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Harmful digital communications

05 April 2019 - By Taryn Gudmanz

The Harmful Digital Communications Act 2015 (HDCA) was intended, among other things, to protect minors from the harm arising from cyberbullying. However, gaps in the process may expose minors to further harm in the course of dealing with a complaint. This article is primarily concerned with the situation where both the complainant and the defendant are minors, and there has been inappropriate online behaviour from both parties. This is not an uncommon situation.

There has been very little civil litigation involving the HDCA, and even less involving minors. The focus when the bill passed through Parliament was on the criminal side. Where civil litigation and minors was considered, the focus was on a minor who was the victim. These factors have combined to create uncertainties.

Practicalities under the HDCA

The system is intended to be speedy and user-friendly. It also appears that it is intended to be able to be used easily without legal advice.

Process Outline

The first port of call is a complaint to Netsafe (the only approved agency under the HDCA) via an e-form. Netsafe then evaluates the report and contacts the complainant with his/her options, and tries to resolve the issue. Netsafe cannot impose a penalty.

A teenage girl using a cell phone

If the complainant is not happy with the outcome from Netsafe, s/he can apply to the District Court for orders via an e-form on the Ministry of Justice’s website, under the tabs Justice Sector and Policy / Key Initiatives / Harmful Digital Communications. There is no filing fee. The court attends to service of the documents, including a notice of proceedings with a hearing date.

The application may be made on notice or without notice – ticking a box is all that is required. Where the application is on notice and the alleged perpetrator wishes to defend the matter, s/he must complete a notice of opposition.

This must be filed no later than three working days before the hearing date. The parties then attend the hearing and make submissions.

Where orders are made without notice, the defendant is entitled to be heard on the interim orders made, and needs to complete a form requesting to be heard.

Additionally, either party may apply for variation or discharge of the interim orders.

It would seem prudent if the defendant is opposing interim orders to also file a general notice of opposition, as the interim orders may not cover all the orders sought.

Although the process is intended to be speedy, it is recommended that you check with the court whether the hearing date is a call or a substantive hearing date.

Minor Complications

Litigation Guardians

The HDCA is drafted in a way that takes into account the minor status of the complainant only. It allows for a parent or guardian or professional leader of a registered school (with the affected person’s permission in the latter case) to bring an application on the affected person’s behalf. There is, however, no provision for a parent or guardian to respond on the defendant’s behalf if the defendant is a minor.

A minor must be represented by a litigation guardian in court proceedings pursuant to Rule 4.31 of the District Court Rules. A parent or guardian must therefore make an application to be appointed as litigation guardian under Rule 4.35. This carries a filing fee of $250. Accordingly it is free for an applicant to make a complaint, but not for a minor respondent to defend him/herself.

Name Suppression

There is provision under section 19(4)(c) of the HDCA for name suppression for any person. It is recommended that when any party is a minor, name suppression be sought. If the matter was being dealt with under the criminal provisions of the HDCA, it would be dealt with in the Youth Court and name suppression would be automatic (in fact, minors younger than 14 are not subject to prosecution under the HDCA pursuant to the Oranga Tamariki Act 1989). Further, non-compliance with an order is an offence under section 21 of the HDCA. Conceivably, therefore, if a minor failed to comply with a civil order, then s/he could be subject to criminal proceedings – in the Youth Court, with name suppression.

There is no restriction on age in civil law. Very young children could conceivably have their names part of the publicly searchable register for the rest of their lives for foolish words written when they were very young. The author is aware of children under 14 who have appeared before the court.

Neither the HDCA nor the Harmful Digital Communication Rules 2016 set out the principles applying on a name suppression application. Accordingly the general civil principles apply. These were set out by the Court of Appeal in Y v Attorney-General [2016] NZAR 1512. While open justice is the starting point and “sound reasons” are needed to displace this, “exceptional” or “extraordinary” circumstances are not necessary. The court must strike a balance between the competing interests, considering whether the public will be able to understand the judgment. Of note is that while defendants have a direct interest in the outcome, they did not choose to commence the proceedings.

Law reform

Both the Law Commission and Parliament were concerned to ensure that young people were not criminalised under the HDCA. But the focus on the criminal law appears to have allowed the less desirable consequences of civil law to slip through unnoticed.

Service

One undesirable consequence relates to service of documents. Minor defendants have no right to be represented by a parent/guardian until a litigation guardian is appointed. This occurs only after proceedings are served. As a consequence, children are being served with proceedings by court bailiffs. The author is aware of a case where a 13-year-old was served.

