(July 6, 2015) On June 30, 2015, the New Zealand Parliament passed the Harmful Digital Communications Bill. (Harmful Digital Communications Bill Passes, PARLIAMENT TODAY (June 30, 2015); Harmful Digital Communications Bill, New Zealand Parliament website (last visited July 6, 2015).) The legislation, which was originally introduced in November 2013, will establish complaint mechanisms for victims of behavior such as cyberbullying, harassment, and “revenge porn” and will provide new civil remedies and criminal offenses. (Press Release, Hon. Judith Collins, Collins Calls Time on Cyber Bullies, THE BEEHIVE (Nov. 5, 2013).) It is based on recommendations and a draft bill prepared by the New Zealand Law Commission in 2012. (Law Commission, Harmful Digital Communications: The Adequacy of the Current Sanctions and Remedies, Ministerial Briefing Paper (Aug. 2012); see generally, Regulatory Gaps and New Media, LAW COMMISSION (last visited July 1, 2015).)
A new offense of causing harm by posting a digital communication, provisions related to content host responsibilities, and amendments to other legislation have now come into force, while the remainder of the provisions will come into force on a date appointed by an Order in Council, or two years from the date of Royal Assent, whichever is earlier. (Harmful Digital Communications Act 2015, s 2, New Zealand Legislation website.)
The bill, which became the Harmful Digital Communications Act 2015, sets out ten “communication principles.” If a person considers that one or more of these principles has been breached, he or she may make a complaint to the “Approved Agency” appointed under the Act. The Agency’s role includes investigating complaints; resolving complaints through advice, mediation, negotiation and “persuasion”; and providing advice and education on policies related to online safety and conduct on the Internet. (Id. s 8.)
If the matter is not resolved through the Agency’s complaint processes, a person (including an affected individual, a parent or guardian on behalf of that person, the professional leader of a school, or a member of the police (id. s 11)) may apply to a District Court for an order that requires the defendant to take down or disable the material, refrain from the conduct concerned, not encourage others to engage in similar communications towards the applicant, publish a correction, provide a right of reply to the applicant, or publish an apology. (Id. s 19(1).) The court may also make orders against an online content host, including that it take down or disable public access to the material, release the identity of the author of an anonymous communication to the court, publish a correction, or provide a right of reply to the affected person. (Id. s 19(2).)
The Ten Communication Principles
The ten communication principles are as follows:
1. A digital communication should not disclose sensitive personal facts about an individual.
2. A digital communication should not be threatening, intimidating, or menacing.
3. A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.
4. A digital communication should not be indecent or obscene.
5. A digital communication should not be used to harass an individual.
6. A digital communication should not make a false allegation.
7. A digital communication should not contain a matter that is published in breach of confidence.
8. A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.
9. A digital communication should not incite or encourage an individual to commit suicide.
10. A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability. (Id. s 6(1).)
Offenses and Penalties
The Act makes it an offense not to comply with an order made by the District Court, punishable by up to six months’ imprisonment or a fine of up to NZ$5,000 (about US$3,350), or NZ$20,000 if the offender is a company. (Id. s 21.) There is also a separate offense of posting a digital communication with the intention to cause harm to a victim, where such communication would cause harm to an “ordinary reasonable person” in the position of the victim and posting the communication does actually cause harm. The punishment for this offense is imprisonment for up to two years or a fine of up to NZ$50,000, or NZ$200,000 in the case of a company. (Id. s 22.) The Act also amended some existing offenses under the Crimes Act 1961 and the Harassment Act 1997. (Id. pt 2.)
Responsibilities of Content Hosts
Online content hosts will be protected from liability under the Act if they receive notice of a complaint about the specific content and then notify the author and provide the opportunity to submit a counter-notice. The content author can either consent or refuse consent to the removal of the content. If he or she does not respond to the notice within 48 hours, then the content host must take down or disable the specific content. If the author submits a counter-notice within this time limit declining consent to remove the content, the host must notify the complainant and, if the author consents, provide the complainant with personal information that identifies the author. (Id. s 24.)
Support for the Legislation
The bill was passed by a significant majority in Parliament, with only five of the 121 members voting against its enactment. The Labour Party, the main opposition party, raised concerns about the bill and called for a review of its operation to ensure that it does not have a chilling effect on free speech. However, the Party voted for the bill as it felt that something needed to be done to address cyberbullying and other harmful online behavior. (Harmful Digital Communications Bill Passes, supra.) The five who voted against the bill were four members of the Green Party and the sole ACT Party member of Parliament. Ten other members of the Green Party voted in favor of the bill. (Id.)
The bill was previously assessed for consistency with the New Zealand Bill of Rights Act 1990. The Crown Law Office found that it raises issues under the right to freedom of expression affirmed by section 14 of that Act, but “appears to be consistent with the Act.” (Harmful Digital Communications Bill (PCO 16465/4.17): Consistency with the New Zealand Bill of Rights Act 1990 (Nov. 1, 2013), Ministry of Justice website; Harmful Digital Communications Bill: Departmental Disclosure Statement (Oct. 23, 2013), Ministry of Justice website.)