Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698846244714.pdf (New Zealand)
Harmful Digital Communications Bill Government Bill As reported from the Justice and Electoral Committee Commentary Recommendation The Justice and Electoral Committee has examined the Harmful Dig- ital Communications Bill and recommends that it be passed with the amendments shown.
Introduction The Harmful Digital Communications Bill seeks to mitigate the harm caused to individuals by electronic communications and to provide victims of harmful digital communications with a quick and effective means of redress.

We recognise that technology has made possible the rapid, anonymous distribution to a potentially huge audience, and the bill aims to strike a careful balance between preserving freedom of expression and preventing and reducing harm.
The bill would create a new civil enforcement regime and new crim- inal offences to deal with the most seriously harmful digital commu- nications, and would make small amendments to legislation to clar- 168—2 2 Harmful Digital Communications Bill Commentary ify its application to digital communications and to cover potential technological advances.
Complaints about harmful digital communications would be submit- ted to the Approved Agency, a body which would be appointed by the Governor-General by Order in Council as the first step in the civil enforcement regime.

The agency would assess complaints, where appropriate investigating and using negotiation, mediation, or per- suasion to resolve matters.

The agency’s primary functions would include education.
The bill sets out ten communication principles to guide the court and the Approved Agency in assessing whether a digital communication has caused or is likely to cause someone harm.

“Harm” is defined as “serious emotional distress”.

We consider that the principles would provide a useful reference to help infer a common set of values when assessing whether behaviour was acceptable.
The bill would also include a safe harbour provision setting out a process for online content hosts to follow to limit their liability for content authored by others.

The bill would implement the Government’s decisions on addressing harmful digital communications, which are based on the Law Com- mission’s 2012 ministerial briefing paper Harmful Digital Commu- nications: The adequacy of the current sanctions and remedies.
This commentary covers the main amendments we recommend to the bill; it does not cover minor or technical amendments.

Purpose We recommend amending the purpose of the bill (clause 3) to include the deterrence and prevention of harm.

This would reflect the intent of the bill and the Approved Agency’s role of providing education and advice for safe online conduct.
Internet Protocol Address Provider We recommend inserting into clause 4 (Interpretation) a definition of Internet Protocol Address Provider (IPAP) giving the term the same meaning it has in section 122A(1) of the Copyright Act 1993.

An IPAP is an entity that provides users with internet access and allocates internet protocol (IP) addresses to users; for example Telecom and Commentary Harmful Digital Communications Bill 3 Vodafone are IPAPs in their capacity as network providers.
Adding the Copyright Act definition would mean IPAPs would be explicitly included in the bill.

We also recommend inserting subclause 17(2A) to allow the District Court, on application, to make an order against an IPAP to release the identity of an anonymous communicator to the court.

This would mean the identity of an otherwise anonymous person’s account could be revealed using IP address matching by the IPAP.
Professional leader We recommend including in clause 4 (interpretation) of the bill a definition of “professional leader” consistent with section 120 of the Education Act 1989.

Professional leaders would include principals, and supervising teachers of registered schools.

Under subclause 10(1)(c) a professional leader could apply to a District Court for an order mitigating harm, by means including the taking-down or disabling of material, concerning a student at their institution.
This would give schools and other educational institutions another tool, in addition to their own policies and procedures, to protect their students from cyberbullying.

Approved Agency We recommend inserting new subclause 7(5) to make the Approved Agency subject to the Ombudsmen Act 1975, the Official Informa- tion Act 1982, and the Public Records Act 2005, in respect of the functions it would perform under the bill.
We recommend inserting new subclause 8(4) to require the Approved Agency if it took no further action on a complaint to notify the com- plainant of their right to apply to the District Court for an order under this legislation.

This would be consistent with the approach taken by the Human Rights Commission under the Human Rights Act 1993.
We recommend inserting new clause 8A allowing the Approved Agency, subject to the Minister’s approval, to delegate any of its functions or powers to any person or organisation with the appro- priate knowledge, skills, and experience.

Subclause 8A(6) would provide for any action or decision of a delegate to be treated as an action or decision of the Approved Agency.
Subclause 8A(7) would require a delegate to comply with all reasonable requests or require- 4 Harmful Digital Communications Bill Commentary ments of the agency regarding its compliance with the Ombudsmen Act, the Official Information Act, or the Public Records Act.

Docu- ments held by a delegate would therefore have to be accessible to the Approved Agency for the purposes of requests made under the Acts listed.
It is common practice for statutory bodies to use external agencies to assist them, and the amendments would ensure that the Approved Agency could access the expertise necessary to perform its statutory functions.

Threshold for proceedings We consider that threats to cause harm should be included as grounds for making an order, reflecting the likelihood of harm occurring if the threat were to be carried out.

Therefore, we recommend amending clause 11(2)(a) to reflect this.
Varying or discharging an order We recommend inserting new clause 17A to allow the District Court, upon application by one or more parties, to vary the duration or any conditions of an order, or discharge an order.

Penalty levels We recommend adjusting the maximum penalties for the new of- fences of non-compliance with a court order (clause 18), and causing harm by posting a digital communication (clause 19) to make them consistent with the penalties for similar offences in the Harassment Act 1997.
We consider it important that harassment in the physical world and online be dealt with consistently.

