Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698750862012.pdf (New Zealand)
Harmful Digital Communications Bill Government Bill Explanatory note General policy statement Introduction This Bill implements the Government’s decisions on addressing harmful digital communications, which were largely based on the Law Commission’s 2012 Ministerial Briefing paper Harmful Digital Communications: The adequacy of the current sanctions and remedies.
Harmful digital communications, cyber-bullying, and digital harass- ment can take many forms, including communicating through emails, texts, blog sites, forums, and social media sites such as Facebook and Twitter.

Modern technology has therefore provided an outlet for a unique form of harassment with its own challenges.
This is due to the— • • ubiquity and ease of access to technology in modern life: ease and speed of dissemination and the potential to go “viral” to a global audience: persistence of the information and difficulty in removing it: facility for anonymity.

• • 168—1 2 Harmful Digital Communications Bill Explanatory note The victims of harmful digital communications are often children and young people, who are particularly vulnerable and require appropri- ate protections.
Purpose and overview of the Bill The purpose of this Bill is to mitigate the harm caused to individuals by digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress.
To achieve that purpose, this Bill— • creates a new civil enforcement regime to quickly and effect- ively deal with harmful digital communications: creates new criminal offences to deal with the most serious harmful digital communications: makes some small amendments to existing legislation to clar- ify their application to digital communications and cover tech- nological advances.
• • Civil enforcement regime The key policy objectives of the new civil enforcement regime are ensuring— • effective and accessible remedies for victims of harmful digital communications: the response is proportionate to the harm: remedies are cost effective and quick.

• • This Bill sets out 10 new communication principles to guide the func- tions of the court and Approved Agency.
For example, Principle 5 states that a digital communication should not be part of a pattern of conduct that constitutes harassment.

The new civil enforcement regime provides for initial complaints about harmful digital communications to be made to an Approved Agency.

The Approved Agency may investigate a complaint and at- tempt to resolve it by negotiation, mediation, and persuasion.
Where the Approved Agency cannot resolve the complaint, an indi- vidual may make an application to the District Court for a number of civil orders, including— • • requiring harmful digital communications to be taken down: requiring the defendant to cease the harmful conduct: Explanatory note Harmful Digital Communications Bill 3 • ordering the identity of the author of an anonymous commu- nication be released.

The court may also make a declaration that a communication breaches a communication principle.
While not a mandatory au- thority, this would have significant persuasive power in relation to website hosts or ISPs operating outside New Zealand jurisdiction.

The court will— • • have jurisdiction over all forms of digital communication: be able to use an expert technical adviser to ensure any rem- edies are technically achievable and appropriate: operate according to rules that will facilitate speedy, cheap, and informal justice.
• Criminal offences In addition to a new offence of failing to comply with an order of the court, this Bill creates 2 further offences to deal with the most serious forms of harmful digital communications: • an offence of posting a harmful digital communication with the intention to cause harm: an offence in the Crimes Act 1961 of inciting a person to com- mit suicide where suicide has not been attempted (this will complement the existing offence in the Crimes Act 1961 which criminalises incitement to commit suicide where it has been at- tempted).
• Safe harbour provisions This Bill also clarifies the law relating to the liability of internet con- tent hosts for content they host but which is posted by third parties.

The purpose of this is to ensure that a content host cannot be held li- able for content they host that is posted by another person, but which the host does not know about.
This Bill contains a safe harbour provision stating that a content host is not liable for content they host, unless the content host has received a notice of complaint about the content, and fails to take reasonable steps to remove it.
4 Harmful Digital Communications Bill Explanatory note The protection provided by the safe harbour does not apply if— • a content host does not provide an easily accessible mechan- ism for users to report such content to them: the provision is inconsistent with the express provisions of an- other enactment relating to the responsibilities of an online content host for content posted by others.
• Departmental disclosure statement The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill.

