Harmful Digital Communications Act NZ: Getting Online Harm Removed

The Harmful Digital Communications Act 2015 is New Zealand's main law against serious online harassment, cyberbullying, and other harmful digital communications, and it gives victims a faster route to get harmful content removed than defamation or harassment law alone.

This is general information about New Zealand law, not legal advice. For your own situation, consult a lawyer or your local Community Law centre. If a communication threatens your safety, contact Police on 111.

What the Act covers

The Harmful Digital Communications Act 2015 targets serious harm caused through digital communications, meaning anything sent or posted by electronic means, including text messages, emails, social media posts, and content on apps or websites. It was created to give people who experience cyberbullying, online harassment, or the non-consensual sharing of intimate images a quicker, less formal way to get harmful material removed than going straight to court on defamation or harassment grounds.

The Act only applies where a communication breaches one or more of its 10 communication principles and causes, or is likely to cause, serious emotional distress to an identifiable individual. It is not a general complaints process for content someone simply dislikes or disagrees with.

The 10 communication principles

A digital communication should not do any of the following to a person: disclose sensitive personal facts about them; be threatening, intimidating, or menacing; be grossly offensive to a reasonable person in their position; be indecent or obscene; be used to harass them; make a false allegation; breach confidence; incite or encourage someone to send a message intended to cause harm; incite or encourage a person to commit suicide; or denigrate them by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

A complaint or application under the Act needs to show a serious, threatened, or repeated breach of one or more of these principles, not just an isolated breach of a lesser kind.

Netsafe: your first step

Netsafe is the independent, government-approved agency under the Act. For almost all complaints, you need to contact Netsafe first and let it try to help resolve the matter, for example by helping negotiate the removal of content or connecting you with the person or platform responsible, before you can apply to the District Court. Netsafe can also refer a matter on if it is unable to resolve it.

The main exception is where Police apply to the District Court directly because a communication threatens someone's safety. A parent or guardian can also apply on behalf of a child, and school principals can apply in some circumstances with the affected student's consent.

Applying to the District Court

If Netsafe's process does not resolve the problem, you can apply to the District Court for a Harmful Digital Communications order. The threshold is a serious breach, a threatened serious breach, or a repeated breach of the communication principles, and the court weighs the harm against the right to freedom of expression before making an order.

What the District Court can order

The District Court has a range of powers under the Act. It can order that material be taken down, order the person responsible to stop the conduct, order a correction, apology, or right of reply to be published, order the identity of an anonymous poster to be disclosed, and make an order suppressing the identity of anyone involved. For an intimate visual recording, the court can order it to be taken down from wherever it has been posted, and that any copy held by the offender be impounded and destroyed within 10 working days.

Disobeying a court order made under the Act is a separate criminal offence, carrying up to 6 months' imprisonment or a fine of up to $5,000 for an individual.

The criminal offence for causing harm online

Separately from the civil orders above, it is a criminal offence under the Act to post a digital communication with the intention of causing a victim serious emotional distress, where posting it would cause harm to an ordinary reasonable person in the victim's position and it does in fact cause the victim harm. On conviction, an individual can be sentenced to up to 2 years' imprisonment or fined up to $50,000. This offence is prosecuted through the ordinary criminal courts, separately from a Netsafe complaint or a civil District Court application.

Non-consensual intimate recordings

The Act specifically covers the posting of an intimate visual recording of a person without their consent, sometimes called image-based abuse. Both the civil order process, including takedown of the content, and the criminal offence can apply to this kind of harm, and it can also overlap with recording offences under the Crimes Act 1961.

How this fits with defamation and other law

The Harmful Digital Communications Act operates alongside New Zealand's other civil laws, not instead of them. A false and damaging allegation posted online, for example, could potentially be pursued as a breach of communication principle 6 under this Act, as defamation under the Defamation Act 1992, or in some cases as harassment under separate legislation, depending on the facts and what the person wants to achieve. The Act's process is generally faster and less costly than a defamation claim, but it does not carry the same damages remedy.

For how the law treats recording a conversation or communication more broadly in New Zealand, see New Zealand recording laws. Family violence can also include harmful digital communications between people in a relationship; where that is happening, see protection orders for a separate legal option. For the wider picture, see the online safety guide.

Frequently Asked Questions

Do I have to contact Netsafe before I can go to court?

In almost all cases, yes. Netsafe is the government-approved agency under the Act and must have a chance to try to resolve your complaint before you can apply to the District Court. The main exception is where Police apply directly because a communication threatens someone's safety.

What can the District Court order under the Harmful Digital Communications Act?

The court can order content to be taken down, order the person responsible to stop the conduct, order a correction, apology, or right of reply, order an anonymous poster's identity to be disclosed, and suppress identities. For intimate visual recordings it can order the material be taken down and destroyed.

What is the penalty for posting a harmful digital communication?

Posting a digital communication intended to cause a victim serious emotional distress, and that does cause harm, is a criminal offence. On conviction, an individual can face up to 2 years' imprisonment or a fine of up to $50,000, separate from any civil order the District Court makes.

Does the Act cover having an intimate photo or video posted without consent?

Yes. Posting an intimate visual recording of someone without their consent is covered by the Act. The District Court can order the recording taken down and destroyed, and posting it can also be prosecuted as a criminal offence.

Does the Harmful Digital Communications Act replace defamation law?

No. It operates alongside defamation and harassment law rather than replacing them. Depending on the facts, the same harmful post could potentially be addressed under this Act, under the Defamation Act 1992, or under both.