Therefore, we recom- mend amending subclause 18(2) to provide for a maximum penalty for an individual of six months’ imprisonment or a $5,000 fine, and $20,000 for a body corporate; and amending subclause 19(3) to in- crease the maximum penalty for an individual to two years’ impris- onment.
In respect of the clause 19 penalty, we are aware that under section 39(1) of the Sentencing Act 2002, where an enactment only allows a sentence of imprisonment the court many sentence an offender to pay a fine instead.

We would like to emphasise that the penalties we Commentary Harmful Digital Communications Bill 5 propose are maximum penalties; a Judge would impose a sentence proportionate to the nature of the offending in each case.
Safe harbour We have considered carefully the submissions on the safe harbour provisions of the bill, and recommend amending clause 20 to provide for a timely “notice-notice-takedown” approach (a regime of notices followed by enforced takedown) suitable for the wide range of online content hosts.

In particular, we consider hours to be the best measure of time in an online environment.
We recommend inserting subclause 20(3) to require an online content host who had received a notice of complaint about specific content to notify the author of the content as soon as practicable but no later than 48 hours.

New subclause 20(3)(a)(ii) would allow the author to respond to the online content host within 48 hours with a counter-notice.

If the au- thor agreed with the complaint or did not respond, the content would have to be removed or public access to it disabled.
If the author re- sponded within 48 hours and did not agree with the complaint, the online content host would have to leave the content in place.

New subclause 20(3)(d)(i) would require an online content host to notify the complainant of the action that had been taken as soon as reason- ably practicable and bring to their attention other remedies.
New provisions would require the complainant and the author to indicate in their notices whether they consented to their identity details being passed to the other person.
While we have struggled to find a perfect solution, we consider this proposal strikes a balance between ensuring the quick removal of harmful or illegal content; ensuring unpopular content which was nevertheless not illegal or harmful was not unilaterally removed; pre- venting frivolous, groundless or trivial complaints; clarifying the li- ability and obligations of online content hosts; and providing a prac- tical and affordable procedure for everyone involved.
Regulations In accordance with advice from the Regulations Review Commit- tee we recommend reversing the order of subclauses 21(1) and (2) so that the standard form of regulation-making power used in legis- 6 Harmful Digital Communications Bill Commentary lation since 1962 is followed.
New subclause 21(a) would provide for the making of regulations concerning the practice and procedure for the conduct of matters before the Approved Agency, and sub- clause 21(b) would provide for the making of regulations regarding any other matters.

Listing the general power after the more specific would have the effect of reducing the scope of the catch-all provision.
Labour Party minority view Labour supports the intent of this bill which is to mitigate the harm caused to individuals by electronic communications and to provide victims of harmful digital communications with a quick and effective means of redress.

This bill creates a precedent, not only in New Zealand, but inter- nationally, for establishing criminal offences which only apply to the digital environment.
For that reason alone it is important to take time and to consider carefully the impact of a stand-alone law which ap- plies to the online environment.

We support the communication principles to guide the court and the Approved Agency in assessing whether a digital communication has caused or is likely to cause someone harm.

We support the inclusion of a safe harbour provision setting out a process for online content hosts to follow to limit their liability for content authored by others.
We believe however that more consult- ation is required to get this provision right.
We remain concerned at the unnecessarily fast passage of this bill through the select committee; the lack of wider views sought when faced with issues of fundamental importance such as the definition of harm; the impact of the new criminal sanctions on young people; the lack of detail about the role of the Approved Agency and how those functions might be delegated to another authority; and the lack of awareness of and representation by younger people on the impact of a new online cyber-abuse law.
Commentary Harmful Digital Communications Bill 7 Appendix Committee process The Harmful Digital Communications Bill was referred to the com- mittee on 3 December 2013.

The closing date for submissions was 21 February 2014.

We received 39 submissions from interested groups and individuals, and heard 13 submissions.

We received advice from the Ministry of Justice.

We also considered a report from the Regulations Review Committee on the regulation-making powers in the bill.
Committee membership Scott Simpson (Chairperson) Paul Foster-Bell Joanne Hayes Raymond Huo Andrew Little Alfred Ngaro Holly Walker Hon Kate Wilkinson Clare Curran was a substitute for this item of business.