It provides access to infor- mation about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

A copy of tion.govt.nz/disclosure.aspx?type=bill&subtype=govern- ment&year=2013&no=168&.
the statement can be found at http://legisla- Regulatory impact statement The Ministry of Justice produced a regulatory impact statement on 4 November 2013 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.
A copy of this regulatory impact statement can be found at— • http://www.justice.govt.nz/policy/regulatoryimpactstate- ments http://www.treasury.govt.nz/publications/informationre- leases/ris • Clause by clause analysis This is an omnibus Bill and it is intended that at the Committee of the Whole House stage the Bill will be divided into— • • • • • Clause 1 is the Title clause.

Clause 2 is the commencement clause.


a Bill that contains Part 1: a Crimes Amendment Bill: a Harassment Amendment Bill: a Human Rights Amendment Bill: a Privacy Amendment Bill.
Explanatory note Harmful Digital Communications Bill 5 Part 1 Approved Agency and enforcement Subpart 1—Purpose, interpretation, the Crown, and communication principles Clause 3 states that the purpose of this legislation is to mitigate harm caused to individuals by digital communications and to provide vic- tims of harmful digital communications with a quick and efficient means of redress.

Clause 4 defines terms used in this legislation.


In particular,— • digital communication includes any text message, writing, photograph, picture, or recording: • harm means serious emotional distress.

Clause 5 states that the legislation binds the Crown.

Clause 6 states 10 communication principles.

The principles are numbered, but the numbering does not signify any hierarchy.
The Approved Agency and the courts must take the principles into ac- count when performing functions or exercising powers under this le- gislation.

In addition, the Agency and the courts must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.

Subpart 2—Enforcement provisions Approved Agency Clause 7 provides for the Approved Agency to be appointed by Order in Council on the recommendation of the responsible Minister.
An individual, organisation, department, or Crown entity may be ap- pointed as the Approved Agency.

As well as appointing the Agency, the order may prescribe ancillary functions and prescribe reporting requirements and accountability measures.

Clause 8 states the Approved Agency’s functions and powers.
In particular, the Agency is required to receive and assess complaints about harm caused to persons by digital communications, to investi- gate complaints that meet the threshold set out in this clause, and to resolve complaints through negotiation, mediation, and persuasion.
Ancillary functions may be prescribed by Order in Council under clause 7, and clause 20 enables the Agency to lodge complaints with 6 Harmful Digital Communications Bill Explanatory note • an online content host on behalf of complainants under that provi- sion.
The Agency must investigate a complaint unless— • • 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 investigating the subject matter or nature of the complaint is unlikely to uphold or enhance the communication principles.
Clause 9 provides employees of the Approved Agency with protec- tion against civil proceedings for acts done or omitted in good faith in the performance or intended performance of the functions, duties, or powers of the Agency.

This protection applies if the Agency is not a department or a Crown entity, and does not affect the operation of the judicial review process under the Judicature Amendment Act 1972.
Proceedings may be brought in District Court Clause 10 specifies who may apply to a District Court for an order under clauses 16 or 17.
An applicant may be— • an individual who alleges that he or she has suffered harm as a result of a harmful digital communication: a parent or guardian of the individual concerned: the principal of an educational establishment, if the individual concerned is a student at the establishment (with the consent of the student): the Police (in relation to a threat to the safety of a person): the chief coroner (in relation to a breach of the Coroners Act 2006).
• • • • Clause 11 sets out the threshold for applying for a court order.
There are 2 aspects to this: • first, a party (other than the Police or the Chief Coroner) can- not apply for a court order unless the party has lodged a com- plaint about the communication concerned with the Approved Agency and allowed the Agency a reasonable opportunity to look into the complaint and decide what action to take: secondly, in the case of such a party, the court must be satisfied that— • Explanatory note Harmful Digital Communications Bill 7 (a) (b) there has been a serious or repeated breach of 1 or more communication principles; and the breach has caused or is likely to cause harm to a person.
The clause also provides that the court may, on its own initiative, dismiss an application without a hearing if it considers that the ap- plication is frivolous or vexatious, or for any other reason does not meet the threshold.
Clause 12 enables the District Court to refer a matter back to the Ap- proved Agency unless satisfied that attempts at resolution, or further attempts at resolution, of the matter by the parties and the Agency— • • • will not contribute constructively to resolving the matter; or will not be in the public interest; or will undermine the proceedings before the court.

