The media is awash with stories about the IPCA Report
into the New Zealand Police’s handling of complaints by a
whistle-blower (Ms Z) against disgraced former Deputy Police
Commissioner Jevon McSkimming.
At the heart of this
scandal was the decision by the Police to charge Ms Z under
the Harmful Digital Communications Act (HDCA) 2015, after Ms
Z made over 300 digital communication attempts to alert the
Police about Mr McSkimming’s treatment of her, and Mr
McSkimming’s outrageous abuse of power and police
resources for his own self-interest.
However, rather
than investigate Ms Z’s complaints against Mr McSkimming,
the Police ran cover defence for one of their mates, and
prosecuted the real victim, whilst defending the real
offender, under the HDCA.
The HDCA:
The
Harmful Digital Communications Act 2015 (HDCA) was enacted
to address the growing problem of cyberbullying and other
harmful digital communications. While the Act aims to
protect individuals from serious emotional distress caused
by digital communications, there are several legitimate
criticisms regarding its implementation, its impact on
freedom of speech, and the practice of bullies weaponizing
the Act to escape appropriate scrutiny.
No
Absolute Defences Under the Act:
One of the
key criticisms of the HDCA is the absence of absolute
defences. The Act does not provide clear-cut defences for
individuals accused of causing harm through digital
communications. This lack of definitive defences can result
in ambiguity and uncertainty for those trying to navigate
the legal landscape of digital communications. As observed
in Hooper v Gee [2022] NZHC 1854 (29 July 2022), the Act
defines “harm” as “serious emotional distress,” which must
be proven based on the nature of the communication and its
impact on a reasonable person in the complainant’s position.
But what is the threshold of “harm” and who gets to decide?
The Act should have absolute defences within its domain
similar to the Harassment Act 1997 (s 17, Acting for Lawful
Purpose), or the Defamation Act (Truth, Honest Opinion,
Privilege, Consent, Responsible Communication, &
Innocent Dissemination).
Inappropriateness of
“Without Notice” Applications:
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Another significant
concern is the allowance of “without notice” applications
under the HDCA. These applications enable complainants to
seek orders from the court without notifying the defendant,
which can undermine the principles of natural justice. The
case of Hooper v Gee [2022] NZHC 1854 (29 July 2022)
highlighted the necessity of ensuring that applications are
not dealt with “without notice” unless there are compelling
reasons. The court emphasized that notification is a
fundamental part of natural justice, and departures from
this right should only occur when demonstrably justified.
However, courts regularly issue “Without Notice” interim
orders under the HDCA, claiming that “there is a serious
issue to be tried”. Is there though? How would the Court
know? They have only heard one side of the
argument.
Weaponizing the Legislation Against Freedom
of Speech
The HDCA has been criticised for
potentially being weaponised against freedom of speech. The
Act criminalises certain forms of digital communications
that may be deemed harmful, which can lead to the
suppression of legitimate expression. The balance between
preventing harm and preserving freedom of speech is
delicate, and the HDCA’s provisions have raised concerns
about their impact on free expression. As noted in R v Iyer
[2016] NZDC 23957 (28 November 2016), the Act must not
unduly restrict freedom of speech, protected under the New
Zealand Bill of Rights Act 1990. “Without Notice” orders are
wrecking balls to Freedom of Speech.
Lack of
Definition of “Harm” and “Serious Emotional
Distress”:
The HDCA’s definitions of “harm” and
“serious emotional distress” have been criticised for their
lack of clarity. The Act defines “harm” as “serious
emotional distress,” but does not require the establishment
of an identifiable psychological or psychiatric condition.
This broad definition can lead to subjective interpretations
and inconsistencies in its application. The case of R v Iyer
[2016] NZDC 23957 (28 November 2016) underlined that
determining whether serious emotional distress has been
caused involves a part-fact and part-value judgment,
considering factors such as the nature, intensity, duration,
and context of the distress. In other words, “harm” is
whatever anyone wishes it to be, which makes the entire
premise of “harm” redundant, vacuous, vague, and thoroughly
unreliable as a reference point for legislative action
against another.
Assumption of Harm Before Proof of
Harm:
A further criticism is the assumption of harm
before it has been proven to have occurred. The HDCA allows
for actions to be taken based on the likelihood of causing
harm, rather than requiring concrete proof of harm. This can
lead to premature actions against individuals accused of
causing distress, without sufficient evidence to support the
claims. The case of Hooper v Gee [2022] NZHC 1854 (29 July
2022) illustrates this point, where the court must be
satisfied that there has been a serious breach or repeated
breach of communication principles, and that the breach has
caused or is likely to cause serious emotional distress. The
HDCA is the only legislation I can think of that holds
someone guilty of the alleged crime before the alleged crime
is ever tested in court. That is appalling legislative
drafting.
Repealing the HDCA:
The lack of
absolute defences, the inappropriateness of “without notice”
applications, the potential suppression of freedom of
speech, the vague definitions of “harm” and “serious
emotional distress,” and the assumption of harm before proof
of harm are concerns that are so significant, that the
immediate repeal of this very poorly-drafted legislation
should now be seriously considered by Government.
If a
young and vulnerable woman, who is appealing to the highest
statutory authority in the country for help, can have the
HDCA weaponised against her to shut her up by this same
authority, then the HDCA isn’t just an unsafe piece of
legislation; it’s repugnant to the rule of law.
The
HDCA needs to be repealed, and it needs to be repealed
immediately.
