Wednesday, November 30, 2016


Last year, driven by panic around cyber-harassment, the government passed the Harmful Digital Communications Act. Among other things, the Act creates an offence of "causing harm by posting digital communication", punishable by up to two years imprisonment and/or a fine of $50,000. When it was going through Parliament, TechLiberty pointed out that the offence was so poorly defined that it would capture people exposing political corruption by politicians. Now, in the first defended case under the HDCA, a judge has supported that interpretation.

The critical questions are the definitions of "harm" and "serious emotional distress", which are not defined elsewhere. The judge interpreted them like this:

"[A]nguish, anxiety or feelings of insecurity" (the prospect of damage to your political career and even imprisonment) are exactly the intent and expected effect of such a post. There's no public good defence, so the prima facie result is that exposing political malfeasance is a crime in New Zealand. You might hope that a judge would interpret the Act through the lens of the BORA to protect such speech, but that's a risky proposition. As for exposing the identity of a rapist or serial harasser online, you're pretty much fucked.

(In the particular case - a nasty case of someone posting intimate photos of their ex online in an effort to bully and control them - the charge was dismissed as the prosecution failed to provide evidence that such harm was actually inflicted. But the threshold has been set).

I doubt that this was National's intention. But its the law they passed. Now the problem is clear, they need to fix it, and quickly. Otherwise, they invite the conclusion that criminalising the exposure of corrupt politicians is something they're perfectly comfortable with.