Lecture 19

Reading of Statutes
Crest - Not relevant
Index - Details other pieces of legislation that are referred to
Analysis - The contents (Trespass Act s.1 - s.14) with each section heading/ marginal note
Section heading/ Marginal Note - Breaks the piece of legislation in different sections with the
note detailing what that section is about
Cf. _, No. _, s. _ - Reference to earlier Act and section that dealt with the same subject matter -
helps interpret as could show why changes were made
Endnote - shows which Ministry has dealt with the Act (below the front page in recent Acts, or
at the end of older Acts)
Savings Provision (older Acts) - Tells the reader the relevant legislation that still exists that the
current Act has not repealed or restricted OR Consequential Amendments to other Acts -
Amendments made to other Acts within the current piece of legislation
Reprints Notes - Notes what the Act is, found at the end of the Act eg. ‘This is a reprint of the
Harmful Digital Communications Act 2015 that incorporates all the amendments to that Act as at
the date of the last amendment to it.

Breaking down of Statute

Section - 1
Sub-section - (1)
Paragraph - (a)
Sub-paragraph - (i)
Amendment - (1A) - an insert

Drafting
- Underlining policy to every piece of legislation
- Parliamentary Counsel Office is responsible for the drafting of legislation - aware of other
pieces of legislation and is a good body of drafters, their guidelines are detailed in CM1
p. 3 -12
- PCO is under the control of the Attorney-General - separate from possible political
interference

Is legislation the right way to solve the issue that we are looking at, in reference to the harmful
effects of digital communications?
- Should we have law to deal with this or are there more effective alternatives?

Good Drafting
- Clear
- Unambiguous
- Accessible
- Stand-alone
- Concise
Legislative Process
Detailed on CM1 p.46

Legislation Design
3 Core Objectives
- Fit for purpose
- Constitutionally sound
- Accessible
The LDAC (Legislative Design Advisory Committee) is meant to ensure that these objectives
are upheld when legislation is upheld

A few guidelines
[2] Defining the policy objective and purpose of the proposed legislation
- The policy objective must be clearly defined and discernible
- The provisions of the proposed legislation should be consistent with its purpose and the
policy objective that underlies it
- Public consultation should take place

[3] How new legislation relates to the existing law

- Any existing legislation that relates to the same matters or implements similar policies to
those of the proposed legislation should be identified
- Any conflict or interactions between new and existing legislation should be explicitly
addressed in the new legislation

[4] Fundamental constitutional principles and values of New Zealand law

- Legislation should be consistent with the dignity of the individual and the presumption in
favour of liberty
- Legislation should be consistent with the principles of the Treaty of Waitangi
- Legislation that overrides fundamental rights and values must use clear and
unambiguous wording

[20] Creating a new public body

- A new public body should be created only if no existing body possesses the appropriate
governance arrangements or is capable of properly performing the necessary functions
- Legislation should create a new tribunal only if it is inappropriate to give new powers to
an existing tribunal and no other court, tribunal, or other specialist is better placed to
exercise the power

HDCA: 2012 Report and a Problem

- Digital technology was creeping in and people were becoming a victim of it
- More than 90% of NZers in the 15-49 age group are mobile phones users
- As of May 2011, 1.9 million NZers had active internet connections via mobile phones
 - Survey of NZ second school students in 2011 found that 65% of pupils had a Facebook
account
- The emergence of cyber bullying - direct link to suicide
- Is legislation the way to deal with this problem or are there other ways of dealing with it?

The existing law at the time

Criminal Offences?
- Crimes Act 1961
- Harassment Act 1996
- Summary Offences Act 1981
- Telecommunications Act 2001
- Films, Videos, and Publications Classification Act 1993
Civil Remedies?
- Citizen through citizen
- Limitations: hiring lawyer, go to Court, face individual/party that is inflicting the abuse/
harassment

Lecture 20
Harmful Digital Communications Act

Law Commissioner
- Why does the law get changed?
- Who changes the law?
- Why not something else?

Legislation Design and Advice Committee

- Is the policy clear?
- What words are being used?
- How this accord with other legislative values? - The “statute book” (how all of the law
works together and how it relates to the values of our society)

The Deep Background: The New Media Reference

- The old law was based on print media and broadcasting television
- It is supposed to look broadly at the legal regulation of New Media
- Law Commission releases “Ministerial Briefing’ in 2012 at the bequest of Minister Collins
- HDCA becomes separate - it becomes law, the wider project fails due to the power of
the media, can’t be particularly controlled

The reason why it all becomes law

- The deep public concern surrounding teenage mental health
- A real interest by the Prime Minister (John Key) and Minister Collins - having support is
vital, Prime Minister’s support tends to mean that the law will change
- High profile cases of extreme harm
 - Publicity of online posting relating to the sexual exploitation of teenagers which
motivated more people to be invested in this issue

Why reform
- Widespread concern about misuse of cyberworld harms
- Emotional and reputational harm can be real harm
- A realisation that people need protecting
- There was a large amount of odd old law - inevitably there was going to be prosecutions
under pieces of legislation that are old, inconsistent and not relevant

