Cyberbullying law in action

Minister of Justice Amy Adams has a report on the progress of the new cyber bullying (Harmful Digital Communications Act) in action.


Cyberbullying law holding offenders to account

Legislation passed in 2015 to curb cyber-bullying is effectively weeding out and punishing the worst offenders, says Justice Minister Amy Adams.

“The Harmful Digital Communications Act made it illegal to send messages and post material online that deliberately causes a victim serious emotional distress,” says Ms Adams.

“The law is also protecting those most vulnerable to online abuse by clamping down on bullies who encourage their victims to commit suicide, regardless of whether or not the victim attempts or is successful in taking their life.”

Since coming into force the Act has resulted in:

  • 132 criminal charges filed
  • 77 criminal cases finalised
  • 50 convictions and sentences
  • 4 diversions completed
  • 3 dismissals
  • 1 discharge without conviction

“One of the worst cases we’ve seen involved a man who was jailed for sending half naked photos of his ex-girlfriend to a shared work email address. This shows the law is working well to punish the most serious offenders.”

The Act also established an Approved Agency, Netsafe, and civil court remedies to assess, investigate and deal with complaints about harm caused to individuals by digital communications.

“Since Netsafe began in November 2016, it has received over 600 requests for assistance with harmful digital communications,” says Ms Adams.

“The law tackles cyberbullying head on and simplifies the process for getting harmful communications off the internet quickly and effectively, while still respecting the right to free speech.”


But one initial Court finding is being challenged: Police successfully appeal for retrial of man who posted semi-nude photos of his ex to Facebook

A judge’s decision not to convict a man who uploaded photos of his ex in her underwear to Facebook has been overturned.

The man, who has ongoing name suppression, appeared in the Manukau District Court last year charged with two offences – breaching his ex wife’s protection order and breaching the Harmful Digital Communications Act.

While District Court Judge Colin Doherty upheld the first charge, he ruled that the woman had not suffered enough “serious emotional distress” for the second charge to be upheld under s22 of the Act.

The police appealed this in Auckland’s High Court on March 21, on the basis that Judge Doherty had made a mistake.

In the just-released High Court judgment, Justice Matthew Downs ordered that the decision be quashed and a retrial held in the district court.

According to the judgment, police counsel Peter Marshall told the court that Judge Doherty erred in his conclusion that the evidence could not establish the woman’s distress.

In determining whether a post would cause harm, the court may take into account any factors it considered relevant, including the extremity of language, age and characteristics of the victim, whether the communication was anonymous, repeated, true or false, and the context in which it appeared, the judgment said.

It can take a few trials for Courts and Judges to get the right balance and serve the intent of new laws.

Judge Doherty said in his judgment, however, that as she was not repeatedly exposed to direct communications and the audience seeing the photos were small, there was a lower degree of harm.

He concluded that while the evidence “clearly points to some degree of emotional distress,” it was not sufficient to satisfy him.

In the High Court judgment Justice Downs said Judge Doherty’s observations about the types of distress the complainant suffered were just that – observations.

“The judge approached the issue by isolating the various descriptions of how the complainant felt, rather than – as required – assessing the evidence in its totality,” he said.

He said that trying to quantify the harm caused was difficult, because it was part fact, part value-judgment.

Attention should have been given to the nature of the woman’s distress, its intensity, duration, manifestation and context, Justice Downs said.

It could be tricky arguing and determining significant harm.

Leave a comment

4 Comments

  1. Alan Wilkinson

     /  April 6, 2017

    I think the Judge is in very dangerous and injudicial territory making subjective judgements about the distress actually caused to the particular victim. It would be far better to judge based on reasonable expectations that the perpetrator should have had. A victim may suppress, hide or exaggerate. Distress may be severe due to some factor the perpetrator could not have been expected to anticipate. None of these individual effects should influence the judgement of the court.

    Reply
  2. Anonymous Coward

     /  April 6, 2017

    Interestingly that case seems to have been the first case heard under the legislation.
    Defence questioned whether Facebook is even a digital communication under the act.
    http://www.districtcourts.govt.nz/assets/unsecure/2016-11-29/2016-NZDC-23957-R-v-Partha-Iyer.pdf

    I’ve been searching around trying to find what the 50 convictions were for.
    All I can find so far are ‘nudie pics’ cases and a mention in an article about texts and emails. Haven’t found any commenters on blogs, or blog owners being convicted yet – which is what everyone was so worried about at the introduction. (damp squibs here and at the Standard notwithstanding).

    Reply
  1. Cyberbullying law in action – NZ Conservative Coalition

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