HDCA: cot case bar set for ‘harm’

A judgment was been given on an application to dismiss a prosecution under the Harmful Digital  Communications Act that suggests that to succeed with a prosecution the victim would virtually have to become a cot case.

Judge C J Doherty ruled that the posting of semi-nude photos on Facebook had taken place with the intention of causing harm to the victim, but that there was insufficient evidence that “serious emotional distress” had occurred (as defined in s 4 of the HDCA).

It appears from this that the legislation, backed by this judgment, has set a very high bar for a prosecution under the HDCA.

This rules out a conviction under the act for malicious digital communications that may seriously harm someone’s reputation but that they don’t get ‘seriously distressed’ about. Getting very pissed off or angry or upset with a harmful attack would seem to be insufficient.

In this case an estranged husband still has to face a charge of breaching a protection order, but the judge ruled on a breach of s 22 of the Harmful Digital Communications Act 2015 (HDCA) “that the prosecution has not established a prima facie case that the complainant in fact suffered harm as defined in s 4”.

[3] The second charge alleges a breach of s 22 of the Harmful Digital Communications Act 2015 (HDCA) (“the second charge”). It is alleged that the defendant posted a digital communication, being semi-nude images of Mrs Iyer, from whom he is separated. The prosecution alleges that: in posting the communication, the defendant intended to cause Mrs Iyer harm; that posting the communication would cause harm to an ordinary reasonable person in Mrs Iyer’s position; and that posting the communication caused serious emotional distress to Mrs Iyer.

From the Harmful Digital Communications Act 2015:

22 Causing harm by posting digital communication:

(1) A person commits an offence if—

(a) the person posts a digital communication with the intention that it cause harm to a victim; and
(b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
(c) posting the communication causes harm to the victim.

4 Interpretation: ‘harm means serious emotional distress’.

Posting a digital communication

First the judge considered in detail whether posting to Facebook constituted a digital communication:

“the defendant claims the prosecution has not proved that a Facebook post qualifies as a digital communication, as defined by s 4 of the HDCA”

The HDCA definition:

digital communication-
(a) means any form of electronic communication; and
(b) includes any text message, writing, photograph, picture, recording, or other matter that is communicated electronically

The judge ruled against the defendant on that:

I am satisfied, without evidence of the precise protocol and technological basis of Facebook, that the photographs included on the [name of account deleted] account constituted digital communications.

It would have been absurd if posting to Facebook was not a digital communication.

The judge next found that the timing of the posting of the photograph had happened after the HDCA came into force on 1 July 2015.

The judge then considered intention  to cause harm.

[51] The evidence must tend to prove that the defendant posted the “digital communication with the intention that it cause harm to a victim” (in this case Mrs Iyer). Harm is further defined in s 4 of the HDCA as “serious emotional distress”.

[52] I have been unable to find the phrase “serious emotional distress” in any other piece of legislation. Accordingly, it does not appear to have been judicially defined, thus I must consider the definition in terms of the plain meaning of the words, and the wider purpose of the HDCA.

[54] It is clear from the inclusion of the word “serious” that the intended harm must be more than trivial. Being merely upset or annoyed as a consequence of a digital communication would not be sufficient to invoke the sanction of criminal law.

Also, I emphasise that the conduct criminalised by the HDCA is harmful conduct. Offensive, morally repugnant or merely upsetting conduct will not suffice. In order to attract criminal sanction, the conduct must go further.

[56] Turning to the purposive approach, in my view it is clear that the definition of serious emotional distress is designed to balance two competing concerns: the serious effects of calculated emotional harm, and the importance of maintaining free speech.

[58] This Parliamentary discussion reveals that any harm associated with digital communication must be taken seriously. It is important that the court does not assume that emotional distress caused by digital communications is inherently any less harmful than other forms of harm. From this, I interpret that the bar to a successful criminal prosecution must not be set too high.

But:

[59] However, it is also clear that the need to deter harmful online conduct must be weighed against the value of freedom of expression. Freedom of expression is a right protected by s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA). It includes the right to “impart information and opinions of any kind in any form”.

Although NZBORA rights are not absolute, s 6 of NZBORA requires that I consider s 14 when interpreting other statutes, a requirement that is reinforced by s 6(2)(b) of the HDCA.

This demands that the courts do not give an interpretation that would have an unduly restrictive effect on free speech. Indeed, this risk is heightened in the HDCA context, which criminalises expression that would not attract liability if it were communicated through a different medium.