Constraints on reform
- Strong bias towards freedom of speech - not about people behaving badly, nor about
pornography
- Law allows people to harm others - what is special about digital harm?
- Necessary to establish that there was a real problem
- The traditional mechanisms in place were too slow - dealing with it in a civil matter
- It is the reality that a lot of things go off-shore/ come from off-shore

Key Design Feature

Hierarchy
Approved Agency - Co-operation
- The key role in education, and in making it all work - establish a proper public body that
would take you seriously, give people education about how to avoid harm, give people a
place to go to if they do get harmed
- The real actor in the story

Civil Regime Based Around Quick Procedure to Take Down - Civil Sanctions
- Creation of new principles
- Relation to existing law

Criminal Provisions - Criminal Sanctions

- Are they potentially being overused
- Is there a way to draft so as not to be overbroad

Key Definition - What is ‘harm’?

Harm: serious emotional distress

Principles (Parallels with Existing Law)

- Difficulties to the double up of law - one part could be favoured over the other, setting
aside massive portions of the law
- These new principles provide new law eg. Principle 9
Principle 1
A digital communication should not disclose sensitive personal facts about an individual. (law of
privacy – civil law)
Principle 2
A digital communication should not be threatening, intimidating, or menacing. (Crimes Act)

Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position
of the affected individual. (Telecommunications Act)

Principle 4
A digital communication should not be indecent or obscene. (Classifications statutes)

Principle 5
A digital communication should not be used to harass an individual.(Harassment Act )

Principle 6
A digital communication should not make a false allegation. ( civil law -defamation)

Principle 7
A digital communication should not contain a matter that is published in breach of confidence.
(civil law – breach of confidence)

Principle 8
A digital communication should not incite or encourage anyone to send a message to an
individual for the purpose of causing harm to the individual. (Crime)

Principle 9
A digital communication should not incite or encourage an individual to commit suicide. (Crime)

Principle 10
A digital communication should not denigrate an individual by reason of his or her colour, race,
ethnic or national origins, religion, gender, sexual orientation, or disability (Human Rights Act)

Free Speech Key Restraint

How do we make it clear that free speech is important?
S.14 NZBORA - Freedom of Speech
S. 6 NZBOAR - Interpretation consistent with the Bill of Rights to be preferred
- Wherever an enactment can be given a meaning that is consistent with the rights and
freedoms contained in this Bill of Rights, that meaning shall be preferred to any other
meaning

The Criminal Provision

- Make sure the statute does not overly criminalise
- Places emphasis on how it is criminal to intend to cause serious emotional harm and
then carry this out
 - Seen in ‘S.22 - Causing harm by posting digital communication’ in HDCA

What doesn’t happen

Not a specific tribunal - processed through the District Court
- Damages cannot be awarded under this statute

What Law Commission didn’t recommend - Legislation as a Coat Hanger

S.23 - 25: an attempt of the internet industry to avoid being liable under the Act, and to not be
liable for the damage that spurs from their sites

Lecture 21
HDCA: 2012 report and a problem

· To justify the creation of a new piece of legislation, there should be a definable

problem.
· What was the problem in our case?
· A: see Law Commission Ministerial Briefing.

More like three problems

· One: The development of a new and unprecedented social harm: digital harm, that
had to be recognised as real (help/prevent/punish).
· Two: The need for legislation that could respond specifically to the new digital
environment.
· Three: The lack of a forum for people to get quick and accessible help.

The existing law at the time

· Criminal offences (do not suit the remedies / may be a bit overkill)
o Crimes Act 1961 (threat to kill / destroy property / blackmail / incite suicide)
o Harassment Act 1996 (repeated harassing behaviour)
o Summary Offences Act 1981
o Telecommunications Act 2001 (trying to intentionally offend someone on a
telephone)
o Films, videos, and Publications Classification Act 1993 (distribute objectional
publications).

·Civil remedies?
o Restraining order
o Breach of confidence
o Copyright
What does the HDCA do?
· Established Approved Agency (NetSafe)
· Takedown orders (and others) (which work very quickly.
· Criminal offences (tailored specifically for the offences)
· Safe harbour provisions.
 · Does the Act solve the identified problems and reflect good design?

Law Commission Bill and Act comparison

· Purpose clause
· Tribunal
· Nature of 'harm'

Evolution of a purpose clause

· LC - 3 Purpose
o The purpose of this Act is to mitigate harm caused to individuals be electronic
communications

· HDCA - 3 Purpose
o (a) deter, prevent, and mitigate harm caused to individuals by digital
communications; and
o (b) provide victims of harmful digital communications with a quick and efficient
means of redress.

§ HDCA adds a whole new provision on the victim

§ Added 'deter and prevent harm' - try to stop the issue before it has
happened. Mitigate on its own just means make less severe.
§ 'Quick and efficient' provides clarity
· How it may help:
· Makes it clearer on what the Act is trying to achieve - helps
with statutory interpretation.