Procedure Clause 13 relates to applications for a court order under clause 16 or 17.
An application must be filed in a District Court and be in the prescribed form (if any).

The court may give directions about service of an application and, in appropriate circumstances, may consider an application made on a without notice basis.

No filing fee is payable for an application.

Clause 14 relates to the mode of hearing an application.

The court may decide to determine an application on the papers or by way of an oral hearing.
The court may receive evidence or information that would not otherwise be admissible and may deal with an application in any manner that preserves the anonymity of the applicant, victim, or respondent.

The court must give its reasons for a decision and publish the deci- sion.

Clause 15 provides for the appointment of technical advisers to sit with a court.
Technical advisers may be appointed to assist the Dis- trict Court or to assist the High Court when dealing with appeals aris- ing from District Court decisions.

Clause 16 enables the court to make interim orders pending the de- termination of an application.

8 Harmful Digital Communications Bill Explanatory note Clause 17 specifies the kinds of orders that the court may make when it determines an application.
• Offences Clause 18 creates an offence of non-compliance with a court order under clause 16 or 17.

The maximum penalties are a fine not ex- ceeding $5,000 (for an individual) or $20,000 (for a body corporate).

The offence is a strict liability offence that is subject to a defence of reasonable excuse.

Clause 19 creates an offence of causing harm by posting a digital communication.

Subclause (1) sets out the elements of the offence.
The prosecution must prove that— • the offender posted a digital communication with the intention that it would cause harm to a victim; and posting the communication would cause harm to an ordinary reasonable person; and posting the communication has caused harm to the victim.

• Subclause (2) gives examples of factors that the court may take into account in determining whether a post would cause harm.
Subclause (3) provides that a person who commits an offence against this clause is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

Subclause (4) defines terms used in the clause.

The defined terms include intimate visual recording and the definition of that term re- peats with minimal changes the definition of the same term in section 216G of the Crimes Act 1961.
Publishing an intimate visual record- ing of another person constitutes posting a digital communication for the purposes of this clause.

Clause 20 relates to the civil and criminal liability of an online con- tent host for the content of a digital communication posted by another person and hosted by the online content host.
This clause provides a safe harbour for an online content host, pro- vided that— • the communication complained of was not posted on behalf, or at the direction, of the host; and Explanatory note Harmful Digital Communications Bill 9 • the host acts reasonably quickly on any notice of complaint about the offending post that is lodged in accordance with the clause (whether by the complainant or by the Approved Agency on the complainant’s behalf).
The online content host must provide an easily accessible mechanism that enables a user to contact the host to notify the host of a complaint about specific content.
The safe harbour provided by the clause does not affect— • section 211 of the Criminal Procedure Act 2011 (suppression orders); or section 19 of the Bail Act 2000 (restrictions on the publication of matters relating to a hearing); or copyright liability, or any proceedings, under the Copyright Act 1994; or any enactment that expressly overrides this safe harbour.

• • • Regulations Clause 21 provides for regulations to be made for the purposes of the legislation.
Clause 22 provides for rules of court to be made for the purposes of the legislation.

Part 2 Amendments to other Acts concerning use of digital communications This Part contains amendments to 4 different Acts.

It is intended that the individual subparts will be divided from the Bill at the Committee of the Whole House stage and become separate Bills.

Subpart 1—Crimes Act 1961 Clause 23 provides that this subpart amends the Crimes Act 1961.
Clause 24 amends section 179 by adding an offence of aiding and abetting suicide where suicide or attempting to commit suicide does not result.

Currently, the offence in section 179 applies only if the person being incited, counselled, or procured to commit suicide ac- 10 Harmful Digital Communications Bill Explanatory note tually commits or attempts to commit suicide.

The penalty for the new offence is a term of imprisonment not exceeding 3 years.
Subpart 2—Harassment Act 1997 Clause 25 provides that this subpart amends the Harassment Act 1997.

