Prosecutions under the HDC Act
In August 2012, the Law Commission released a Ministerial Briefing Paper addressing harmful digital communications and the adequacy of sanctions and remedies, entitled “Harmful Digital Communications: The adequacy of the current sanctions and remedies”. The Commission observed that the criminal law surrounding communications harms had focussed upon communications that invoke fears of physical consequences to persons or property or those which are obscene and harmful to children. The law had not concerned itself significantly with emotional harm although there were some developments in that regard.
In the paper, the Commission recommended the introduction of a new offence which targeted digital communications which were “grossly offensive or of an indecent obscene or menacing character” and which caused harm. It considered that there was justification for a tailored offence which would provide a primary mechanism to address egregious communications harms at the high end of the scale. During its investigation, the Commission noted an article that expressed concern that laws that are overly expansive and catch communications that do not deserve the heavy penalties imposed by the criminal law, suggesting that such laws should be tailored to deal with the most serious and deliberate cases of harassment or bullying, and noting the chilling effect of broadly worded criminal offences (see Jacob H. Rowbottom “To Rant, Vent and Converse: Protecting Low Level Digital Speech” (2012) 71 CLJ 355). On that matter, the Commission had this to say in its paper:
“We have been mindful of this caution and have been careful to put forward tailored amendments to our law that include suitably high thresholds so that only those communications that have caused serious harm come within their scope.”
In light of that, the Commission suggested that only the most serious and deliberate cases of harassment and bullying would come before the Court. Yet in the space of eleven months there have been 38 prosecutions, which has been something of a surprise. There are a number of possible reasons for this. One may be attributed to public awareness of the problem of cyberbullying and the publicity and controversy that attended upon the passage of the Harmful Digital Communications Act 2015 (HDC Act). Another may be the nature of the offence and the difference between that proposed by the draft Bill prepared by the Commission and the offence as it was finally enacted in section 22. It is this author’s view that the offence originally conceived by the Commission was far more restrictive in its scope than section 22 as enacted.
A third reason may lie in the fact that the nature of digital communications that have been the subject of a prosecution are more prevalent, far more vituperative and far more serious than was anticipated by the Law Commission.
This article will compare the Law Commission’s proposal for an offence with the provisions of section 22 as enacted and then considers the cases that have come before the Court and to which guilty pleas have been entered, the content of some of the communications the subject of prosecutions and closes with some tentative conclusions.
The Law Commission proposal and section 22
The Law Commission proposed that an offence be added to the Summary Offences Act 1981. The language of the proposed section read as follows:
“21A Causing harm by means of a communications device
(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of an communications device a message or other matters that is
a. Grossly offensive; or
b. Of an indecent, obscene, or menacing character; or
c. Knowingly false
(2) The prosecution must establish that –
a. Person A either –
i. Intended to cause person B substantial emotional distress; or
ii. Knew that the message or other matter would cause person B substantial emotional distress; and
b. The message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and
c. Person B in fact saw the message or other matter in any electronic media.
(3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.
(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including –
a. The extremity of the language used
b. The age and characteristics of the victim
c. Whether the message or other matter was anonymous
d. Whether the message or other matter was repeated
e. The extent of circulation of the message or other matter
f. Whether the message or other matter is true or false
g. The context in which the message or other matter appeared.
(5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.
(6) In this section communication device means a device that enables any message or other matter to be communicated electronically.”
The type of offence created by section 22 was similar to that proposed by the Commission, but the way it was articulated was quite different (for the full text of section 22 as enacted, see the New Zealand Legislation website. The first thing is that the message or other matter sent by means of a communications device has become a “digital communication” (meaning any form of electronic communication, including any text message, writing, photograph, picture, recording, or other matter that is communicated electronically). The act of communicating it is covered by the term “posts a digital communication” (meaning to transfer, send, post, publish, disseminate, or otherwise communicate by means of a digital communication any information, whether truthful or untruthful, about the victim, or an intimate visual recording of another individual (including attempts to do any of these things)).
The content of the communication in the Commission’s draft was very specific. It had to be grossly offensive or of an indecent, obscene, or menacing character or knowingly false. In addition, it was necessary for there to be proof of an intention to cause substantial emotional distress, or an awareness that the message would cause substantial emotional distress. That was accompanied by a test that the message would cause substantial emotional distress to someone in the victim’s position. Finally, there had to be proof that the person complaining actually saw the message in any electronic media.