David Clendon replaced Holly Walker for this item of business.
Harmful Digital Communications Bill Key to symbols used in reprinted bill As reported from a select committee text inserted unanimously text deleted unanimously Hon Judith Collins Harmful Digital Communications Bill Government Bill Contents 8A 9 10 11 12 Title Commencement Part 1 Approved Agency and enforcement Subpart 1—Purpose, interpretation, the Crown, and communication principles Purpose Interpretation Act binds the Crown Communication principles Communication principles Subpart 2—Enforcement provisions Approved Agency Approved Agency Functions and powers of Approved Agency Power of Approved Agency to delegate Protection for employees of Agency Proceedings may be brought in District Court Who may bring proceedings Threshold for proceedings District Court may refer matter back to Approved Agency 168—2 Page 3 3 3 4 6 Harmful Digital Communications Bill Procedure 17A Applications Mode of hearing and evidence Technical advisers Interim orders Orders that may be made by court Court may vary or discharge order Offences 18 19 Offence of non-compliance with order Causing harm by posting digital communication 20 20A Liability of online content host Liability of online content host for content posted by user Further provisions relating to liability of online content host Regulations and rules 21 22 22A Regulations Rules Consequential amendments to other Acts Part 2 Amendments to other Acts concerning use of digital communications Subpart 1—Crimes Act 1961
 Principal Act Section 179 amended (Aiding and abetting suicide) Subpart 2—Harassment Act 1997 Principal Act Section 3 amended (Meaning of harassment) Section 4 amended (Meaning of specified act) Section 19 amended (Standard conditions of restraining orders) Subpart 3—Human Rights Act 1993 Principal Act Section 61 amended (Racial disharmony) Section 62 amended (Sexual harassment) Section 63 amended (Racial harassment) Subpart 4—Privacy Act 1993 Principal Act Section 6 amended (Information privacy principles) (1) (2) Harmful Digital Communications Bill Part 1 cl 3 35 Section 56 amended (Personal information relating to domestic affairs) Schedule Consequential amendments to other Acts 25 26 The Parliament of New Zealand enacts as follows: Title This Act is the Harmful Digital Communications Act 2013.
10 15 Commencement Sections 19 and 20to 20A, and Part 2 come into force on 5 the day after the date on which this Act receives the Royal assent.

The rest of this Act comes into force on the earlier of— (a) a date appointed by the Governor-General by Order in Council; and 2 years after the date on which this Act receives the Royal assent.

(b) (3) One or more Orders in Council may be made under subsec- tion (2) appointing different dates for different provisions.
Part 1 Approved Agency and enforcement Subpart 1—Purpose, interpretation, the Crown, and communication principles 3 3 Purpose The purpose of this Act is to mitigate harm caused to individu- 20 als by digital communications and to provide victims of harm- ful digital communications with a quick and efficient means of redress.
Purpose The purpose of this Act is to— 25 3 Part 1 cl 4 Harmful Digital Communications Bill (a) (b) deter, prevent, and mitigate harm caused to individuals by digital communications; and provide victims of harmful digital communications with a quick and efficient means of redress.
5 10 Interpretation In this Act, unless the context otherwise requires,— applicant means anyone who makes an application under section 10 application means an application to a District Court under section 13 Approved Agency or Agency means a person or an organisa- tion, organisation, department, or entity appointed as an Ap- proved Agency under section 7 chief executive means the chief executive of the department that is for the time being responsible for the administration of 15 this Act defendant, in relation to an application made to, or an order made by, a court under this Act, means a person against whom an order is sought or made digital communication— (a) means any form of electronic communication; and (b) includes any text message, writing, photograph, picture, recording, or other matter that is communicated elec- tronically 20 25 harm means serious emotional distress individual means a natural person intimate visual recording— (a) means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device with or without the knowledge or con- 30 sent of the individual who is the subject of the record- ing, and that is of— (i) an individual who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and the individual is— (A) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, par- 35 4 4 Harmful Digital Communications Bill Part 1 cl 4 (B) (C) tially exposed, or clad solely in undergar- ments; or engaged in an intimate sexual activity; or engaged in showering, toileting, or other personal bodily activity that dressing or undressing; or involves 5 an individual’s naked or undergarment-clad gen- itals, pubic area, buttocks, or female breasts which is made— (A) from beneath or under an individual’s 10 clothing; or through an individual’s outer clothing in circumstances where it is unreasonable to do so.
(B) (ii) (b) includes an intimate visual recording that is made and 15 transmitted in real time without retention or storage in— (i) (ii) a physical form; or an electronic form from which the recording is capable of being reproduced with or without the 20 aid of any device or thing IPAP has the same meaning as in section 122A(1) of the Copy- right Act 1994 Minister means the Minister of the Crown who, under the au- thority of any warrant or with the authority of the Prime Min- 25 ister, is for the time being responsible for the administration of this Act online content host, in relation to a digital communication, means the person who has control over the part of the elec- tronic retrieval system, such as a website, on which the com- 30 munication is posted and accessible by the user online content host, in relation to a digital communication, means the person who has control over the part of the elec- tronic retrieval system, such as a website or an online applica- tion, on which the communication is posted and accessible by 35 the user 5 Part 1 cl 5 Harmful Digital Communications Bill posts a digital communication— (a) means transfers, sends, posts, publishes, disseminates, or otherwise communicates by means of a digital com- munication— (i) any information, whether truthful or untruthful, 5 about the victim; or an intimate visual recording of another indi- vidual; and (ii) (b) includes an attempt paragraph (a) to do anything referred to in professional leader has the same meaning as in section 120 of the Education Act 1989 registered school has the same meaning as in section 2(1) of the Education Act 1989.
5 Act binds the Crown This Act binds the Crown.

Communication principles 6 (1) Communication principles The communication principles are— Principle 1 A digital communication should not disclose sensitive per- sonal facts about ananother individual.

Principle 2 A digital communication should not be threatening, intimidat- ing, or menacing.

Principle 3 A digital communication should not be grossly offensive to a reasonable person in the complainant’s positionposition of the affected individual.
10 15 20 25 Principle 4 A digital communication should not be indecent or obscene.

30 Principle 5 A digital communication should not be part of a pattern of con- duct that constitutes harassmentused to harass an individual.

6 Harmful Digital Communications Bill Part 1 cl 7 Principle 6 A digital communication should not make a false allegation.