Clause 26 amends section 3 by expanding the meaning of harassment for the purposes of the Act.

Presently, section 3(1) provides that a person harasses another person if— • he or she engages in a pattern of behaviour that is directed 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.
• This clause expands the present definition by including a single con- tinuing act that is carried out over a protracted period.

For example, offensive material may be posted and left on a social media site for several weeks or months.

Clause 27 amends section 4 by including electronic communications in the definition of specified act.
Clause 28 amends section 19 to include as a standard condition of a restraining order a condition that, in the case of a continuing act (as defined in section 3 and amended by clause 26), the respondent must take reasonable steps to prevent the specified act from continuing.

Subpart 3—Human Rights Act 1993 Clause 29 provides that this subpart amends the Human Rights Act 1993.
Clause 30 amends section 61 by including references to the use of electronic communications, so that the section will prohibit broad- casts by means of any electronic communication if the broadcast causes racial disharmony.

Clause 31 amends section 62 by expanding the situations to which the sexual harassment provisions apply, so that the section applies if a person participates in a forum for the exchange of ideas and infor- mation.
Explanatory note Harmful Digital Communications Bill 11 Clause 32 amends section 63 by expanding the situations to which the racial harassment provisions apply, so that the section applies if a person participates in a forum for the exchange of ideas and infor- mation.

Subpart 4—Privacy Act 1993 Clause 33 provides that this subpart amends the Privacy Act 1993.

Clause 34 amends Principles 10 and 11 of the information privacy principles in section 6.
Principle 10(a) is amended to limit the public availability exception to the use of personal information so that it applies only if it would not be unfair or unreasonable to use the information.

Principle 11(b) is amended to limit the public availability exception to the disclosure of personal information so that it applies only if it would not be unfair or unreasonable to disclose the information.
Clause 35 amends section 56 to limit the domestic affairs exception to the information privacy principles so that it will cease to apply once the personal information concerned is collected, disclosed, or used, if that collection, disclosure, or use would be highly offensive to an ordinary reasonable person.
Hon Judith Collins Harmful Digital Communications Bill Government Bill Contents 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 Protection for employees of Agency Proceedings may be brought in District Court 10 11 12 Who may bring proceedings Threshold for proceedings District Court may refer matter back to Approved Agency 168—1 Page 3 3 3 3 4 4 5 6 7 7 8 8 1 Harmful Digital Communications Bill Procedure Applications Mode of hearing and evidence Technical advisers Interim orders Orders that may be made by court Offences Offence of non-compliance with order Causing harm by posting digital communication Liability of online content host for content posted by user Regulations and rules Regulations Rules 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) Section 56 amended (Personal information relating to domestic affairs) Harmful Digital Communications Bill Part 1 cl 4 The Parliament of New Zealand enacts as follows: 1 2 (1) (2) Title This Act is the Harmful Digital Communications Act 2013.
Commencement Sections 19 and 20, and Part 2 come into force on the day 5 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 10 Royal assent.

(b) (3) One or more Orders in Council may be made under subsec- tion (2) appointing different dates for different provisions.
3 4 Part 1 Approved Agency and enforcement Subpart 1—Purpose, interpretation, the Crown, and communication principles 15 Purpose The purpose of this Act is to mitigate harm caused to individu- als by digital communications and to provide victims of harm- 20 ful digital communications with a quick and efficient means of redress.
Interpretation In this Act, unless the context otherwise requires,— application means an application to a District Court under 25 section 13 Approved Agency or Agency means a person or an organisa- tion appointed as an Approved Agency under section 7 chief executive means the chief executive of the department that is for the time being responsible for the administration of 30 this Act digital communication— (a) means any form of electronic communication; and 3 Part 1 cl 5 Harmful Digital Communications Bill (b) includes any text message, writing, photograph, picture, recording, or other matter that is communicated elec- tronically harm means serious emotional distress individual means a natural person Minister means the Minister of the Crown who, under the au- thority of any warrant or with the authority of the Prime Min- ister, is for the time being responsible for the administration of this Act online content host, in relation to a digital communication, 10 means the person who has control over the part of the elec- tronic retrieval system, such as a website, on which the com- munication is posted and accessible by the user.
5 5 Act binds the Crown This Act binds the Crown.

