How the Harmful Digital Communications Act can be misused

In New Zealand the Government tried to address the problem of online bullying by creating the Harmful Digital Communications Act 2015. The Act creates ten communication principles and then sets out the process for dealing with breaches of the principles.

Those principles are that a digital communication should not;

  1. disclose sensitive personal facts about a person
  2. be threatening, intimidating or menacing
  3. be grossly offensive
  4. be obscene or indecent
  5. be used to harass a person
  6. make a false allegation
  7. break confidences
  8. incite or encourage anyone to send a deliberately harmful message
  9. incite or encourage a person to harm themselves or commit suicide
  10. denigrate a person’s colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.

Although these principles are extremely wide ranging it is in the process where I think the Act really goes wrong. The actual legislation requires that a person has been, or will be, caused serious emotional stress in order to bring a case in court but the process prefers that people go through mediation with an Approved Agency before proceedings in the District Court.

In fact the legislation requires that an applicant at least lodge a complaint with the Approved Agency, in most cases, before the Court will hear the case. This sets up a gate keeper to the legal system that can be misused.

The Approved Agency is not required to try and ascertain whether an applicant has suffered serious emotional stress and there is no comeback on false applicants. The Approved Agency can refuse to hear a vexatious, frivolous, or trivial complaint but in reality this very rarely happens. What this means is that if someone writes something online and I want to take issue with them then I can enter into the Harmful Digital Communications Act process with the ability to withdraw at any time with no risk to myself.

However, the person who I have taken issue with is then in an unfortunate position. Failure to go through mediation will be looked upon unfavourably by the Court and having gone through the mediation there is nothing to stop the vexatious party from taking them to court anyway. For the applicant it is a win win situation and for the accused a lose lose.

This is happening in New Zealand and I know at least one person who has used this method to try and stop criticism of them. I asked New Zealand’s Approved Agency Netsafe how many others there are in an Official Information Request and received this reply,

Official information request

Thank you for your correspondence of 24 May 2019 where you asked us to estimate how many public figures have made complaints about harmful digital communications with Netsafe.

We capture statistical data relating to complainants such as their ethnicity and age. We do so to inform policies and decisions regarding current and future services.

Currently we do not capture any statistical data specifically regarding public figures. Also, complaint files are not categorised according to whether they are made by public figures. This means finding information you have asked for would require a manual search of over 7,000 complaint files. This would impose a measuredly heavier workload on Netsafe’s operations team which already has a heavy workload in providing complaint handling and associated services.

As such, due to the substantial amount of work that would be required to research and collate the information you have requested, we are refusing your request under section 18(f) of the Official Information Act 1982. You have the right to seek an investigation and review by the Ombudsman of this decision. Information about this is available at www.ombudsman.parliament.nz or freephone 0800 802 602.

Please note, we publish quarterly reports which contain statistics about HDC complaints made to Netsafe. You may like to visit the following webpage to access these reports: https://www.netsafe.org.nz/our-work/netsafe-media-releases/

Yours sincerely,

Ben Thomas, Legal Advisor

PO Box 124, Shortland Street, Auckland 1140 | 0508 638 723 |netsafe.org.nz

Netsafe apparently has absolutely no idea how many people are using it’s service maliciously. If you look at the report linked to in the above quote it gives little to no information at all. The increase in complaints, the number of and the type of but nothing about resolution or which ones went to Court or how many were vexatious, frivolous, or trivial.

Looking at it from the perspective of the falsely accused, the Harmful Digital Communications Act is a wonderful example of a badly made law with little public oversight than can be used to stifle freedom of expression. Why do I think this? Because I was taken though the NetSafe part of the Act by Suzie Dawson.


Image used with permission Cyberbullying by Nick YoungsonCC BY-SA 3.0ImageCreator

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