Principle 7 A digital communication should not contain a matter that is published in breach of confidence.
5 Principle 8 A digital communication should not incite or encourage any- one to send a message to a person with the intention of caus- ing harm to that personan individual for the purpose of causing harm to the individual.

10 Principle 9 A digital communication should not incite or encourage an- other personindividual to commit suicide.
Principle 10 A digital communication should not denigrate a personan in- 15 dividual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

In performing functions or exercising powers under this Act, the Approved Agency and courts must— (a) (b) take account of the communication principles; and act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.
20 Subpart 2—Enforcement provisions Approved Agency Approved Agency The Governor-General may, by Order in Council made on the recommendation of the Minister,— (a) any person or organisation: any department: any Crown entity: appoint as the Approved Agency for the purpose of this Act— (i) (ii) (iii) prescribe the functions of the Approved Agency that are in addition to the functions specified in section 8(1) and are related to the purpose of this Act: (b) 25 30 35 7 (2) 7 (1) Part 1 cl 8 Harmful Digital Communications Bill (c) prescribe any reporting requirements and accountability measures that the Approved Agency must comply with.
Before recommending the making of an Order in Council under subsection (1), the Minister must be satisfied that the appointee has the appropriate knowledge, skills, and experi- 5 ence to carry out some or all of the functions of the Approved Agency under this Act.

The Approved Agency holds office for the term specified in the order made under subsection (1).
(2) (3) (4) A person is not to be regarded as being employed in the ser- 10 vice of the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 solely be- cause of his or her appointment as the Approved Agency.

The Approved Agency is subject to the Ombudsmen Act 1975, the Official Information Act 1982, and the Public Records Act 15 2005 in respect of functions it performs under this Act.
(5) Functions and powers of Approved Agency The functions of the Approved Agency are— (a) (b) (c) (b) (c) (d) 20 to receive and assess complaints about harm caused to personsindividuals by digital communications: to use negotiation, mediation, and persuasion (as appro- priate) to resolve complaints: to investigate complaints, unless the Agency considers that— (i) the complaint is trivial, frivolous, or vexatious; 25 or the subject matter or nature of the complaint is unlikely to cause harm to any individual; or investigating the subject matter or nature of the complaint is unlikely to uphold or enhance the 30 communication principles: (ii) (iii) to investigate complaints: to use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints: to establish and maintain relationships with domestic 35 and foreign service providers, online content hosts, and agencies (as appropriate) to achieve the purpose of this Act: 8 (1) 8 Harmful Digital Communications Bill Part 1 cl 8A (e) (f) to provide education and advice on policies for online safety and conduct on the Internet: to perform the other functions conferred on it by or under this Act, including functions prescribed by Order in Council made under section 7.
(2) The Agency may, subject to any other enactment, seek and receive any information that the Agency considers will assist it in the performance of its functions.
(2A) The Agency may refuse to investigate, or cease investigating, any complaint if the Agency considers that— (a) (b) the complaint is trivial, frivolous, or vexatious; or the subject matter or nature of the complaint is unlikely to cause harm to any individual; or the subject matter or nature of the complaint does not contravene the communication principles.
(c) (3) (4) The Agency may decide not to take any further action on a complaint if, in the course of assessing or investigating the complaint, it appears to the Agency that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

If the Agency decides not to take any further action on a com- plaint, it must notify the complainant of the right to apply to the District Court for an order under this Act.
5 10 15 20 (2) 8A Power of Approved Agency to delegate (1) Subject to the approval of the Minister, the Approved Agency 25 may delegate to any person or organisation any of its functions and powers except this power of delegation.

Before delegating any functions or powers, the Approved Agency must be satisfied that the delegate has the appropriate knowledge, skills, and experience to carry out those functions 30 or powers.
(3) A delegation— (a) must be in writing; and (b) is subject to any restrictions and conditions specified by the Approved Agency that it thinks fit, including condi- 35 tions that relate to the Approved Agency’s obligations under section 7(5); and 9 Part 1 cl 9 Harmful Digital Communications Bill (c) (d) is revocable at any time, in writing; and does not prevent the performance or exercise of a func- tion or power by the Approved Agency.
(4) A person or organisation performing or exercising any dele- gated functions or powers may perform and exercise them in 5 the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.

(5) A person or organisation who acts under a delegation given under this section is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
10 (6) Any action or decision of a delegate under the delegation is treated as an action or decision of the Approved Agency under this Act.

(7) A delegate must comply with all reasonable requests or re- quirements of the Approved Agency for the purpose of en- 15 abling the Agency to comply with the Ombudsmen Act 1975, the Official Information Act 1982, and the Public Records Act 2005 in respect of functions to which the delegation applies.
9 (1) (2) Protection for employees of Agency This section applies if the Approved Agency is not a depart- 20 ment or Crown entity.