Accordingly, I consider I must not reach an interpretation of “serious emotional distress” that is set too low. Taking a purposive approach requires that I balance the deterrence of online harm with the preservation of freedom of speech.

[60] The text of the statute and the wider purposive context both bring me to the same conclusion. In order to attract liability under s 22 of HDCA, conduct must be harmful to an identifiable victim. I conclude that the definition of “harm”, being “serious emotional distress”, may include a condition short of a psychiatric illness or disorder, or distress that requires medical or other treatment or counselling.

[61] The nub of this element is the intention of the defendant. An intention to elicit a serious response of grief, anguish, anxiety or feelings of insecurity would, in my view, qualify as intention to cause harm for the purposes of HDCA s 22(1).

[63] I stress that at this stage I need only find that the prosecution has made out a prima facie case. It is open to the defence to prove that the defendant was not motivated to control the complainant’s life, or that he could have achieved his motive without inflicting serious emotional distress. However, at this stage of proceedings I find that the prosecution has established a case to answer for this element.

Next the judge considered “where posting the digital communication would cause harm to a reasonable person in the position of the victim”

[64] The prosecution must prove that the communication would cause harm to an ordinary reasonable person in the position of Mrs Iyer (HDCA s 22(1)(b)). Section 22(2) sets out a non-exhaustive list of factors which the court may consider, including:

(a) the extremity of the language used:
(b) the age and characteristics of the victim:
(c) whether the digital communication was anonymous:
(d) whether the digital communication was repeated:
(e) the extent of circulation of the digital communication:
(f) whether the digital communication is true or false:
(g) the context in which the digital communication appeared.

[65] I consider that factors (b); (c); (d); (e); and (g) are relevant to the present
case.

[71] I find that the prosecution has established a prima facie case that the posting would cause serious emotional distress to an objective person in the position of Mrs Iyer.

Finally “whether posting the communication causes harm to the victim”:

[72] It is not enough to prove that the digital communication would cause harm to an objective person. The prosecution must establish that the communication did, in fact, cause harm to the victim.

[73] I have found that discovering the post of the photographs resulted in Mrs Iyer being frustrated, angry, anxious and very upset and that she considered taking time off work. (although she did not recall that she did so).

The only other evidence was from Ms Shroad who reported that at the time she viewed the post, Mrs Iyer almost cried and appeared “very depressed” and required someone to be with her for support. I hasten to add this was not a clinical diagnosis but a lay person’s description of what she observed.

Mrs Iyer did not elaborate on her frustration, anger, anxiety or upset. Ms Shroad did not elaborate on what she meant by “depressed” nor describe Mrs Iyer as exhibiting feelings of serious anxiety or insecurity. What Ms Shroad meant by Mrs Iyer needing “someone to be with her for support” was not elaborated upon.

While the evidence clearly points to some degree of emotional distress, it is not sufficient to satisfy me it has reached the threshold of serious emotional distress (as explored above at paragraphs [52]–-[60]).

I do not overlook the fact that Ms Shroad’s observation, while proximate to the time of discovery of the post, is not necessary determinative of the distress of Mrs Iyer; the distress may have manifest itself later. Nor have I ignored the notion that an inference might be drawn that the needing of support itself meant Mrs Iyer was suffering serious emotional distress.

But the absence of specific evidence as to the root cause of her need is a telling factor against the drawing of such an inference.

[74] The prosecution need only prove that the electronic communication caused harm; not that it caused harm immediately. Whether harm in the form of serious emotional distress was caused is a matter of fact. The prosecution has not led cogent evidence to this effect. Such evidence could have been provided by more detailed and specific evidence from Mrs Iyer as to her reactions, feelings or physical symptoms and their duration or by expert evidence, such as the evidence of a psychologist or counsellor. However, none has been led.

[75] On this basis, I consider that the prosecution has not established a prima facie case that the complainant in fact suffered harm as defined in s 4.

So in summary the judge ruled that:

  • Posting photos to Facebook constitutes a digital communication
  • The defendant intended to cause harm
  • The posting would cause serious emotional distress to an objective person in the position of the defendant

But

  • There was insufficient evidence of harm defined as “serious emotional distress”.

Based on this it seems that prosecutions for ‘harm’ under the HDCA will only succeed in fairly extreme cases proving “serious emotional distress”.

I don’t think this is the judge’s fault, he went to some length to understand and comply with the Act.

