the Judge was not satisfied that the communication through Facebook of the nude photos met the threshold of “serious emotional distress” toward the victim. He concluded it to be central to the Act that “the harm caused by the digital communication would cause harm to an objective person”, and that the post of photographs alone would not cause sufficient harm to warrant conviction. The approach taken here was light in respect to the relational issues between the respondent and the victim. Although consent was not of issue, the victim did not know that her estranged husband had the photos in his possession, and it was clear by the facts of the case that the respondent intended to cause the victim harm.

Examined later by the High Court, the Court held that the harm found did in fact meet the threshold of “serious emotional distress” under the recent Act and that the earlier decision may be a too narrow scope through which to look at issues of harmful digital communication. Without reference to the greater context the issue arises from, the level of harm to the victim may not be given adequate weight. Section 22(2) of the Act allows for many factors to be taken into consideration when deciding whether an offence has been made. The key argument in favour of conclusions like that in the original ruling is one of “floodgates” and where an offence is too general in nature. In this instance, this was not found to be the case when heard by the High Court. The relationship between the offender and victim was one of animosity and encouraged already existent hostility toward the victim when the photos were published on Facebook and these considerations made for a more compelling case in favour of the victim.

“Only two of about 100 prosecutions under the Harmful Digital Communications Act had been contested since the law came into force in November 2015”.

A concern worth mentioning is that with the increase in social media outlets and communications being more readily accessible to the public at large, the issue surrounding the display of harmful content may become more prevalent and the lines further blurred in what constitutes harm under the Act and what does not. Where cases may become more interesting is where a person displays harmful communication for the purpose of larger publication and where attribution of blame is of issue. Nevertheless, Auckland University Centre for ICT Law director David Harvey assures that “only two of about 100 prosecutions under the Harmful Digital Communications Act had been contested since the law came into force in November 2015”. Hence this may be indicative of how the law is working accordingly to strike down on issues of harmful digital communication with the Courts applying the law appropriately.

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