If this section applies, no civil action lies against any employee of the Agency, or against any employee of a delegate of the Agency, for any act done or omitted by the Agency, or by the delegate, or by him or her, in good faith in the performance 25 or intended performance of the functions, duties, or powers of the Agency.
(3) However, subsection (2) does not prevent a person from fil- ing an application for review under section 4 of the Judicature Amendment Act 1972 in relation to the exercise, refusal to 30 exercise, or proposed or purported exercise by the Approved Agency of a statutory power within the meaning of that Act or otherwise affect the operation of that Act.
10 Harmful Digital Communications Bill Part 1 cl 11 Proceedings may be brought in District Court 10 Who may bring proceedings (1) Any of the following may apply to a District Court for an order under section 16 or 17: (a) an individual (the affected individual) who alleges 5 that he or she has suffered harm as a result of a harmful digital communication: a parent or guardian on behalf of a person described in paragraph (a)the affected individual: the principal of an educational establishment, if a stu- 10 dent of that establishment is a person described in paragraph (a) and the student consents to the princi- pal bringing the proceedings: the professional leader of a registered school or his or her delegate, if the affected individual is a student of 15 that school and consents to the professional leader or delegate bringing the proceedings: the Police, if the digital communication constitutes a threat to the safety of any personan individual.
(b) (c) (c) (d) (2) The chief coroner may apply for an order under section 16 or 20 17(1)(a) or (b) or (2)(a) in respect of a digital communication that contravenes a provision of the Coroners Act 2006.
Threshold for proceedings 11 (1) A person to whomAn applicant referred to in section (2) 10(1)(a), (b), or (c) applies may not apply for an order under 25 section 16 or 17 in respect of a digital communication un- less the Approved Agency has first considered a complaint about the communication and had a reasonable opportunity to consider and decide what action (if any) to take.
In any case, a District Court must not grant an application from 30 a personan applicant referred to in section 10(1)(a) to (c), (b), or (c) for an order under section 16 or 17 unless it is satisfied that— (a) there has been a serious or repeatedserious, repeated, or threatened breach of 1 or more communication prin- 35 ciples; and the breach has caused or is likely to cause harm to a personan individual.
(b) 11 Part 1 cl 12 Harmful Digital Communications Bill (3) (4) 12 (1) (2) The court may, on its own initiative, dismiss an application from a person to whoman applicant referred to in section 10(1)(a), (b), or (c) applies without a hearing if it considers that the application is frivolous or vexatious, or for any other reason does not meet the threshold in subsection (2).
The court may, on its own initiative, dismiss an application under section 10 from the Police if satisfied that, having re- gard to all the circumstances of the case, the application should be dismissed.

5 District Court may refer matter back to Approved Agency 10 This section applies when a District Court considers an appli- cation under section 10 that arises from the subject matter of a complaint that has been considered by the Approved Agency (as required by section 11(1)).
The court— (a) must consider whether an attempt has been made to resolve the complaint (whether through mediation or otherwise); and 15 (b) may adjourn the proceeding and refer the matter back to the Approved Agency unless satisfied that attempts 20 at resolution, or further attempts at resolution, of the matter by the parties and the Agency— (i) will not contribute constructively to resolving the matter; or (ii) will not, in the circumstances, be in the public 25 interest; or (iii) will undermine the proceedings before the court.
Procedure Applications 13 (1) Applications for any orders under section 16 or 17 must— 30 be filed in a District Court; and be in the prescribed form (if any).

(a) (b) The court may give directions as to service and, if the court considers it appropriate to do so in the circumstances, having regard to the principles of natural justice, the court may con- 35 sider an application made on a without notice basis.
(2) 12 Harmful Digital Communications Bill Part 1 cl 15 (3) No filing fee is payable for an application.

14 Mode of hearing and evidence (1) The court must, having regard to the circumstances of the par- ticular case, direct that an application be determined— just on the basis of written material provided to it; or (a) (b) by way of a hearing involving oral submissions.

The court may deal with an application in any manner that it thinks will preserve the anonymity of the applicant, victim, or respondent.
The court must give reasons for any decision it makes in the 10 proceedings and publish its decision.

5 (2) (3) (3A) The decision, including the reasons, must be published.

(4) Subsection (3) isSubsections (3) and (3A) are subject to subsection (2).

The court may receive any evidence or information that may 15 in its opinion assist it to deal effectively with any proceedings under this Act, whether or not the evidence or information would be otherwise admissible in a court of law.
(5) Technical advisers 15 (1) A District Court or the High Court, as the case may be, may 20 appoint a technical adviser to assist it in considering and de- termining an application for an order under section 17 or any appeal under section 72 of the District Courts Act 1947.

The duties of a technical adviser are— to sit with the court; and (a) subject to subsection (3)(4), to act in all respects as an (b) extra member of the court.
(2) 25 (3) (4) (5) The court must appoint a technical adviser if the court is con- sidering an application for an order under section 17(2)(a) or (b) or (2A) or (3)(a).

The Judge may give any weight to the technical adviser’s ad- vice that the Judge thinks fit, and the Judge alone must deter- mine the application or appeal.
The Minister must maintain a panel of persons who may be ap- pointed under this section as technical advisers, and only per- 35 30 13 Part 1 cl 16 Harmful Digital Communications Bill sons named on the panel may be appointed under this section as technical advisers.

The chief executive must pay technical advisers the remuner- ation and allowances determined from time to time by the Min- ister.

5 Interim orders This section applies if a party applies for any orders under section 17.
(6) 16 (1) (2) A District Court may, if the court considers it is desirable to do so, grant any interim orders pending the determination of 10 the application for orders under section 17.

