In June 2014, Parliament’s Justice and Electoral Select Committee reported back to Parliament on the Harmful Digital Communications Bill introduced last year and recommended amendments to toughen up the legislation.
The recommendations included a higher maximum penalty for the new offence of “causing harm by posting a digital communication” to be raised from three months in jail, or a $2000 fine, to two years in jail. This would bring the sentence in line with other harassment offences.
“…we recommend 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 increase the maximum penalty for an individual to two years’ imprisonment…. We would like to emphasise that the penalties we propose are maximum penalties; a Judge would impose a sentence proportionate to the nature of the offending in each case.” (Committee Report – Commentary on proposed amendments to the Bill)
University of Canterbury law professor Ursula Cheer said individuals targeted online could pursue civil action on the grounds of defamation.
The Report stated in its 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 criminal offences to deal with the most seriously harmfuldigital communications, and would make small amendments to legislation to clarify its application to digital communications and to cover potential technological advances.
Complaints about harmful digital communications would be submitted 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 persuasion 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 digitalcommunication 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 Commission’s 2012 ministerial briefing paper Harmful Digital Communications: The adequacy of the current sanctions and remedies.