R v IYER [2016] NZDC 23957

Judge Harvey

Introduction

This is the first case where judicial consideration was given to the provisions of section 22 of the Harmful Digital Communications Act 2015 (HDC Act) which creates the offence of causing harm by posting a digital communication.

The decision was a ruling on a submission of no case to answer. The prosecution under the HDC was dismissed. But the case is significant for the detailed analysis and interpretation of the provisions of the section and should provide some guidance for the future.

The defendant was facing charges of breach of a protection order and causing harm by posting a digital communication. This commentary is restricted to the HDC Act charge.

The facts

This case, like many other prosecutions under the HDC Act, arose within the context of a failed domestic relationship.

The complainant and the defendant had been married and were separated. She obtained a temporary protection order against him which was later made final. Whilst the order was still temporary the defendant communicated with her on more than one occasion advising that he had been tracking her smartphone while she was on a date with another man and threatened to post pictures of her online.

In August 2015, a Facebook account was created in a name similar to that of the complainant. Pictures of her, clad in her underwear, were posted on the Facebook page. Late in August 2015, one of the complainant’s friends received an invitation from the Facebook account stating the named person wanted her to follow the Facebook page.

The friend contacted the complainant who viewed the photos on her iPad. The complainant, according to the friend, became depressed, was almost crying and required the presence of a person for support. She was frustrated, angry, anxious and very upset. Although she felt unfit for work she did not recall taking time off work.

The defendant admitted creating the Facebook page and uploading the photographs to it.

The issues

There were a number of arguments put forward. One related to the timing of the Facebook posting on the basis that there was insufficient evidence to suggest that the posting was subsequent to the commencement of the HDC Act. The judge was satisfied that the creation of the page in August 2015 could be established.

Another argument revolved around whether or not expert evidence was required to establish that the Facebook page constituted a digital communication.

In dealing with this point, the judge considered the definitions of a “digital communication” and “posts a digital communication.” He held that all that was necessary was for the prosecution to establish prima facie that uploading the photos constituted the act of posting a digital communication.

The judge emphasised the expansive definition of a “digital communication” as any form of digital communication and noted that the second part of the definition focussed upon the nature of the content. A digital communication includes a photo or picture. In the definition of “posting”, again the definition was wide and sufficient to include uploading a picture to a Facebook account.

The judge considered the act of posting in reference to the nature of the material posted. In this case, he held that the photographs posted constituted intimate visual recordings, created by the complainant for personal use or within a confined setting such as a dating website. They were taken within a bedroom setting where there would be an expectation of a degree of privacy and the exposure of body parts – in this case partially exposed breasts – and undergarments brought the photographs within the scope of the definition.

This discussion of the nature of the photographs is not so relevant to the issue of posting a digital communication – although intimate visual recordings fall within that definition – as to the element of harm and likely response of the complainant to seeing such photographs available online.

The judge considered the legislative history and the genesis of the use of the term “digital communication” and in particular the discussion of the distinguishing features of digital communications, referring especially to the digital paradigm property of exponential dissemination – the “capacity to spread beyond the original sender and the recipient, and envelop the recipient in an environment that is pervasive, insidious and distressing”.

Harm

The central issue of the case revolved around a consideration of the nature of “harm” defined in the HDC Act as “serious emotional distress.”

A purposive and plain meaning approach was adopted. Clearly, emotional as opposed to physical harm is required, and the nature of the distinction between the two has developed over a considerable period (see New Zealand Law Commission “Harmful Digital Communications: The adequacy of the current sanctions and remedies” Ministerial Briefing Paper, Wellington, August 2012 at para [4.71]) and it is recognised as being serious and requiring a similar sanction to physical harm (see for example R v Ireland [1998] AC 147 (HL) at 156, R v Mwai [1995] 3 NZLR 149 (CA) at 154-155 and the Health and Safety at Work Act 2015 section 2).

The judge then went on to consider the issue of seriousness. The addition of that adjective meant that the harm had to be more than trivial. Mere upset or annoyance as a result of the communication should not attract the attention of the criminal law. The conduct must be harmful, so the conduct must go further than offensive, morally repugnant or upsetting conduct. On the other hand, the harm need not be of such a nature that mental injury or a recognised psychiatric disorder has been diagnosed.

The judge also considered the importance of freedom of expression, noting that the New Zealand Bill of Rights Act 1990 demands that the courts do not give an interpretation to the law that would have an unduly restrictive effect upon free speech.

The judge also made an observation (at para [59]) that confirms the “Internet Exceptionalism” of this piece of legislation, stating that the HDC Act “criminalises expression that would not attract liability if it were communicated through a different medium.”

The judge then concluded that the conduct must be harmful to an identifiable victim and that serious emotional distress may include a condition short of a psychiatric illness or disorder, or distress that requires medical or other treatment or counselling.

The intention of the defendant

The consideration of harm also was relevant in considering the intention of the defendant – did he intend to cause serious emotional distress within the meaning that the judge ascribed?

It was clear that the breakdown of the relationship was accompanied by bitterness on the part of the defendant. The judge accepted the evidence of the discussion that the complainant had with the defendant in which he threatened to post pictures of her online. There was sufficient evidence prima facie to support the prosecution contention that he wanted to dissuade the complainant from associating with other men or considering relationships which he thought were inappropriate. There was available the suggestion that the defendant wished to inflict feelings of shame, fear and insecurity – forms of emotional distress that would have allowed him to achieve his goal.

