Stephen Taylor
Spokesman for Law and Justice
Conservatives Party
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 weaponising 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 and Innocent Dissemination).
Inappropriateness of “Without Notice” Applications:
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 emphasised 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.
Weaponising 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.