(3) An interim order under this section may do anything that may be done by order under section 17 and expires when the ap- plication under that section is determined.
15 (d) (e) Orders that may be made by court The District Court may, on an application, make 1 or more of the following orders against a defendant: (a) (b) (c) an order to takedowntake down or disable material: an order that the defendant cease the conduct concerned: an order that the defendant not encourage any other 20 persons to engage in similar communications towards the person specified in section 10(1)(a)affected indi- vidual: an order that a correction be published: an order that a right of reply be given to the person 25 specified in section 10(1)(a)affected individual: an order that an apology be published.
(f) The District Court may, on an application, make 1 or more of the following orders against an online content host: (a) an order to take down or disable public access to mater- 30 ial: an order that the identity of the author of an anony- mous or pseudonymous communication be released to the court: an order that a correction be published: (b) (c) 35 17 (1) (2) 14 Harmful Digital Communications Bill Part 1 cl 17 (d) an order that a right of reply be given to the person specified in section 10(1)(a)affected individual.
(3) (2A) The District Court may, on application, make an order against an IPAP that the identity of an anonymous communicator be released to the court.
The court may also do 1 or more of the following: (a) make a direction applying an order provided for in subsection (1) or (2) to other persons specified in the direction, if there is evidence that those others have been encouraged to engage in harmful digital com- 10 munications towards the person specified in section 10(1)(a)affected individual: 5 (b) make a declaration that a communication breaches a (c) communication principle: order that the names of any specified parties be sup- 15 pressed.
(4) In deciding whether or not to make an order, and the form of an order, the court must take into account the following: (a) 20 the content of the communication and the level of harm caused by it: the purpose of the communicator, in particular whether the communication was intended to cause harm: the occasion, context, and subject matter of the commu- nication: the extent to which the communication has spread be- 25 yond the original parties to the communication: the age and vulnerability of the victimaffected indi- vidual: the truth or falsity of the statement: (f) (g) whether the communication is in the public interest: (h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused: the conduct of the victimaffected individual or com- plainant: the technical and operational practicalities, and the 35 costs, of an order: the appropriate individual or other person who should be subject to the order.
30 (b) (c) (d) (e) (i) (j) (k) 15 Part 1 cl 17A Harmful Digital Communications Bill (5) In doing anything under this section, the court must act con- sistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.

17A Court may vary or discharge order (1) Any applicant who obtains an order under section 16 or 17 5 (2) or any other party to that order may apply for an order under subsection (2).
The District Court may, by order, do any of the following things to an order made under section 16 or 17: (a) (b) (c) vary the duration of the order: vary any conditions of the order: discharge the order.

10 Offences Offence of non-compliance with order 18 (1) A person who, without reasonable excuse, fails to comply with 15 an order made under section 16 or 17 commits an offence.
(2) A person who commits an offence against this section is liable on conviction to a fine not exceeding,— (a) in the case of a natural person, imprisonment for a term not exceeding 6 months or a fine not exceeding $5,000: 20 in the case of a body corporate, a fine not exceeding $20,000.
(b) Causing harm by posting digital communication 19 (1) A person commits an offence if— (a) (b) the person posts a digital communication with the in- 25 tention that it cause harm to a victim; and posting the communication would cause harm to an or- dinary reasonable person in the position of the victim; and posting the communication causes harm to the victim.
(c) In determining whether a post would cause harm, the court may take into account any factors it considers relevant, includ- ing— (a) (b) the extremity of the language used: the age and characteristics of the victim: 35 30 (2) 16 Harmful Digital Communications Bill Part 1 cl 19 whether the digital communication was anonymous: (c) (d) whether the digital communication was repeated: (e) (f) (g) the extent of circulation of the digital communication: whether the digital communication is true or false: the context in which the digital communication ap- 5 peared.
(4) (3) A person who commits an offence against this section is li- able on conviction to imprisonment for a term not exceeding 3 months2 years or a fine not exceeding $2,000.
In this section,— intimate visual recording— (a) means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device with or without the knowledge or con- sent of the person who is the subject of the recording, 15 and that is of— (i) 10 a person who is in a place which, in the circum- stances, would reasonably be expected to provide privacy, and that person is— (A) naked or has his or her genitals, pubic area, 20 buttocks, or female breasts exposed, par- tially exposed, or clad solely in undergar- ments; or engaged in an intimate sexual activity; or engaged in showering, toileting, or other 25 personal bodily activity that dressing or undressing; or involves (B) (C) (ii) a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made— (A) from beneath or under a person’s clothing; or through a person’s outer clothing in cir- cumstances where it is unreasonable to do so.
(B) 30 35 (b) includes an intimate visual recording that is made and transmitted in real time without retention or storage in— (i) a physical form; or 17 Part 1 cl 20 Harmful Digital Communications Bill (ii) an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing posts a digital communication— (a) means transfers, sends, posts, publishes, disseminates, 5 or otherwise communicates by means of a digital com- munication any information, whether truthful or un- truthful, about the victim; and includes publishing an intimate visual recording of an- other person; and includes an attempt paragraph (a) or (b) to do anything referred to in 10 (b) (c) victim means the person who is the target of the conduct elicited by the posted digital communication.
In this section, victim means the individual who is the target 15 of a posted digital communication.