Evaluating the communication

Section 22(1)(b) of the HDC Act sets out a form of prospective – some might call it speculative – evaluative test that the Court must apply to determine whether the communication was harmful.

It is a mixed objective/subjective test and it is necessary for the prosecution to prove that the communication would cause harm to an ordinary reasonable person (the objective limb) in the position of the complainant (the subjective limb).

Section 22(2) sets out a non-exhaustive list of factors which the Court may consider. These are as follows:

(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.

The judge considered that factors (b), (c), (d), (e) and (g) were relevant. He concluded that the complainant was in fact the individual who was the target of the communication, and a relevant characteristic was that she was the estranged wife of the defendant. The context of the relationship was also important. There was a protection order in place and it was clear from the defendant’s Police interview that he sought to control her behaviour. It is against this context that the communication should be viewed.

The actions of the defendant, his knowledge of and access to her online accounts and location of her phone, and his threats to shame her represented not only an attempt to embarrass her but to control her through emotional manipulation.

Against that background, such feelings could result in anxiety, depression or trauma approaching the threshold of serious emotional distress. Thus, her particular characteristics and the overall context suggest that the communications would be capable of causing serious emotional distress to the objective person.

The judge also considered the aspect of anonymity or, in this case, pseudonymity, in that the Facebook page had been created in a name very similar to that of the complainant. It did not take much for the complainant and her supporting witness to whom the defendant had sent a message to figure out that it was in fact he who had created the page and that was a factor that the judge took into account.

Although the post was not “repeated” in the sense that a deluge of SMS text messages was received, the judge recognised that a post on a platform such as Facebook had the potential to be accessed many times so that the effect of the post was ongoing.

In this discussion, the judge tacitly recognised another quality of information in the digital paradigm – that of “information persistence” which has been described as “the document that does not die”. (For further discussion of this issue see chapter 2 of David J Harvey, Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age, Hart Publishing, Oxford, expected publication March 2017.)

In this context, the complainant had lost control of the information – in this case, her pictures – and as long as the information remained on Facebook it was accessible by other Facebook users. As it happens, a complaint was made to Facebook and the “false” page was disabled.

The potential disseminatory quality of the digital paradigm was recognised by the judge (at para [69]) in his consideration of the extent of circulation of the digital communication, stating that “the nature of digital communications is that they may be disseminated widely”. In this case, there was no evidence of widespread circulation but of the potential for dissemination. There was no evidence that the post was publicly available (note: it would have been to Facebook subscribers although evidence as to how Facebook works was not presented to the Court) or in fact was accessed by anyone else and so the audience to whom the post was communicated was small.

On the basis of these factors, the evaluation of the communication was that by a narrow margin it would cause harm to an ordinary reasonable person in the position of the complainant. The judge was at pains to observe that this was a finding on the basis of the prosecution evidence only and that the evaluation could be capable of refutation by the defence.

What was critical in the evaluation was the context of the relationship, the use of the digital communication by the defendant to exert power with accompanying threats to do so and the fact that, by posting the communication that he did, the defendant suggested that he had access to the complainant’s intimate details and data.

Was harm caused?

The final element that had to be proven was whether or not harm in fact had actually been suffered. Although the prospective evaluation test in section 22(1)(b) involves a consideration of the potential for harm based upon the objective/subjective test it is necessary for the complainant to have actually suffered harm.

The judge found that the complainant was frustrated, anxious, angry and very upset. She considered taking time off work but did not in fact recall that she had done so. Although an independent witness observed that the complainant was depressed, the judge noted that this was not a clinical diagnosis. Although the evidence pointed to some degree of emotional distress, the judge was not satisfied that it had reached the threshold that he had described and proof of actual harm and its immediacy to the communication was not proven.

Thus, the no case submission was successful and the charge was dismissed.

Comment

It may be thought that this was a curious result and indeed the case has recently been appealed by the Police. How can it be that a finding that a communication fulfilled the mixed objective/subjective evaluation test under section 22(1)(b) yet was not actually harmful?

It must be remembered that the evaluation test is just that. It measures the nature of communication applying the criteria in section 22(2) and considers the potential of the communication for harm.

The final element under section 22(1)(c) examines whether, if section 22(1) (b) is proven, the potential for harm has actually been realised. In this case there was an insufficiency of evidence. But it may well be that there might be an absence of evidence if the complainant was of a robust disposition, or had adopted a “don’t care” attitude to the communication, was annoyed or irritated or adopted the “sticks and stone may break my bones but words will never hurt me” attitude. Tot homines quot sententiae.

Conclusion

The interpretation of new legislation by the courts is always welcome. It brings clarity to and sets up signposts as to the direction in which the legislation should head. It must be remembered that Iyer was a submission of no case and therefore did not benefit from an evaluation of any evidence called by the defendant, nor whether or not the evidence before the Court reached the beyond reasonable doubt threshold.

It does make some helpful findings about the nature of harm and sets up some direction as to what is necessary to prove that vital element.

This case is the first step on the way in which this legislation should be applied. We await further developments (including the outcome of the pending appeal) in this significant and interesting area of law.

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