Checking purpose against LDAC guidelines- (2) Defining the policy objective and purpose of
proposed legislation:

· All the policy objectives seem to meet the purpose of the Bill.
· Gareth Hughes says it is too broad - therefore it might do more than just the policy
objectives.
· It was the select committee report that added to the purpose. Talks about matching
purpose with policy objectives.
· Overall: Yes.

Tribunal vs Court

· Law Commission recommended the establishment of a Tribunal

· The HDCA does not include one.
· Why does this matter?
LDAC Creating a new public body

· A new public body should be created only if no existing body possesses the
appropriate governance arrangements or is capable or properly performing the
necessary functions.
· Should create new tribunal only if it is inappropriate to give new powers to an existing
tribunal and no other court, tribunal or other specialist body is better placed to exercise
the power.

Law Commission said:

· A tribunal was needed.

· More suited, less formal.
· Quicker.
· Tribunal could have a wider range of orders.

But draftsperson found we didn't need a new one by district court weren't given the power to
award damages.

· Shows guidelines seem to be working, didn't need tribunal, gave district court the
same powers the tribunals would have.

Offence of causing harm

How has the offence changed between LC Bill and HDCA 2015. Why did it change? The theme
has changed. Probably changed because the purpose of the statute has to focus on harm and
emotional distress, and thought these new provisions would suit this purpose better.

LC: (2): prosecution must establish person a Intended to cause emotional distress.
...
Enacted: Not included. Different thing that must establish.

LC: Does not define what the victim is

....
Enacted: (4) defines what the victem is

LC: (5) $2000 fine, 3 months jail time

....
Enacted: (3)(a)(b) $50,00 fine, 2 months jail. Also introduced body cooperate.

LC: (1) Offensive / objectional nature of defence

....
Enacted: The person saw the message

LC: (1) and (2) address the nature of the message

...
Actual: (1) Just broadly that it must cause harm

LC: A communication device

....
Enacted: Posting the digital communication.

All the factors are the same across both bills.

· Where is the freedom of speech. Satisfy the people who get grumpy about freedom of
speech. A strong lobby of free speech. Put express provision in the act that BORA
applied.

(4) Fundamental constitutional principles and values of New Zealand law:

· Legislation should be consistent with the dignity of the individual and the presumption
in favour of liberty.

· Q: Does this legislation threaten free speech?

o Tells people that there are some thing that they cannot do (sent to jail, fined)
· Q: How does it protect free speech?
o Its relation to BORA.
· If there is doubt BORA might come into play.

Question for discussion

· Newsroom investigated Ray Avery re not being easy to work with, although presented
his answers fairly.
· Avery gets angry and uses HDCA to complain about news reporting.
o Tells NetSafe the reports have caused him serious emotional distress
o Newsroom say they are simply presenting the truth
· NetSafe has rejected this as not being the scope of the act, the scope of the harm.
· Balancing free speech v freedom of the press; looks like free speech of the press has
won.

Lecture 22
Harmful Communications Act
 - Freedom of Expression (both an external standard, an extrinsic aid found within BORA
and an intrinsic aid within HDCA)
- Read entire legislation to truly understand the meaning of the HDCA

NZ Police v B.
- The issue is surrounding the understanding of the “harm threshold.”

Facts
- Ex-husband attained photos of his ex-wife that were private
- Ex-husband posted photos online with the purpose of deterring his ex-wife to end a
protection order that she had put in place, and also to prevent his ex from seeing other
men.

“Harmful Digital Communications Act seeks to deter, prevent and mitigate harm caused to
individuals by digital communications; and provide victims of harmful digital communications
with a quick and effective means of redress”.

S.4 of the HDCA: harm means “serious emotional distress”.

- May take into account any factors it considers relevant, including; the extremity of
language; age and characteristics of the victim; whether the digital communication was
anonymous, repeated, true or false; and the context in which the communication
appeared. (s. 22 (2))
- The offence enacted in s22 (content-neutral - the post would cause harm to an ordinary
reasonable person in the victim’s position, and does so) is more serious than that
proposed by the Commission (messages that were grossly offensive, or of an indecent,
obscene or menacing character, or knowingly false, limits the maximum penalty to a
term of three months imprisonment.)
- Law Commission emphasised harm to extend to “a full range of serious negative
consequences which can result from offensive communication, including physical fear,
humiliation, mental and emotional distress.”

- The HDCA has different thresholds between a civil regime and a criminal regime.
 - Notes that the Act draws on the work of the Law Commission in response to the growing
concern about the impact of information technology.

5 Observations about the definition of harm

1. The definition is exhaustive
2. The Act eschews minor emotional distress
3. That determination is part fact, part value-judgement.
4. Consideration should be given to obvious factors such as the nature of the emotional
distress
5. There is not much to be gained by referring to a dictionary or a thesaurus when
interpreting and applying the phrase “serious emotional distress”.

Complainant
- “Shocked, she was very shocked.”
- “Very depressed, she was almost crying and I had to go and be with her because she
was very depressed.”
- May have missed work

The judge could not sustain serious emotional distress had occurred from the actions of the
defendant.

- Should legislation be subjective?