Why?

Online harm is a broad term encompassing damage resulting from a wide range of online behaviours, from cyber-bullying to spreading damaging rumours to unauthorised sharing of sensitive or personal information.

A 2023 report commissioned by Netsafe, NZ’s independent online safety organisation, found a significant increase in online harm incidents over the past five years. According to Internet NZ’s Internet Insights for 2023, 18% of New Zealanders have personally suffered online harm or harassment.

Netsafe is the agency responsible for initially assessing complaints about online harm under the Harmful Digital Communications Act 2015 (HDCA). In its briefing to the incoming Minister of Justice in November 2023, Netsafe reported that harm reports under the HDCA were at record numbers, forecasting more than 7000 HDCA complaints to the end of the financial year 30 June 2024.

The current legislative regime for addressing online harm has been criticised as containing gaps and not being fit for purpose as technology advances. Last year, the Department Internal Affairs led a consultation about a proposed new regime for safer online services and media platforms (which we reported on here) and it remains to be seen whether this will lead to the introduction of new laws.

What this means for you

We are increasingly called upon to advise clients as to what they can do to address online harm, ranging from abusive emails and text messages to publication of intimate photos or defamatory social media posts. It seems only a matter of time before deep fakes and AI-generated content appear regularly on this list.

A range of legal options are currently available to people in this situation, including remedies under the HDCA and the Harassment Act as well as actions in defamation and for breach of privacy:

• HDCA: The HDCA provides the District Court with wide powers to provide remedies to victims of online, including the power to make take down orders, and orders that the offending conduct cease. 
  The HDCA contains a list of communication principles, including that digital communications may not be threatening, indecent or obscene, contain false information, be used to harass an individual, or contain something that is published in breach of confidence. Where there has been a serious or repeated breach of one or more of the communication principles, and that causes harm to an individual, the courts are able to act. 
  Unsurprisingly, the courts are dealing with an increasing number of HDCA actions. The District Court now classifies them as urgent applications and treats them as a priority. The process is designed to be as straightforward and fast as possible.
• Harassment Act: The Harassment Act has a broader scope than the HDCA, as it is not confined to online activity. Any pattern of behaviour that reasonably causes the complainant to fear for their safety, or involves a “specified act” under the legislation (for example, following, accosting or making contact with a person) may give rise to a restraining order. Like HDCA actions, Harassment Act proceedings are dealt with by the District Court.
• Defamation: In simple terms, the law of defamation provides rights and remedies for persons whose reputation is harmed by the publication of false statements about them. This includes statements made online. 
  Defamation has in the last few years been used in high-profile cases both in New Zealand and overseas. Notable recent examples include the series of cases involving Colin Craig in this country and the “Wagatha Christie” litigation between Rebekah Vardy and Colleen Rooney in the UK. The latter case is of particular interest as the allegedly defamatory publication was in the form of an Instagram post. 
  An interesting area to watch in defamation law in the near future is liability for AI generated content. Lawsuits are already pending in the US against Open AI relating to allegedly defamatory hallucinations produced by ChatGPT.
• Privacy: While remedies for online privacy breaches, are available under the HDCA, affected individuals may also have access to complaints under the Privacy Act or in the Courts under a claim for invasion of privacy. 
  A recent development in relation to online privacy breaches is the rise in Australia of class actions brought in the wake of cyber attacks when the attacks have resulted in unauthorised disclosure of personal information.

Anyone who is subject to online harm is well-advised to keep clear records of the offending communications or content, such as screen shots or video recordings. This evidence will be critical if legal action is ultimately required to address the behaviour at issue. On the other side of the coin, both individuals and businesses should be mindful that the law provides for sanctions for harmful digital communications, meaning thinking before sending is a golden rule.

Get in touch

For more information please contact our privacy experts below.