The Harmful Digital Communications Act Understood
No Need for a New Regulatory Framework
Once again Andrea Vance misunderstands the scope of the Harmful Digital Communications Act. In my article “The Vicious Face of Mainstream Media” Ms. Vance and her co-author Charlie Mitchell missed some important aspects of the HDCA and the take down regime that the Act put in place.
I repeat the passage and then go on to discuss Ms. Vance’s latest misunderstanding of the legislation. I said:
“The suggestion is that a person who is claiming relief under the HDCA and who seeks a takedown order must prove the allegations are false.
That is patently wrong. A person seeking a take down order (for example) must prove that the digital communication breached a communications principle and must also prove that the digital communication caused harm (which is defined as serious emotional distress).
There are 10 communications principles. One of them is that a digital communication should not make a false allegation. But that is one of a number of other principles such as the disclosure of sensitive personal facts or that a digital communication should not be grossly offensive to a reasonable person in the position of the affected individual or should not be indecent or obscene. There are others.
But the truth or otherwise of the allegation is not determinative. Section 19(5) HDCA sets out eleven matters that the Court musty take into account. One of these matters is the truth or falsity of the allegation.
And the fact that seems to have eluded the authors of the article is that even if the allegation is true, it can still qualify for consideration for an order under the HDCA. Other issues such as the intention of the communicator, the content of the communication, the level of likely harm, the age and vulnerability of the affected individual are some of the matters that can be taken into account.
Why isn’t truth a defence? Because the truth can hurt. Remember that one of the communications principles relates to the disclosure of sensitive personal information. That information may be true. But its disclosure is still a breach of a communications principles.”
In an article dates 20 April 2025 under the headline “MPs are not powerless to stop the online abuse they complain about” Ms. Vance ventures an opinion on the effectiveness of the HDCA leading to the inevitable suggestion that the online platforms should be responsible for the hurtful and harmful content that they publish, and should be regulated. Ms. Vance raises the spectre of the Safer Online Services and Web Platforms proposals of the Department of Internal Affairs which project was discarded by the present Government. But as I have suggested elsewhere, its spirit lives on, ready to be revived like Frankenstein’s monster.
The problem seems to lie in the volume of what Ms Vance describes as “unrelenting abuse”. To be fair, Ms. Vance is not the only commentator to raise this issue.
Canterbury Law Lecturer Cassandra Mudgway in an opinion piece in the Herald dated 14 April 2025 headlined “Damning study of online abuse of female MPs shows urgent legal reform is needed” stated
“Under the Harmful Digital Communications Act 2015, victims of online harassment can ask the court for protection from the person harassing them, which can include orders to stop all contact. But once again, police need to be able to identify the perpetrator.
And that is the sticking point. Online abuse is usually committed anonymously and often by perpetrators using a VPN service that encrypts internet traffic and protects their online identity.
Also, the Harmful Digital Communications Act was not drafted to deal with volumetric harassment – a co-ordinated effort designed to overwhelm and intimidate a target through a deluge of online interactions.
These campaigns typically involve a large number of participants who collectively flood someone with abusive, threatening or harmful messages. Reporting and attempting to take action on every single message or comment is simply not practical.”
Like Ms. Vance, Ms. Mudgway suggests reviving the Department of Internal Affairs proposals.
But both commentators are swift to consider the HDCA as ineffective and no longer fit for purpose ten years after its enactment.
I suggest that the remedies provided by the civil enforcement regime of the Act can go a long way (but not all the way) to dealing with the problems of online harassment alleged.
First it should be noted that to qualify an online communication must cause harm (serious emotional distress) and breach one or more of the communications principles set out in the Act. Annoyance and frustration are not enough. “I’m offended” is not enough.
Secondly the provisions of section 19 HDCA contemplate three potential targets for orders – the person posting the material, the online content host which hosts the material and an internet service provider who makes an internet connection available to users.
As to an individual a Court may make the following orders:
(a) an order to take down or disable material:
(b) an order that the defendant cease or refrain from the conduct concerned:
(c) an order that the defendant not encourage any other persons to engage in similar communications towards the affected individual:
(d) an order that a correction be published:
(e) an order that a right of reply be given to the affected individual:
(f) an order that an apology be published.
I concede that for an “on-line pile on” these remedies may not be immediately available given that there may be a number of authors posting content. But remedies there are.
It is here that the remedies against an online content host can be considered. Section 19(2) HDCA provides that the District Court may make one or more of the following orders against an online content host:
(a) an order to take down or disable public access to material that has been posted or sent:
(b) an order that the identity of the author of an anonymous or pseudonymous communication be released to the court:
(c) an order that a correction be published in any manner that the court specifies in the order:
(d) an order that a right of reply be given to the affected individual in any manner that the court specifies in the order.
One of the complaints frequently advanced relates to the supposed anonymity of posters. This can be resolved by requiring a service provider (known in the HDCA as an IPAP) to release the identity of an anonymous communicator to the Court. This will reveal the identity of the anonymous John Doe thus bringing the remedies under section 19(1) and (2) [set out above] into play.
It seems to me that many commentators are seeking a quick fix which should be provided by the Government. The Government did that in 2015 with the HDCA. There is no need to revive the Safer Online Services proposal which is a censorship regime.
Rather, individuals have the power to make their enquiry of Netsafe – the Approved Agency under the HDCA – and if Netsafe is unable to resolve the matter then an application to the Court is in order.
One doesn’t need a lawyer. The application papers are available online and there is no filing fee. The application would probably be against an Online Content Host which could mitigate the volumetric problem as well as, if anonymity is an issue, an application for disclosure of the identity or identities of the content authors.
There is no need, as Ms Mudgway suggests, for a new regulatory framework. Ms Vance infers that the Government is wanting because it scrapped proposals to establish standards for online content and penalties for breaches.
Perhaps if she read and understood the HDCA a little more thoroughly she would be aware of existing standards for online content and penalties for breaches. They are all in the HDCA.
I haven't read Andrea Vance's article, due to the paywall, so I can't really comment on it.
However, as someone who has acted and appeared for people under the civil regime, going back to the very first hearing under the civil regime, the current process is not fit for purpose. Yes, it provides the tools to get a partially outcome. However, the process to obtain that outcome can be long, arduous, and often expensive. The outcome itself is relatively toothless. It provides applicants with a choice of spending a lot of money to have posts removed that, by the time they are removed after several sets of orders, will have already caused the maximum level of harm. Removal at that point is practically pointless and a hollow victory. The process itself can continue the harm.
Of course, many of these posts are made with the intent to cause harm. Assuming serious emotional distress is suffered, it should then become a criminal matter. Yet, many police continue to take the view that harm created online is not real. At least the 2022 amendment forced more action when it came to intimate visual material, though the failings of that amendment are another issue.
There is certainly no reason for anyone to post messages of the type being discussed, as there is never any need for personal attacks. If they don't cause harm, as defined, then the legislation allows it as a support to freedom of expression. If they do cause harm, and that was the intent, it needs to be handled under the criminal regime. For someone getting abuse from multiple people, many anonymous, the civil regime does not provide a realistic solution.
The line about falsehood needing to be proved might come from some imprecision of language on my part? Was comparing the use of the HDCA and defamation law in a particular context, but obviously the HDCA, when used for something like a privacy claim, it being true won't remove liability.