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Cyberbullying: How to apply for a takedown order via Netsafe

Key Takeaway

The Harmful Digital Communications Act 2015 provides a framework for addressing harmful digital communications, including cyberbullying, in New Zealand. Netsafe, as the approved agency, assists individuals in resolving complaints and can facilitate applications to the District Court for takedown orders or other remedies if resolution cannot be achieved voluntarily.

Understanding Harmful Digital Communications in New Zealand

New Zealand's legal framework for addressing harmful digital communications, including cyberbullying, is primarily set out in the Harmful Digital Communications Act 2015 (HDCA). This Act aims to deter, prevent, and mitigate harm caused by digital communications [Source: Harmful Digital Communications Act 2015, s 3].

What is a Harmful Digital Communication?

A digital communication is defined broadly to include any communication of information by means of a telecommunication link, such as emails, text messages, social media posts, or online videos [Source: Harmful Digital Communications Act 2015, s 4].

A harmful digital communication is a digital communication that is an egregious breach of one or more of the 10 communication principles and that causes, or is likely to cause, serious emotional distress to the person who is the target of the communication [Source: Harmful Digital Communications Act 2015, s 5].

The 10 Communication Principles

The HDCA establishes 10 communication principles that outline how digital communications should be conducted. A communication may be considered harmful if it is an egregious breach of one or more of these principles. The principles state that a digital communication should not:

  1. disclose sensitive personal information about an individual;
  2. be threatening, intimidating, or menacing;
  3. be grossly offensive;
  4. be indecent or obscene;
  5. be used to harass an individual;
  6. make a false allegation;
  7. incite or encourage an individual to commit suicide;
  8. denigrate an individual by reference to their colour, race, ethnic or national origins, religion, gender, disability, or sexual orientation;
  9. incite or encourage another person to send a harmful digital communication; or
  10. cause a person to feel unsafe [Source: Harmful Digital Communications Act 2015, s 6].

Netsafe's Role as the Approved Agency

Netsafe is designated as the approved agency under the HDCA. Its primary function is to provide a non-judicial pathway for resolving complaints about harmful digital communications [Source: Harmful Digital Communications Act 2015, s 8, s 9]. Netsafe's role includes:

  • Assessing complaints to determine if they relate to a harmful digital communication.
  • Providing advice and assistance to individuals affected by harmful digital communications.
  • Contacting individuals or organisations responsible for the harmful communication to request its removal or resolution.
  • Mediating between parties to find a resolution.
  • Assisting individuals in applying to the District Court if a resolution cannot be reached through Netsafe's process [Source: Harmful Digital Communications Act 2015, s 9].

Applying for a Takedown Order via Netsafe

The process for seeking a takedown order (an order for the removal of harmful content) or other remedies typically begins by making a complaint to Netsafe. This is the recommended first step, as the Act encourages resolving issues without court intervention where possible.

  1. Making a Complaint to Netsafe: An individual affected by a harmful digital communication can submit a complaint to Netsafe, providing details about the communication, its nature, and the harm caused. Netsafe has an online reporting tool for this purpose.
  2. Netsafe's Assessment and Resolution Efforts: Upon receiving a complaint, Netsafe assesses whether the communication likely breaches the 10 communication principles and causes serious emotional distress. If it meets the criteria, Netsafe will attempt to facilitate a resolution directly with the person responsible for the communication or the platform hosting it (e.g., social media company, website host). This may involve requesting the removal of the content or an apology.
  3. Referral to the District Court: If Netsafe's attempts to resolve the issue are unsuccessful, or if the case is particularly severe or complex, Netsafe can assist the affected individual in applying to the District Court for an order. While Netsafe facilitates this referral, the application to the District Court is ultimately made by the individual [Source: Harmful Digital Communications Act 2015, s 9(1)(e)].

District Court Applications and Orders

An application to the District Court for an order concerning a harmful digital communication may be made by the individual who is the target of the communication or by an approved agency (Netsafe) on their behalf [Source: Harmful Digital Communications Act 2015, s 10]. The District Court may consider applications even if Netsafe has not been involved, but it may refer parties to Netsafe for assistance [Source: Harmful Digital Communications Act 2015, s 10(2)].

If the District Court finds that a digital communication has breached one or more of the 10 communication principles and has caused, or is likely to cause, serious emotional distress, it can make a range of orders, including:

  • Takedown Order: An order requiring the person who posted the communication to remove it or to stop posting it [Source: Harmful Digital Communications Act 2015, s 11(1)(a)].
  • An order requiring a service provider (e.g., social media platform) to release the identity of the person who posted the communication [Source: Harmful Digital Communications Act 2015, s 11(1)(b)].
  • An order requiring a service provider to remove the communication [Source: Harmful Digital Communications Act 2015, s 11(1)(c)].
  • An order requiring the person who posted the communication to publish a correction or an apology [Source: Harmful Digital Communications Act 2015, s 11(1)(d), s 11(1)(e)].
  • A cease and desist order, preventing further harmful communications [Source: Harmful Digital Communications Act 2015, s 11(1)(f)].

The court can also make interim orders to address urgent situations before a full hearing [Source: Harmful Digital Communications Act 2015, s 12].

Offences and Penalties

It is an offence to fail to comply with an order made by the District Court under the HDCA. A person who breaches such an order may be liable on conviction to a term of imprisonment not exceeding 6 months or a fine not exceeding $5,000 for an individual, or a fine not exceeding $20,000 for a body corporate [Source: Harmful Digital Communications Act 2015, s 19].

The Act also includes an offence for inciting suicide, where a person who posts a digital communication that incites or encourages another person to commit suicide commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 years [Source: Harmful Digital Communications Act 2015, s 23].

When to Seek Independent Legal Advice

Individuals facing issues with harmful digital communications or considering a District Court application should consult with Netsafe in the first instance. For complex cases, or if a matter proceeds to court, seeking independent legal advice from a lawyer is recommended. Individuals can also contact Community Law Centres for free legal information and advice.

Key Resources