Communtity Law Manual | Harassment & bullying | Going to the District Court about cyberbullying

Cyberbullying: Protections against online/digital harassment

Going to the District Court about cyberbullying

When you can apply to the District Court for “takedown” or other orders

Harmful Digital Communications Act 2015, ss 11, 12

If you’ve suffered serious emotional distress because of online material, you can apply to the District Court for it to take action to fix the problem – for example, by ordering the material to be taken down or ordering the person responsible to apologise to you.

However, to be able to go to the District Court you must have complained to NetSafe first, the cyberbullying complaints agency, and given them a reasonable chance to assess your complaint and decide what to do.

There’s no application fee for applying to the District Court.

The following other people can also apply to the District Court:

  • your parents, on your behalf
  • if you’re a school student, then your school principal
  • the police, if they think your safety has been threatened.

What will the court process be?

Harmful Digital Communications Act 2015, s 16

There might or might not be a court hearing. The judge will look at your application and decide whether there needs to be a hearing where the two sides can put their case in person, or whether the case can be decided on the basis of the written information that the two sides have provided (this is sometimes called making a decision “on the papers”).

The judge can consider any evidence or information they think will be helpful, even if it wouldn’t be allowed in a normal court. They can appoint a technical adviser to help them, including for example to work out what action would be practical and effective.

What you’ll have to show in order to get the court order

Harmful Digital Communications Act 2015, s 12(2)

You’ll need to show both of the following things:

  • that there’s been a serious breach (or the threat of one) or a repeated breach of the communication principles, and
  • that the breach has caused you serious emotional distress, or is likely to.

For the communication principles, see above, “The 10 principles for online/digital behaviour”.

Harmful Digital Communications Act 2015, s 19(5)

In deciding whether to make an order, and what kind of order, the judge must take into account a number of factors, including:

  • the content of the particular material and the level of harm involved
  • why the other person posted the material – in particular, whether they intended to cause you harm
  • the subject-matter of the material and its context
  • how widely the material has spread
  • whether you’re particularly young and vulnerable
  • whether the statements are true or false (if statements are involved)
  • whether posting the material was in the public interest
  • the conduct of the person responsible for the material, including any attempts they’ve made to minimise the harm caused to you
  • your own conduct
  • the technical and operational practicalities of making an order, and the costs.

The judge also has to take into account and act consistently with the right to freedom of expression protected by the Bill of Rights.

What orders can the judge make?

Harmful Digital Communications Act 2015, s 19

The District Court judge can order the other person:

  • to take down or disable the post
  • to stop doing, or to not do, what you’ve complained about
  • not to encourage any other people to act in a similar way towards you
  • to publish a correction or an apology
  • to give you a right of reply.

If there’s evidence that the person responsible for the material has encouraged others to cyberbully you, the judge can also make an order against those other people.

Sometimes it will be appropriate for the judge to make an order that applies to the online host – for example, the website operator or the host of an online app – instead of or as well as an order against the person responsible. If you’ve specifically applied for the judge to do this, the judge can order the host:

  • to take down the material or disable public access to it
  • to tell the judge the name of the person responsible for the material, if it was posted anonymously or under a fake name
  • to publish a correction in terms that the judge specifies
  • to give you a right of reply.

Temporary orders

Harmful Digital Communications Act 2015, s 18

If you’ve applied for a court order under the Harmful Digital Communications Act, the judge has the power to make interim (temporary) orders while deciding what to do about your application. The judge can, for example, order the person responsible, or the online host, to take down or disable the material while the judge is deciding the case.

What’s the penalty for breaching one of these court orders?

Harmful Digital Communications Act 2015, s 21

It’s a criminal offence not to obey a court order made under the Harmful Digital Communications Act. The person can be jailed for up to six months or fined up to $5,000. If it’s a company, they can be fined up to $20,000.

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