Compare: 1961 No 43 s 216G; Michigan Penal Code 1931 S750.411s Liability of online content host for content posted by user This section applies to the liability of an online content host for the content of a digital communication posted by a person 20 and hosted by the online content host.
(4) 20 (1) (2) No civil or criminal proceedings may be brought against the online content host in respect of the content complained of (the specific content) unless— (a) the person who provides the specific content does so on 25 behalf, or at the direction, of the online content host; or the online content host— (i) receives a notice of complaint about the specific content; and does not take reasonable steps as soon as is rea- 30 sonably practicable to remove or disable access to the specific content.
(ii) (b) (3) A notice of complaint must— (a) (b) specify the complainant’s name; and set out the specific content, and explain why the com- 35 plainant considers that— (i) the specific content is unlawful; or 18 Harmful Digital Communications Bill Part 1 cl 20 (ii) the specific content ought to be taken down or ac- cess to it disabled because it is harmful or other- wise objectionable; and sufficiently enable the specific content to be readily lo- cated; and contain any other information that the complainant con- siders relevant.
(c) (d) (4) (5) The Approved Agency may lodge a notice of complaint on behalf of a complainant and provide advice and assistance to the complainant in relation to the complaint.

The protection conferred on an online content host by subsection (2) does not apply if the host does not provide an easily accessible mechanism that enables a user to contact the host about specific content as provided in subsection (3).
(6) Nothing in subsection (2) affects— 5 10 15 (a) (b) (c) (d) section 211 of the Criminal Procedure Act 2011; or section 19 of the Bail Act 2000; or copyright liability, or any proceedings, under the Copy- right Act 1994; or any enactment that expressly overrides subsection (2).
20 Liability of online content host 20 (1) Liability of online content host for content posted by user This section and section 20A apply to the liability of an on- line content host for the content of a digital communication posted by a person and hosted by the online content host.
(2) No civil or criminal proceedings may be brought against the online content host in respect of the content complained of (the specific content) unless— (a) 25 the person who provides the specific content does so on behalf, or at the direction, of the online content host; or 30 the online content host— (i) receives a notice of complaint about the specific content; and does not comply with subsections (3) and (4).
(ii) (b) (3) The requirements of this subsection are that— 35 19 Part 1 cl 20 Harmful Digital Communications Bill (a) (b) (c) (d) Host to notify author of complaint the online content host must, as soon as practicable but no later than 48 hours after receiving a notice of com- plaint,— (i) provide the author of the specific content with a 5 copy of the notice of complaint; and notify the author that the author may submit a counter-notice to the host within 48 hours after receiving that notification: (ii) if the host is unable to contact the author (for example, 10 because the identity of the author is unknown) after tak- ing reasonable steps to do so, the host must take down or disable the specific content as soon as practicable after taking those steps: 15 Author’s counter-notice consenting to removal of content if the author submits a valid counter-notice no later than 48 hours after receiving the host’s notification under paragraph (a), in which the author consents to the re- moval of the specific content, the host must take down 20 or disable the specific content as soon as practicable after receiving that counter-notice: Author’s counter-notice refusing consent to removal of content if the author submits a valid counter-notice no later than 25 48 hours after receiving the host’s notification under paragraph (a), in which the author refuses to consent to the removal of the specific content, the host must leave the specific content in place and, as soon as prac- ticable after receiving that counter-notice,—
 (i) 30 notify the complainant of the author’s decision; and if the author consents, provide the complainant with personal information that identifies the au- thor: (ii) 35 (e) Author failing to submit valid counter-notice if the author does not submit a valid counter-notice in accordance with this subsection (whether by failing 20 Harmful Digital Communications Bill Part 1 cl 20A to submit a counter-notice or by submitting an invalid counter-notice), the host must take down or disable the specific content as soon as practicable but no later than 48 hours after notifying the author under paragraph (a).
(4) A notice of complaint must— (a) (b) (c) (d) (e) state the name and address for service of the com- plainant; and state the specific content, and explain why the com- plainant considers that the specific content— (i) (ii) is unlawful; or breaches 1 or more communication principles and has caused harm; and sufficiently enable the specific content to be readily lo- cated; and state whether the complainant consents to personal in- formation that identifies the complainant being released to the author; and contain any other information that the complainant con- siders relevant.
(5) A counter-notice must state— the name and address for service of the author; and (a) (b) whether the author consents to personal information that identifies the author being released to the com- plainant; and whether the author consents to the removal of the spe- cific content.
(c) (6) The protection conferred on an online content host by this sec- tion does not apply if the host does not provide an easily acces- sible mechanism that enables a user to contact the host about 30 specific content as provided in this section.
20A Further provisions relating to liability of online content (1) host If consent to the release of personal information that identi- fies the party giving the notice is withheld under section 20, 35 the online content host must hold that personal information as confidential information that is not to be released except by 21 Part 1 cl 21 Harmful Digital Communications Bill (2) order of a District Court Judge or High Court Judge made on an application under this subsection.
The Approved Agency may lodge a notice of complaint under section 20 on behalf of a complainant and provide advice and assistance to the complainant in relation to the complaint.

The fact that an online content host does not take advantage of section 20(2) does not of itself create any civil or criminal liability for hosting the specific content.
(4) Nothing in section 20 or this section affects— (3) (a) (b) (c) (d) section 211 of the Criminal Procedure Act 2011; or section 19 of the Bail Act 2000; or copyright liability, or any proceedings, under the Copy- right Act 1994; or any enactment that expressly overrides subsection (2).