Those who deliberately set out to cause harm online shouldn’t have much difficulty keeping degree of the damage below this threshold, unless they misjudge someone’s emotional state and tip them over the edge.

The judgment is here: RESERVED DECISION OF JUDGE C J DOHERTY ON APPLICATION FOR DISMISSAL PURSUANT TO S 147(4)(B) CRIMINAL PROCEDURE ACT 2011

Farrar only blames the judge

David Farrar has posted at Kiwiblog again on the court order that disrupted this site a couple of weekends ago – Judge got it wrong on HDCA.

Amazingly the Judge did not realise the provisions of the Harmful Digital Communications Act which he relied on, were not to come into force for a couple of years.

I’m shocked a Judge would make such a wide ranging order, and not even have properly read the Act to realise most of it was not in force yet.

Comments on that post show that while the judge was ultimately responsible and allowed a mistake to go through he rectified it as soon as he  was aware of the problem.

Comments also do what Farrar didn’t, they pointed out the incompetence (at best) of person or persons involved in the court order, Marc Spring by the look of things with the assistance of Dermot Nottingham.

Here’s some of the comments, by people with obvious legal backgrounds.

In the Hager decision, the High Court made it plain that all relevant information, both factual and legal should be placed before a Judge who is considering an application made without notice to the other side.

A number of things should have been made clear to the Judge by the applicant. First, the Act under which the order was obtained was not yet in force. Second, the order requiring YourNZ to appoint a moderator was not available under the Act in any event. Third, there was no reason why George should not have been served with the application and given the opportunity to be heard. Presumably none of this was advised to the Judge. If that was done in the knowledge that the grounds did not exist, it seems a clear attempt to pervert the course of justice. If not, it says something about the legal skills of the applicant.

It is also a worry that a Judge, faced with a lay litigant invoking novel powers to abrogate the right to freedom of speech, should grant such an order without checking that he was able to do what he was being asked.

That is a worry.

The District Court Judge, Gary Harrison, is well respected by his colleagues and has a solid pedigree in law dating all the way back to being Justice Mahons assistant in the Erebus Inquiry. Clearly he had a bad day and dropped the ball but it is to his credit to have acted quickly to withdraw his decision when he realised the facts and law, as presented, were quite wrong.

Sounds fair.

Seems the lawyer who sought the order needs to be hauled up before a disciplinary committee. The lawyer is as much to blame as the judge for the foul-up, indeed significantly more so. This is even more so in an ex-parte application (where the judge makes a decision without hearing from the other party because of urgency etc). In such a case the person seeking the application is obliged to put all relevant stuff before the judge, not just the stuff that aids the application.

Litigants do not like the other party spouting off publically about matters before the court and judges tend to side with this. I possibly see the original judge’s ruling as being to in aid of stopping public disclosure of matters concerning the case. This could also explain why the judge is reluctant to release the papers concerning this to the other party. Perhaps the judge is being excessively sensitive about this or may have real concerns.

Except that in this case it was the litigants who spouted off publicly about matters they had put before the court.

I assumed that the order was applied for by a litigant in person. If it was a lawyer who made the application it is serious misconduct. The Judge in making any order under that Act is supposed to give a written decision; it would have been interesting to see that but I suppose that as the Act was not even in force, there is no need for the Judge to comply with it.

There’s been no indication a lawyer was involved. Why wouldn’t it  still be serious misconduct for a lay litigant?

Well, either that or apparent negligence (if we are going to be slightly charitable about it).  If there was a lawyer on either side then the judge should have been told.  If there were no lawyers involved then we get to whether the judge checked that the legislation was in force!

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball.

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball

And:

Yup, it is up there.

However, I think he will realise that and he will be kicking himself.

In his defence he might have relied on the supporting memorandum from the applicant and decided not to go behind it to check his jurisdiction under the enabling act.

And:

I had assumed that the person was represented and that it was a High Court proceeding. A High Court judge would have a ‘clerk’ (generally a junior lawyer) to check out these things. A District Court judge may not have had such assistance and so bears the onus of having to verify things but in practice often has to rely on memory or instinct or he/she would not get anything done.. A District Court judge would not have the time to reflect on things that a High Court judge would.

It was District Court.

Interesting comments.

Ultimately it was the judge’s responsibility as he signed the court order. But the appalling stuff ups,  either through incompetence or a deliberate attempt to pervert the course of justice, seem to have been due to the actions of non-lawyers. One way or another they seem to have tried to con the court.

I don’t know why David Farrar only blamed the judge.