15 Communication principles 6 (1) Communication principles The communication principles are— Principle 1 A digital communication should not disclose sensitive per- 20 sonal facts about an 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 position.
25 Principle 4 A digital communication should not be indecent or obscene.

Principle 5 A digital communication should not be part of a pattern of conduct that constitutes harassment.

30 Principle 6 A digital communication should not make a false allegation.

4 Harmful Digital Communications Bill Part 1 cl 7 Principle 7 A digital communication should not contain a matter that is published in breach of confidence.
Principle 8 A digital communication should not incite or encourage any- 5 one to send a message to a person with the intention of causing harm to that person.

Principle 9 A digital communication should not incite or encourage an- other person to commit suicide.

10 Principle 10 A digital communication should not denigrate a person by rea- son of his or her colour, race, ethnic or national origins, reli- gion, gender, sexual orientation, or disability.
In performing functions or exercising powers under this Act, 15 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.
Subpart 2—Enforcement provisions Approved Agency 20 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 25 Act— (i) (ii) (iii) prescribe the functions of the Approved Agency that are 30 in addition to the functions specified in section 8(1) and are related to the purpose of this Act: prescribe any reporting requirements and accountability measures that the Approved Agency must comply with.
Before recommending the making of an Order in Council 35 under subsection (1), the Minister must be satisfied that (b) (c) 5 (2) 7 (1) (2) 5 10 15 Part 1 cl 8 Harmful Digital Communications Bill the appointee has the appropriate knowledge, skills, and experience to carry out 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).
(3) (4) A person is not to be regarded as being employed in the ser- 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.
Functions and powers of Approved Agency The functions of the Approved Agency are— (a) (b) (c) (d) (e) (f) to receive and assess complaints about harm caused to persons 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; or the subject matter or nature of the complaint is 20 unlikely to cause harm to any individual; or investigating the subject matter or nature of the complaint is unlikely to uphold or enhance the communication principles: (ii) (iii) to establish and maintain relationships with domestic 25 and foreign service providers, online content hosts, and agencies (as appropriate) to achieve the purpose of this Act: 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.
30 The Agency may seek and receive any information that the Agency considers will assist it in the performance of its func- 35 tions.

The Agency may decide not to take any further action on a complaint if, in the course of assessing or investigating the 8 (1) (2) (3) 6 Harmful Digital Communications Bill Part 1 cl 10 complaint, it appears to the Agency that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
9 (1) (2) Protection for employees of Agency This section applies if the Approved Agency is not a depart- 5 ment or Crown entity.

If this section applies, no civil action lies against any employee of the Agency for any act done or omitted by the Agency, or by him or her, in good faith in the performance or intended performance of the functions, duties, or powers of the Agency.
10 (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 exercise, or proposed or purported exercise by the Approved Agency of a statutory power within the meaning of that Act or 15 otherwise affect the operation of that Act.
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 who alleges 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 principal of an educational establishment, student of that establishment is a person described in paragraph (a) and the student consents to the principal bringing the proceedings: the Police, if the digital communication constitutes a threat to the safety of any person.
if a 25 20 30 (b) (c) (d) (2) The chief coroner may apply for an order under section 16 or 17(1)(a) or (b) in respect of a digital communication that contravenes a provision of the Coroners Act 2006.
7 Part 1 cl 11 Harmful Digital Communications Bill Threshold for proceedings 11 (1) A person to whom section 10(1)(a), (b), or (c) applies may not apply for an order under section 16 or 17 in respect of a digital communication unless the Approved Agency has first considered a complaint about the communication and had a 5 reasonable opportunity to consider and decide what action (if any) to take.
In any case, a District Court must not grant an application from a person referred to in section 10(1)(a) to (c) for an order under section 16 or 17 unless it is satisfied that— (a) (2) there has been a serious or repeated breach of 1 or more communication principles; and the breach has caused or is likely to cause harm to a person.
(b) 10 The court may, on its own initiative, dismiss an application 15 from a person to whom 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 thresh- old in subsection (2).
District Court may refer matter back to Approved Agency 20 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 25 (b) may adjourn the proceeding and refer the matter back to the Approved Agency unless satisfied that attempts 30 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 35 interest; or (iii) will undermine the proceedings before the court.
(3) 12 (1) (2) 8 Harmful Digital Communications Bill Part 1 cl 15 Procedure Applications 13 (1) Applications for any orders under section 16 or 17 must— (2) 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- sider an application made on a without notice basis.
(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 proceedings and publish its decision.

