There are differences between what constitutes a defamatory statement and harmful communication. However, in many cases a communication/statement will fall within both definitions and the victim will have an option as to which head they wish to a claim under.
In order to apply for civil enforcement under the HDCA, there must be a serious, threatened or repeated breach of any one of the HDCA principles via digital communication. That breach must also have caused, or be likely to cause, harm to an individual.
Harm is defined as serious emotional distress. Digital communication is defined as any form of electronic communication and includes text messages, writing, photographs, recordings, posts on social media or any other matter communicated electronically. Of these two elements, the existence of a digital communication is unlikely to be disputed. The existence of harm, however, may require some judicial interpretation.
The HDCA intends to promote fast and cost effective resolution of issues arising out of harmful digital communications. It does so via an established Approved Agency through which all civil actions must first proceed before the matter proceeds through the District Courts. The Approved Agency investigates complaints, determines whether the communication is actionable under the HDCA, and provides negotiation and mediation services to assist resolution. If resolution cannot be achieved, the matter is then referred to the District Court.
The disadvantage of proceeding under the HDCA is no ability to claim damages and/or financial losses resulting out of harmful communications. The advantage is that claims will be dealt with and resolved quickly. For this reason, if an applicant requires a harmful digital communication be removed as soon as possible to stop further negative effects on his or her reputation, the HDCA should provide that remedy in a timely manner.
A further advantage for applicants under the HDCA is that the defences of truth and honest opinion are not available, making it easier to obtain an order for removal of the communication. The Court may take truth into account as a factor before it makes any orders under the HDCA. Truth, however, is not an absolute defence as it is in defamation proceedings. The lack of these defences could potentially result in an imbalance between the applicant’s rights and the communicator’s right to freedom of speech. This is addressed because the Approved Authority and/or District Court are required to take the New Zealand Bill of Rights Act 1990 into account and balance the respective rights of the parties.
By Chris Patterson