The HDC Act, on the other hand, provides a content test based on harm rather than a strict categorisation of the nature of the content. The requirement of knowledge that the message would cause harm is not present, but there is a specific intention provided that the person intended to cause harm by posting a digital communication. There has to be proof of actual harm and a mixed objective subjective test that the posting of the communication would cause harm to an ordinary reasonable person in the position of the victim. However, there is no requirement that the victim actually see the digital communication, as was proposed by the Law Commission. Rather, section 22(4) defines the victim as the target of a posted digital communication. The reality is that most victims will be both the target and the recipient or viewer of the communication but the definition in section 22(4) does not make that clear. It is possible that a victim might not see the communication but be the subject of the communication and be told about its existence by a third party.
What amounts to harm?
The issue of distress is taken up by the definition of harm. As will be recalled, the element of substantial emotional distress was an element that had to be proven pursuant to subclause (2) of the Commission’s draft. “Harm” is defined in the HDC Act as “serious emotional distress”. This may be similar to “substantial emotional distress” but what is missing is the nature and quality of the communication. All that is required is that a communication, virtually of any material, may be harmful if it causes serious emotional distress.
The specific content of the message is not factored in to the equation. There are certain limiting factors, such as the mixed objective/subjective test in section 22(1)(b). In addition, the court may take into account any factors it considers relevant including seven criteria that were articulated as a test to determine whether a communication was grossly offensive. These criteria are repeated verbatim in section 22(2)(a)-(g).
In its proposed section, the Commission had a two stage test. The first stage examined the nature and content of the communication. Did it fulfil the three criteria in (1)(a)-(c)? Seven factors were set out that might assist in considering the nature and content of the communication. Then once the quality or content threshold had been established the enquiry went on to consider the second stage – the issue of substantial emotional distress. The HDC Act, however, conflates the quality/content issue with that of serious emotional distress, and the only aspects of quality of content involve consideration of the extremity of language, truth or falsity and context. But rather than adopt the careful balancing of interests, and in particular that of the freedom of expression as the Commission did, the dominant element is harm or serious emotional distress.
What is needed to establish harm?
In its paper, the Commission used the general term “harmful digital communication” to cover a spectrum of behaviours involving the use of digital technology to intentionally threaten, humiliate, denigrate, harass, stigmatise or otherwise cause harm to another person. Cyber-bullying, on the other hand, was reserved for abuses that occurred within the context of adolescent peer relationships. The Commission gave consideration to the issue of emotional harm, observing that the criminal law was primarily concerned with the creation of fear of a particular sort – physical damage to person or property. There has to be a relationship between the potential of physical damage and the distress or mental harm that accompanies it. It went on to observe that the fear which anticipates physical harm is not physical harm itself. It is a state of mind which may or may not be more severe than other kinds of distress such as humiliation or the fear of a verbal attack. Both were forms of emotional harm. Both should be viewed equally.
In addition, it was observed that the distinction between physical and emotional harm had broken down over the years. In R v Ireland  AC 147 (HL), it was observed (at 156) by Lord Steyn that “the civil law has for a long time taken account of the fact that there is no rigid distinction between body and mind.” (The tort of the intentional infliction of mental shock or distress was recognised as long ago as 1897 in the case of Wilkinson v Downton  2 QB 57.) The example was given of the tort of invasion of privacy which addresses an intangible harm.
Breach of privacy recognises that a form of damage may be in the form of significant humiliation, loss of dignity or injury to feelings. Distress is a basis for the making of a restraining order under the Harassment Act. To distrurb, annoy or irritate a person by the use of a telephone device is an offence against the Telecommunications Act. It should also be noted that injured feelings may find redress in aggravated damages and in contract damages may lie for emotional distress. Thus it can be seen that the law is no stranger to the concept of the causation of emotional harm as warranting the availability of a remedy.
The statistics – dates of offending and guilty plea cases
Between the time the offence section commenced (3 July 2015) until 17 June 2016, there had been 38 charges laid. Of those charged, 14 pleaded guilty, 16 entered not guilty pleas and, as at 17 June 2016, eight of those charged entered no plea. Of the 38 charged, 37 were male and one was female. One person charged was 15 and was dealt with in the Youth Court. The ages of the adults charged ranged from 17 to 61. 20 charges originated in the South Island, the balance in the North. The greatest number of charges – four – were laid in the Dunedin District Court. Of all the 14 cases where guilty pleas were entered, all but three had been sentenced as at the date of writing. Those awaiting sentence committed their offences on 20 January 2016, 8 March 2016 and 2 April 2016. This has meant a delay before disposal of up to seven months in the longest outstanding case.