Subsection (3) is subject to subsection (2).

The court may receive any evidence or information that may 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.
(2) (3) (4) (5) Technical advisers 15 (1) A District Court or the High Court, as the case may be, may 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), to act in all respects as an (b) extra member of the court.
(2) 9 Part 1 cl 16 Harmful Digital Communications Bill (3) (4) (5) (6) 16 (1) 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 (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- 5 mine the application or appeal.
The Minister must maintain a panel of persons who may be appointed under this section as technical advisers, and only persons named on the panel may be appointed under this sec- tion as technical advisers.

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

10 Interim orders This section applies if a party applies for any orders under 15 section 17.
(2) A District Court may, if the court considers it is desirable to do so, grant any interim orders pending the determination of the application for orders under section 17.

(3) An interim order under this section may do anything that may 20 be done by order under section 17 and expires when the ap- plication under that section is determined.
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 takedown material: an order that the defendant cease the conduct concerned: an order that the defendant not encourage any other per- sons to engage in similar communications towards the person specified in section 10(1)(a): an order that a correction be published: an order that a right of reply be given to the person specified in section 10(1)(a): an order that an apology be published.
(d) (e) (f) The District Court may, on an application, make 1 or more of 35 the following orders against an online content host: 25 30 17 (1) (2) 10 Harmful Digital Communications Bill Part 1 cl 17 (a) (b) (c) (d) an order to take down or disable public access to mater- ial: an order that the identity of the author of an anonymous communication be released: an order that a correction be published: an order that a right of reply be given to the person specified in section 10(1)(a).
5 (3) The court may also do 1 or more of the following: (a) make a direction applying an order provided for in sub- section (1) or (2) to other persons specified in the di- 10 rection, if there is evidence that those others have been encouraged to engage in harmful digital communica- tions towards the person specified in section 10(1)(a): (b) make a declaration that a communication breaches a (c) communication principle: order that the names of any specified parties be sup- pressed.
15 (4) (b) (c) (d) In deciding whether or not to make an order, and the form of an order, the court must take into account the following: (a) the content of the communication and the level of harm 20 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- yond the original parties to the communication: the age and vulnerability of the victim: the truth or falsity of the statement: (e) (f) (g) whether the communication is in the public interest: (h) 25 the conduct of the defendant, including any attempt by the defendant to minimise the harm caused: the conduct of the victim or complainant: the technical and operational practicalities, and the costs, of an order.
30 35 (i) (j) (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.

