For those in positions of official responsibility, and particularly in local government, the prospect of public frustration over certain decisions is ever-present. People forget that a council officer is simply doing his or her job when they are faced with delays and expense from a problematic project. It is easy for a council officer to become the target of frustration.
In the past, councils may have received disgruntled letters or perhaps an irate phone call. However, in the digital age where criticism can be given from behind a keyboard and most people and organisations have an “online presence”, the ease with which online attacks can be launched and the extent to which they can be publicised are significantly greater than more traditional forms of criticism.
Of course a certain level of criticism is to be expected as a public official. It comes with the territory. However, in such circumstances, the criticism should be focussed on the facts and not on the individual. A decision may be justifiably challenged and disputed, but a personal attack on the decision-maker is inappropriate.
An individual finding themselves in a situation where work-related online criticism has taken an upsetting personal, public, and persistent turn need not simply grin and bear it. There are legal avenues available and it is possible to both prevent and, if necessary, remove unwarranted and harmful digital criticism.
The legal options
Both the Harassment Act 1997 (HA) and the Harmful Digital Communications Act 2015 (HDCA) allow an individual to apply to the court for orders preventing online harassment. Recent changes to the HA have brought this piece of legislation up-to-date for a digital age. The HDCA is fairly new legislation that was introduced with the specific purpose of preventing harm to individuals caused by digital communications.
Both the HA and the HDCA recognise the importance of freedom of expression, in that broadly-speaking individuals should be able to express their views publically, even if those views are negative or critical. However, there is a line that can be crossed. Where conduct amounts to harassment or harmful digital communication as defined in the legislation, court orders can be obtained to prevent the conduct in question from continuing.
The Harassment Act
Online harassment under the HA might take the form of direct electronic contact (email or instant messaging, for example) with another person. For such direct contact to amount to harassment it needs to establish a pattern of behaviour. In other words, the electronic contact needs to have occurred on at least two or more occasions within a year.
Online harassment under the HA can also arise from a single act if that single act continues to have an effect over a longer period. In terms of online communications, an instance of this sort of conduct could be posting offensive material about another person on electronic media where that person can see it. An example would be person A posting a statement directed at person B on a Facebook group page. It does not matter that the post was not communicated or sent directly to person B, as long as person A knows there is a likelihood that person B will see what was posted, or that it will be brought to their attention.
Once harassment is established, a court can only make an order stopping the harassment if it is satisfied the order is necessary to protect the applicant (person B) from further harassment. The court also needs to be satisfied that the harassment is causing the applicant distress, and that a reasonable person in the same position would feel the same way. Finally, the degree of distress experienced needs to be reasonably serious so that a court order preventing the harassment is justified.
The Harmful Digital Communications Act
The HDCA identifies a list of ten “communication principles” that apply to digital communications Digital communication is defined broadly as any form of electronic communication. These principles essentially state what a digital communication should not be, such as communications that disclose sensitive personal information, are threatening or indecent, are used to harass, or that make false allegations.
Where a digital communication breaches the communication principles, it will qualify as harmful. However, before a court will make an order stopping such a communication, it needs to be satisfied that the breach of the communication principles is a serious one and that the breach has caused, or is likely to cause, harm to an individual. Harm means serious emotional distress.
There is, however, one further hurdle to obtaining a court order under the HDCA – any complaint under the HDCA must first be referred to the government-approved agency for consideration. The current approved agency is Netsafe. Netsafe must be given a reasonable opportunity to assess a complaint and decide what (if any) action to take before an application is made to any court. A referral to Netsafe can be made easily online through their website (netsafe.org.nz).
Take away points
Within the realm of digital communications, if conduct amounts to harassment under the HA it is likely to also be a harmful digital communication for the purposes of the HDCA.
The communication principles under the HDCA potentially cover a wider breadth of conduct that the HA. From the online perspective, the HDCA was certainly tailor-made for digital communications. However, the level of harm that needs to be established before the provisions of the HDCA apply (serious emotional harm) is potentially higher than under the HA. That being said, an individual applying for an order under the HA still needs to satisfy the court that the degree of distress they are experiencing justifies the court’s intervention. The endpoint may therefore be that in terms of the harm that needs to be shown, there is little practical difference between the HA and HDCA.
The important point is that New Zealanders are now pretty well catered for when it comes to legal protections against online abuse.
If the circumstances require urgent response, proceeding under the HDCA may be unattractive because of the initial delay associated with Netsafe assessing a complaint before an application to the court can be made. That being said, our experience with Netsafe to date has been a relatively positive one and there is of course the possibility of Netsafe resolving the complaint without any further court involvement.
In particularly urgent and serious situations, it may be that the best way to ensure an effective and speedy remedy is to proceed down both paths simultaneously – filing an application with the court under the HA while at the same time making a referral to Netsafe under the HDCA.
In concluding, we can briefly return to our opening comments concerning the official personally attacked for simply doing his or her job. While the demands and expectations of the job might mean that an official may need to establish a higher level of distress than a private individual in the same circumstances, that does not mean public figures should put up with behaviour that amounts to harassment or harmful digital communications. This legislation provides quick and affordable ways to help people in New Zealand stop harmful online personal criticism and attack. Public officials should be as ready to rely on this legislation to protect their reputation and well-being as any other member of the community. We can help you.
