Going to the police: When the criminal law can help with harassment
Criminal offences under the Harmful Digital Communications Act
Intentionally causing harm through “digital communications”
It’s a criminal offence for someone to cause you serious emotional distress by posting a “digital communication” if they intended to cause you harm. The other person can only be convicted if an ordinary reasonable person in your position would have been harmed by what happened (see below).
The term “digital communication” covers the full range of online, electronic and digital communications. It can include sending you text or emails, or posting online comments about you on Facebook, Twitter or other social media sites or in an online forum or blog, or posting intimate photographs or videos of you online (“revenge porn” for example).
Factors the judge will consider
Harmful Digital Communications Act 2015, s 22(2)
In deciding whether an ordinary reasonable person in your position would have been caused serious emotional distress by what happened, the judge can take into account:
- how extreme the language was (if it involved language)
- how old you are and your other characteristics
- whether the post, message or other communication was anonymous
- whether it was repeated
- how many people saw it
- whether it was true or false (if it was a statement)
- the context in which the communication appeared.
What the penalty for this offence?
Harmful Digital Communications Act 2015, s 22(3)
If the person is convicted, they can be jailed for up to two years or fined up to $50,000. If it’s a company, it can be fined up to $200,000.