5 10 (5) Nothing in section 20 or this section limits the right of an 15 individual to injunctive relief in relation to the content of a digital communication posted by another person and hosted by the online content host.
Regulations and rules 21 (1) Regulations The Governor-General may, by Order in Council, make regu- lations providing for any matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

20 (2) Without limiting the generality of subsection (1), regulations 25 made under that subsection may prescribe the practice and pro- cedure for the conduct of matters under this Act before the Ap- proved Agency.
Regulations The Governor-General may, by Order in Council, make regu- 30 lations for all or any of the following purposes: (a) prescribing the practice and procedure for the conduct of matters under this Act before the Approved Agency: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for 35 giving it full effect.
(b) 21 22 Harmful Digital Communications Bill Part 2 cl 25 22 (1) Rules The power to make rules of court under section 51C of the Judicature Act 1908 and section 122(1) of the District Courts Act 1947 includes the power to make rules regulating the prac- tice and procedure of courts in the exercise of jurisdiction con- 5 ferred by this Act.
(2) Without limiting the generality of subsection (1), rules made in accordance with that subsection may— (a) prescribe forms for applications and orders under this Act: prescribe the practice and procedure for the conduct of matters under this Act before the District Court.

(b) 10 22A Consequential amendments to other Acts Amend the Acts specified in the Schedule as set out in that schedule.
15 Part 2 Amendments to other Acts concerning use of digital communications Subpart 1—Crimes Act 1961 23 24 Principal Act This subpart amends the Crimes Act 1961.

20 Section 179 amended (Aiding and abetting suicide) In section 179, insert as subsections (2) and (3): “(2) A person commits an offence who incites, counsels, or pro- cures another person to commit suicide, if that other person 25 does not commit or attempt to commit suicide in consequence of that conduct.
“(3) A person who commits an offence against subsection (2) is liable on conviction to imprisonment for a term not exceeding 3 years.” 30 Subpart 2—Harassment Act 1997 25 Principal Act This subpart amends the Harassment Act 1997.
23 Part 2 cl 26 Harmful Digital Communications Bill 26 Section 3 amended (Meaning of harassment) After section 3(2), insert: “(3) For the purposes of this Act, a person also harasses another person if— “(a) “(b) he or she engages in a pattern of behaviour that is di- 5 rected against that other person; and that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.
“(4) For the purposes of subsection (3), continuing act includes 10 a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).” 27 (1) Section 4 amended (Meaning of specified act) In section 4(1)(d), after “correspondence,”, insert “electronic communication,”.
15 (2) After section 4(1)(e), insert: “(ea) giving offensive material to a person by placing the ma- terial in any electronic media where it is likely that it 20 will be seen by, or brought to the attention of, that per- son:”.
28 Section 19 amended (Standard conditions of restraining orders) After section 19(1), insert: “(1A) It is a condition of every restraining order that applies to a con- tinuing act within the meaning of section 3 that the respondent must take reasonable steps to prevent the specified act from continuing.” Subpart 3—Human Rights Act 1993 29 Principal Act This subpart amends the Human Rights Act 1993.
25 30 24 30 (1) (2) 31 32 33 34 (1) (2) 35 Harmful Digital Communications Bill Part 2 cl 35 Section 61 amended (Racial disharmony) In section 61(1)(a), after “radio or television” insert “or other electronic communication”.

In section 61(2), after “radio or television” insert “or other electronic communication”.
5 Section 62 amended (Sexual harassment) After section 62(3)(j), insert: “(k) participation in fora for the exchange of ideas and infor- mation.” Section 63 amended (Racial harassment) After section 63(2)(j), insert: “(k) participation in fora for the exchange of ideas and infor- 10 mation.” Subpart 4—Privacy Act 1993 Principal Act This subpart amends the Privacy Act 1993.
Section 6 amended (Information privacy principles) In section 6, Principle 10(a), after “publicly available publi- cation”, insert “and that, in the circumstances of the case, it would not be unfair or unreasonable to use the information”.

In section 6, Principle 11(b), after “publicly available publi- cation”, insert “and that, in the circumstances of the case, it would not be unfair or unreasonable to disclose the informa- tion”.
Section 56 amended (Personal information relating to domestic affairs) In section 56, insert as subsection (2): 15 20 25 “(2) The exemption in subsection (1) ceases to apply once the per- sonal information concerned is collected, disclosed, or used, if that collection, disclosure, or use would be highly offensive 30 to an ordinary reasonable person.” 25 Schedule Harmful Digital Communications Bill Schedule Consequential amendments to other Acts s 22A Ombudsmen Act 1975 (1975 No 9) In Schedule 1, Part 2, insert in its appropriate alphabetical order: “Approved Agency under the Harmful Digital Communications Act 2013, in its role under that Act”.
5 Public Records Act 2005 (2005 No 40) In section 4, definition of public office, after paragraph (c)(x), insert: “(xa) the Approved Agency under the Harmful Digital Communications Act 2013, in its role under that Act; and”.

10 Legislative history 5 November 2013 3 December 2013 Introduction (Bill 168–1) First reading and referral to Justice and Electoral Committee 12 26 Published under the authority of the House of Representatives—2014 Wellington, New Zealand: