Auckland High Court orders retrial of case under Harmful Digital Communications Act

High Court Judge Mathew Downs has ordered a retrial of a man who had charges of breaching the Harmful Digital Communications Act dismissed in the District Court.

The man posted inappropriate photos of his former partner on Facebook. In the Manukau District Court, the man was found guilty of breaching a protection order but not of causing harm under the Harmful Digital Communications Act. At the time, the District Court Judge Colin Doherty said the distress experienced by the victim did not meet the threshold of serious emotional distress required under the Act. The decision was widely criticised and the police appealed the decision in the Auckland High Court.

High Court Justice Downs quashed the decision and ordered a retrial. He ruled that the District Court Judge had failed to consider the evidence and context, to correctly establish serious emotional harm as defined in the Harmful Digital Communications Act. Justice Downs said "The judge approached the issue by isolating the various descriptions of how the complainant felt, rather than - as required - assessing the evidence in its totality." Justice Downs also stated in his written decision that "Furthermore, the Judge had no apparent regard to context."

Privacy law specialist Kathryn Dalziel said the decision clarified the law: "It means that we are not setting an impossible threshold for complainants to make a complaint about pictures that they may have given a partner, or pictures that were okay at the time but are not okay because they're now being plastered all over Facebook."

Media reported the court was told the woman believed her ex-partner had posted the photos to blackmail her into removing a protection order.

The Government commented that the law is working effectively.

Background

The Harmful Digital Communications Act came into effect in 2015. It introduced measures to address damaging online communications, offer solutions to victims and hold perpetrators accountable.

NetSafe is the Government Appointed Approved Agency for providing advice and support related to harmful digital communications.

More information

The Ministry of Justice published new information on applying for a Harmful Digital Communications Order on their website earlier this year.