The cases where pleas of guilty were entered have provided some interesting and disturbing examples of the quality of the communication that has been the subject of the charge. This tends to suggest that the use of digital communications systems for the purposes of abuse, harassment and extreme embarrassment is far more widespread than the Commission anticipated, and suggests that in fact the legislative recasting of the offence of causing harm by posting a digital communication has not set too low a threshold. Most of the cases to which guilty pleas have been entered have involved communication by way of Facebook, are within the context of a broken relationship and the messages are of a threatening or revengeful nature. Some involve the distribution of intimate images. Only one case involved communications to a victim where there appeared to be no relationship and that the communications were gratuitously abusive and insulting. Some involve the distribution of intimate images with a commentary. Three cases involved the use of text messaging and one involved the use of Instagram.
Examples of harmful communications
The following are representative examples of the communications that were the subject of prosecutions to which guilty pleas were entered. In one case (Police v Lang  NZDC 11488), a communication was sent to a shared email account accessible by the victim’s workmates, involving 11 photographs of the victim in various states of undress, including three photos of the victim’s exposed breasts and four photos of the victim in her underwear.
Another case (Police v Williams (District Court, Tauranga CRI 2015-070-004137)) involved photographs which were posted on Facebook. One photograph showed the victim naked with only an open dressing gown on with her breasts and groin area clearly visible. Another photograph was of the victim in a seated position with no top on and her breasts could clearly be seen. Demeaning and insulting messages were damage may be in the form of significant humiliation, loss of dignity or injury to feelings. Distress is a basis for the making of a restraining order under the Harassment Act. To disturb, annoy or irritate a person by the use of a telephone device is an offence against also posted reading: “Well played I know you’re a player, love having sex from all the guys”; “By the way you’re (sic) life is a living hell, I rather see you in jail where you belong whore slut”; “Hey slut have a look at my timeline you’re on there naked’; and “Yum nice sexy slut look at that body’’.
The victim said posts caused her serious harm in that they embarrassed her because all of her friends and family could see the photos and the comments. She was too scared to go outside in the event the defendant took further photographs of her. The defendant said he posted the images and photographs on Facebook as he was hurting and he wanted revenge and to cause the victim harm for hurting him. He claimed that the victim knew he had taken those naked photographs however he knew that he should not have posted them on Facebook.
A further case (Police v Black (District Court, Greymouth CRI 20-16-018-000021)) involved the use of Facebook private chat. The content of the communications was in the form of degrading and obscene sexual remarks. There were some twenty threatening messages included telling the victim to slit her throat, that she was a bad mother and that she was a waste of space. The victim stated that the communications made her feel worthless and ugly. For his part, the defendant stated that the victim said several similar things to him in person and that he wanted to get back at her by making her feel bad.
In another case (Police v Bisschop  NZDC 24183) which involved the use of Instagram, the communication was in the form of a number of hashtags and phrases which together amounted to threats of damage to property and personal injury. The message read, “The joys of an crazo ex #brokenwindow #kickedindoor #accordeuro #frosty #glass #bitchneedsabullet #crazyexgirlfriend #lowblow #poorcar #handaaccord #wintersmorning #paybackwillcome @[victim’s Instagram address].” This was followed by an icon (cartoon picture) of a firearm. This caused the victim to become fearful for her safety, especially because she and her young son lived alone.
The final example (Police v Kelly (District Court Invercargill CRI 2016-025-000506)) involved a posting of photographs on Facebook with a commentary. The photos were of an intimate nature and depicted the victim naked in a shower. The comments read – “WHY THE F*** DID I DATE YOU LOL” - “LIKE Y DID I DATE THIS FAT SACK OF S**T CHEATING F***IN HOE BAG” - “NEEDS A SHAVE BOYS” - “THAT FAT ROLL.”
It is quite clear that social media is used for the purposes of revenge or exacting some form of retribution. Many of the cases under study have been in the context of failed relationships and the misuse of intimate images acquired either consensually or otherwise in the course of those relationships. Quite clearly the objective is to hurt and embarrass within the context of public fora such as Facebook. It is also clear that the use of such images and the language employed in the examples given is not just to provide an irritant but to seriously upset the victims in front of friends, family or the public. There can be little doubt of the intention to cause harm within the meaning of the HDC Act. In addition the language used and the images displayed breach one or more of the communications principles.
Sentences for offences against section 22 have ranged from a discharge without conviction pursuant to section 106 of the Sentencing Act to a sentence of eleven months’ imprisonment; other sentences of imprisonment have been for terms of three months and six months (see Police v Tamihana  NZDC 6749, Police v Lang  NZDC 11488 and Police v Bust  NZDC 4391). In all the cases involving sentences of imprisonment there were other charges.
