Contents

Chapter 6
Abusive allegations and false accusations against judges and courts

Other remedies

6.38When considering the future of the contempt of scandalising the court, it is important to take into account other remedies that are available for the Police to prosecute, and for judges to pursue, in the same way as anyone else. These other remedies include a range of criminal offences and civil actions. It is also relevant to note in this context the existence of the Ministry of Justice National Security Operations Section which has responsibility for judicial security. Judges are able to refer all types of attack, including online abuse, to the Section for investigation and, if necessary, further action.

6.39Serious attacks or threats of attacks against judges may constitute criminal offences under the Crimes Act 1961:

6.40Less serious conduct may constitute criminal offences under the following legislation:

6.41Civil remedies available to judges who are the subject of attacks, threats, abusive allegations or false accusations include:

6.42The Harmful Digital Communications Act was enacted following the Law Commission’s review of “Regulatory Gaps and the New Media”.525 The purpose of the Act is to:526

(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and

(b) provide victims of harmful digital communications with a quick and efficient means of redress.

Under the Act digital communication is defined as “any form of electronic communication [including] any text message, writing, photograph, picture, recording, or other matter that is communicated electronically”.527
6.43The Act creates a new civil enforcement regime that enables specified persons to make initial complaints528 about harmful digital communications to the Approved Agency.529 The Approved Agency may then investigate the complaint and attempt to resolve it using advice, negotiation, mediation and persuasion as appropriate.530 A specified person may apply to the District Court for a number of civil orders, but only once a complaint has been made and the Approved Agency has had a reasonable opportunity to assess it and determine a course of action.531 Where a communication constitutes a threat to the safety of an individual, the Police may apply directly to the court without having to first make a complaint to the Approved Agency. These orders may include those requiring harmful digital communications to be taken down and requiring the defendant to cease the harmful conduct.532 It is also a criminal offence under the new Act for a person to post a digital communication with the intention that it causes harm533 or to fail to comply with an order made under the Act.534
6.44In the Act’s first year, there have been 132 charges filed and 50 convictions.535 It appears many of the prosecutions have related to harmful communications after the breakdown of intimate relationships.536
525Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, 2012); Law Commission The News Media Meets ‘New Media’: Rights and Responsibilities in the Digital Age (NZLC R128, 2013). See also New Zealand Law Society “IT & Online Law Conference” May 2015, New Zealand Law Society Webinar “Cyber Bullying” September 2015, New Zealand Law Society “Cyber Law Conference” (May 2016), New Zealand Law Society Seminar “Media Law” (February 2017).
526Harmful Digital Communications Act 2015, s 3.
527Harmful Digital Communications Act 2015, s 4.
528Harmful Digital Communications Act 2015, s 11.
529Section 7 of the new Act came into force on 20 May 2016: Harmful Digital Communications Act Commencement Order 2016. Netsafe was appointed as the Approved Agency in November 2016. It has already received over 600 requests for assistance: Hon Amy Adams, Minister of Justice “Cyberbullying law holding offenders to account” (press release, 5 April 2017).
530Harmful Digital Communications Act 2015, s 8(1)(c). The use of “as appropriate” in this section suggests that the Agency has discretion to use all, some or none of the listed techniques, depending on the circumstances. This is consistent with the advice of the Approved Agency, Netsafe, which says that the Agency will never contact the person harassing the complainant without first obtaining the complainant’s consent: Netsafe “Get Help With Online Bullying, Abuse and Harassment” (22 February 2017) <www.netsafe.org.nz/hdc>.
531Harmful Digital Communications Act 2015, s 12(1).
532Harmful Digital Communications Act 2015, ss 11, 12 and 19.
533Harmful Digital Communications Act 2015, s 22.
534Harmful Digital Communications Act 2015, s 21.
535Hon Amy Adams, Minister of Justice, above n 529.
536Judge David Harvey “Prosecutions under the HDC Act” (2016) 29 Law News 8. See also R v Iyer [2016] NZDC 23957, reversed on appeal: New Zealand Police v B [2017] NZHC 526.