11 Part 1 cl 18 Harmful Digital Communications Bill Offences Offence of non-compliance with order 18 (1) A person who, without reasonable excuse, fails to comply with an order made under section 16 or 17 commits an offence.
(2) A person who commits an offence against this section is liable 5 on conviction to a fine not exceeding,— (a) (b) in the case of a natural person, $5,000: in the case of a body corporate, $20,000.
Causing harm by posting digital communication 19 (1) A person commits an offence if— (2) (a) (b) the person posts a digital communication with the in- 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 (c) posting the communication causes harm to the victim.
In determining whether a post would cause harm, the court may take into account any factors it considers relevant, includ- ing— (a) (b) (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- peared.
the extremity of the language used: the age and characteristics of the victim: whether the digital communication was anonymous: 10 15 20 25 (4) (3) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months 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- 35 sent of the person who is the subject of the recording, and that is of— 30 12 Harmful Digital Communications Bill Part 1 cl 19 (i) (ii) 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, buttocks, or female breasts exposed, par- 5 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 10 (B) (C) 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; 15 or through a person’s outer clothing in cir- cumstances where it is unreasonable to do so.
(B) (b) includes an intimate visual recording that is made and 20 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 25 aid of any device or thing posts a digital communication— (a) means transfers, sends, posts, publishes, disseminates, or otherwise communicates by means of a digital com- munication any information, whether truthful or un- 30 truthful, about the victim; and includes publishing an intimate visual recording of an- other person; and includes an attempt to do anything referred to in para- graph (a) or (b) (b) (c) 35 victim means the person who is the target of the conduct elicited by the posted digital communication.
Compare: 1961 No 43 s 216G; Michigan Penal Code 1931 S750.411s 13 Part 1 cl 20 Harmful Digital Communications Bill 20 (1) 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 and hosted by the online content host.
(2) No civil or criminal proceedings may be brought against the 5 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 behalf, or at the direction, of the online content host; or the online content host— (i) (b) receives a notice of complaint about the specific content; and does not take reasonable steps as soon as is rea- sonably practicable to remove or disable access to the specific content.
(ii) (3) A notice of complaint must— (a) (b) (c) (d) specify the complainant’s name; and set out the specific content, and explain why the com- plainant considers that— (i) (ii) the specific content is unlawful; or 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.
(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 subsec- tion (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— (a) (b) (c) 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 14 10 15 20 25 30 35 Harmful Digital Communications Bill Part 2 cl 24 (d) any enactment that expressly overrides subsection (2).
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, 5 necessary for its administration, or necessary for giving it full effect.

(2) Without limiting the generality of subsection (1), regulations made under that subsection may prescribe the practice and pro- cedure for the conduct of matters under this Act before the Ap- 10 proved Agency.
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- 15 tice and procedure of courts in the exercise of jurisdiction con- 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 20 Act: prescribe the practice and procedure for the conduct of matters under this Act before the District Court.

(b) Part 2 Amendments to other Acts concerning use of digital communications Subpart 1—Crimes Act 1961 Principal Act This subpart amends the Crimes Act 1961.
Section 179 amended (Aiding and abetting suicide) In section 179, insert as subsections (2) and (3): 23 24 “(2) A person commits an offence who incites, counsels, or pro- cures another person to commit suicide, if that other person 25 30 15 Part 2 cl 25 Harmful Digital Communications Bill 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.” 5 25 26 Subpart 2—Harassment Act 1997 Principal Act This subpart amends the Harassment Act 1997.
Section 3 amended (Meaning of harassment) After section 3(2), insert: 10 “(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- rected against that other person; and that pattern of behaviour includes doing any specified 15 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 a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive 20 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,”.
(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 will be seen by, or brought to the attention of, that per- son:”.
25 30 Section 19 amended (Standard conditions of restraining orders) After section 19(1), insert: 28 16 Harmful Digital Communications Bill Part 2 cl 34 “(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.” 29 30 (1) (2) 31 32 33 34 (1) (2) Subpart 3—Human Rights Act 1993 5 Principal Act This subpart amends the Human Rights Act 1993.
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”.
10 Section 62 amended (Sexual harassment) After section 62(3)(j), insert: “(k) participation in fora for the exchange of ideas and infor- 15 mation.” Section 63 amended (Racial harassment) After section 63(2)(j), insert: “(k) participation in fora for the exchange of ideas and infor- mation.” 20 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- 25 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- 30 tion”.
17 Part 2 cl 35 Harmful Digital Communications Bill 35 Section 56 amended (Personal information relating to domestic affairs) In section 56, insert as subsection (2): “(2) The exemption in subsection (1) ceases to apply once the per- sonal information concerned is collected, disclosed, or used, 5 if that collection, disclosure, or use would be highly offensive to an ordinary reasonable person.” 12 18 Wellington, New Zealand: Published under the authority of the New Zealand Government—2013