The case of Police v Tamihana received a detailed consideration of sentencing issues arising in cases involving a breach of section 22. There were other charges for breach of bail and two for intentional damage, but the lead offence was that against section 22 which the judge described as most serious. The offending arose within the context of a volatile relationship. However, the victim was not the partner of the defendant but her mother who had, on a number of occasions, tried to end the relationship. The defendant was aware of this. On 13 December, he sent a Facebook message to the victim with whom he had not previously communicated. The message included a video attachment with the comment, “What your daughter’s really up to.” The victim opened and played the video which the judge described as a sexual scene involving the defendant’s partner and another. The partner was a consenting party to the making of the video. The victim was very upset, angry and sad to see her daughter being portrayed in this way. She felt feelings of despair and took the view that this was payback for her disapproval of the relationship. Every time she thought of the video it caused her further distress.
In his comments on the legislation itself, the judge made reference to the ease of dissemination of information on the Internet and what has been described as the “online disinhibition effect”. The judge said:
“[W]e live in a world where it is very easy and certainly in a very cowardly way and impersonal third person way to communicate with others without fronting up yourself. The other problem of course is that in this day and age broad dissemination of such material is just at the touch of a button …”
The judge stated that the actions of the defendant were designed to have the maximum possible impact upon the victim and that he acted out of retributive malice in delivering a cowardly and sinister attack. He acknowledged that the HDC Act was new, and that there would probably be worse cases, but that he found it difficult to think of one. The principal objective of sentencing in this case was that of deterrence. The judge fixed a starting point of nine months’ imprisonment with an uplift of three months for totality of offending and a further three for previous convictions. He then applied a 25% discount for the defendant’s guilty plea. The deterrent message was emphasised by the rejection of a sentence of home detention.
In the case of Police v Lang, a sentence of three months’ imprisonment was imposed, which was cumulative upon other sentences. The judge did not embark upon an analysis either of the facts of impact of the offending, primarily because the defendant was facing sentence on a number of other charges involving dishonesty. The victim of Lang’s offending was his former partner. He sent an email to a shared email address at her place of employment to which other employees had access. Attached to the email were eleven photos of the victim in various states of undress including images of her exposed breasts and of her dressed in her underwear. The victim said that she did not consent to any of the photos being taken. He stated that his reasons for sending the images were that he wanted to return them to her and that he wanted closure for himself.
The case of Police v Bust involved a number of charges including cultivation of cannabis, possession of a methamphetamine pipe, driving whilst disqualified, and breaches of community work and release conditions. But the judge took the offence against the HDC Act as the lead offence. The sentence imposed had been the subject of an earlier sentence indication hearing. The communication in this case involved a text message to the victim over a drug debt and threatening the victim and his father in what the judge described as “a pretty serious way”. The sentence of imprisonment of six months was imposed in accordance with the earlier sentence indication.
The defended cases
Of the charges to which pleas of “not guilty” have been entered, the dates of alleged offending tell an interesting story. As at the date of writing, none of the defended cases have been heard. By date of alleged offence the oldest took place on 19 August 2015. The most recent was alleged to have occurred on 21 April 2016. Eleven cases arose in 2016 – the remaining five arose in 2015. Of those, there has been one disposal where a charge was withdrawn by leave (Alleged offence date 28 December 2015, Dunedin District Court CR 15044006509). Although trial by jury is available, none of the defendants have elected trial by jury and have chosen to be dealt with by a judge alone.
The delay in getting cases to hearing must be a matter of concern. Apart from the well-known stresses that are a part of having to relive offending during the course of giving evidence, the definition of harm as serious emotional distress means that victims will have to revisit this specific form of harm many months after the alleged offending took place. This can hardly be said to assist the recovery process. In addition, a specific purpose of the HDC Act is to provide victims of harmful digital communications with a quick and efficient means of redress. Although this probably refers primarily to the civil enforcement process it is my view that it must apply with equal force to the victims of section 22 offences. The language of the clause specifically refers to victim, and the word victim is used in section 22 and especially section 22(5). Given this specific purpose behind the legislation, the hearing of cases involving offending against section 22 should be accorded priority and should be expedited.
The “offence section” of the HDC Act has been in force for twelve months. It has attracted more prosecutions than the Commission envisaged. This paper concludes that there may have been an underestimate in the frequency and venom of online communications especially occurring in the context of failed relationships. The decision in Police v Tamihana sets some helpful guidelines for the factors that a Court should take into account when dealing with offenders charged with an offence against section 22. Deterrence is going to have to be a significant factor, especially given the ease with which the offence may be committed. It is suggested that, when one looks at the examples given in this paper from the cases where guilty pleas have been entered, the statutory threshold in section 22 has not been set too low. The content and effect upon the victims of the various communications must be of concern and warrants the involvement of the criminal law.