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Revenge porn and the Harmful Digital Communications Act (HDCA)

Key Takeaway

In New Zealand, the Harmful Digital Communications Act 2015 prohibits sending digital communications that cause serious emotional distress, including intimate visual recordings without consent. The Crimes Act 1961 further criminalises making or distributing intimate visual recordings without consent. Victims can report issues to Netsafe or the Police, with legal remedies including content removal and imprisonment.

The term "revenge porn" generally refers to the distribution of sexually explicit images or videos of a person without their consent, often by a former partner. In New Zealand, this issue is primarily addressed by two key pieces of legislation: the Harmful Digital Communications Act 2015 (HDCA) and the Crimes Act 1961.

The Harmful Digital Communications Act 2015 (HDCA)

The Harmful Digital Communications Act 2015 (HDCA) aims to deter, prevent, and mitigate harm caused to individuals by digital communications [Source: Harmful Digital Communications Act 2015, s 3]. A digital communication is defined broadly to include any text, statement, picture, photograph, image, audio recording, or video recording, encompassing content shared via social media, websites, email, and other electronic means [Source: Harmful Digital Communications Act 2015, s 4].

Core Principles for Digital Communications

The HDCA establishes ten communication principles that digital communications should uphold. A communication may be considered harmful if it breaches one or more of these principles and causes serious emotional distress to the victim [Source: Harmful Digital Communications Act 2015, s 22]. Serious emotional distress refers to a level of distress that a reasonable person in the victim's position would experience [Source: Harmful Digital Communications Act 2015, s 22(1)(b)].

Specifically relevant to "revenge porn" is the principle that a digital communication is not to be used to send, post, or publish an intimate visual recording of a person [Source: Harmful Digital Communications Act 2015, s 6(d)].

The other principles state that a digital communication is not to be used to:

  • menace, abuse, or harass a person [Source: Harmful Digital Communications Act 2015, s 6(a)]
  • make a false allegation [Source: Harmful Digital Communications Act 2015, s 6(b)]
  • disclose sensitive personal facts about a person [Source: Harmful Digital Communications Act 2015, s 6(c)]
  • make a threat to a person [Source: Harmful Digital Communications Act 2015, s 6(e)]
  • incite or encourage a person to commit suicide [Source: Harmful Digital Communications Act 2015, s 6(f)]
  • denigrate a person by reference to their colour, race, ethnic or national origins, religion, disability, or sexual orientation [Source: Harmful Digital Communications Act 2015, s 6(g)]
  • incite or encourage another person to send a digital communication to a person for the purpose of causing harm [Source: Harmful Digital Communications Act 2015, s 6(h)]
  • contain an identified computer program designed to damage or interfere with a computer system [Source: Harmful Digital Communications Act 2015, s 6(i)]
  • contact a person, or send a digital communication, by impersonating another person [Source: Harmful Digital Communications Act 2015, s 6(j)]

Resolving Harmful Digital Communications

Netsafe is the approved agency under the HDCA. It receives complaints about harmful digital communications and works to resolve them, often by contacting the content host to request removal. If a resolution cannot be reached, or if the harm is severe, a person can apply to the District Court for an order [Source: Harmful Digital Communications Act 2015, Part 2].

The District Court has the power to make various orders, including ordering the removal of content, preventing further digital communications, requiring a correction or an apology, or awarding costs or damages [Source: Harmful Digital Communications Act 2015, s 20].

Offences under HDCA

A person commits an offence if they post a digital communication with the intention that it causes harm to a victim, it does cause harm to the victim, and it would cause serious emotional distress to a reasonable person in the victim's position [Source: Harmful Digital Communications Act 2015, s 22]. Failure to comply with a court order made under the HDCA is also an offence [Source: Harmful Digital Communications Act 2015, s 24].

The Crimes Act 1961 – Intimate Visual Recordings

The Crimes Act 1961 specifically addresses the non-consensual creation and distribution of intimate visual recordings, which is highly relevant to "revenge porn."

Definitions

An intimate visual recording means a visual recording of an intimate zone, or an intimate act, of another person [Source: Crimes Act 1961, s 216F(1)]. An intimate zone is defined as the genital region, the buttocks, or the breast of a female [Source: Crimes Act 1961, s 216F(1)]. A recording depicting these areas is still considered an intimate visual recording even if the person is clothed, if the context suggests the person is nude or engaging in an intimate act [Source: Crimes Act 1961, s 216F(2)].

Offences and Penalties

It is an offence to make an intimate visual recording of another person without their consent, knowing that they do not consent, or being reckless as to whether they consent [Source: Crimes Act 1961, s 216G].

It is also an offence to distribute an intimate visual recording of another person if the person distributing it knows that the other person did not consent to the distribution (or is reckless as to whether they consent), and knows the recording was made without consent (or is reckless as to whether it was) [Source: Crimes Act 1961, s 216I].

Both making and distributing an intimate visual recording without consent carry a maximum penalty of imprisonment for a term not exceeding 2 years [Source: Crimes Act 1961, s 216G(3), s 216I(3)].

When to Seek Independent Legal Advice

Individuals seeking to understand their specific rights and options regarding harmful digital communications, including non-consensual intimate visual recordings, are encouraged to seek independent legal advice. This information is general in nature and does not constitute legal advice. Support and guidance can be obtained from the Police, Netsafe, and Community Law Centres which provide free legal services.

Key Resources