A teenage girl using a cell phone

There is no suggestion that the bailiffs did not, and will not, act properly and sensitively. Yet, how terrifying and bewildering for parents to have an officer of the court arrive on their doorstep and require them to find their child so that court proceedings can be served on them. And what of the effect on the child?

I see two options to deal with this: service on the parent/caregiver, or service via Oranga Tamariki.

Option one could create difficulties in establishing who the parent or guardian is, and create scope for argument about effective service. Swift action is important in HDCA proceedings. Service could be on an adult with whom the child resides, with that person then deemed responsible for responding to the application. They could discharge that obligation by providing the document to the parent/guardian within a specified short timeframe. This would also remove the need to make a separate application for appointment of a litigation guardian (and payment of the filing fee).

Option two may well carry with it its own delay difficulties and create an administrative burden for Oranga Tamariki. Oranga Tamariki may also become involved with a family that would otherwise be unknown to, which may be unnecessary (and again, an administrative and financial burden). But presentation of documents by Oranga Tamariki may be viewed as less threatening than presentation by a bailiff, and this may make it easier to obtain information from the child. A terrified child may lie to parents and the court in a misguided attempt to avoid getting into further trouble.

Each option has its problems, but overall, option one would appear to be the most efficient and lays less costs upon the legal system (noting that civil actions are the responsibility of the parties rather than the state).

Rights of the Child

The best interests of the child are not considered as part of an HDCA civil action. They are in an HDCA criminal action, through section 4 of the Oranga Tamariki Act. Article 3 of the 1993 UN Convention on the Rights of the Child (UNCRC) stipulates that in court actions, the best interests of the child are a primary consideration.

Allowance is made for age in criminal matters – a child of 12 or 13 appears in court only in the most serious matters, while 14 to 16-year-olds appear only in serious matters. Younger children do not appear. Yet a child of any age is required to appear in the District Court on an HDCA matter.

Legislative recognition of rights under the UNCRC would be consistent with New Zealand’s international obligations, and recognise that different considerations apply when dealing with children. It is suggested that a judicial settlement conference (JSC) in cases involving minors on both sides (perhaps at the first call) could allow for a more child-centred approach. The judge convening the JSC would not be able to hear the claim if it did proceed that far, but the cost of a JSC would surely be less than a full Youth Court-type hearing with various advocates and Oranga Tamariki present (recognising again the private aspect of a civil matter).

Gatekeeping

The HDCA requires the approved agency (Netsafe) to have had a reasonable opportunity to consider the complaint and decided on what action (if any) to take as a pre-requisite for action in the District Court (section 12(1)). The applicant is also required to provide a Netsafe summary, which details what actions Netsafe sought and what the result was.

Netsafe, however, does not have a gatekeeper role. Even if Netsafe is satisfied that all reasonable actions have been taken and no further action is required, the complainant may still take court action – potentially seeking exactly the same outcome as has already been provided by Netsafe. For example, seeking a take-down order and a cease and desist order when the material has already been taken down and the child has agreed not to post similar material again, and Netsafe has determined that no further action is required.

This may seem unlikely, but it has happened. An application may be made in the context of a parent taking action on behalf of a child in a situation where both children have engaged in untoward behaviour. A parent may, however, be blind to their own child’s actions and want “compensation” for the hurt their child has suffered. They may see District Court action as the vehicle for this, or they may consider a court order to have more authority than Netsafe.

The Law Commission’s original suggestion had been for a specialist tribunal, which would have a gatekeeping role. The District Court judges made a submission at select committee stage, suggesting that Netsafe only be able to submit matters to the court (which it would do where it was unable to resolve them). This would allow Netsafe to prevent claims proceeding to court where realistic action had already been taken. Currently, a person with an harassment order against them could continue on and make an application to the court, which would require the defendant to see them in court.

A gatekeeper role would not prevent appeals being made where a Netsafe decision was disagreed with. It would assist if the summary provided by Netsafe at the conclusion of a matter referred to all remedies available to the court, and indicated whether the parties had sought a particular option. In particular, Netsafe could indicate its view as to whether there was fault on both sides. This would assist the court in understanding the full picture and potentially empower it to dismiss an appeal on the papers. A lay applicant’s view of affairs may mean that they do not disclose the full picture to the court. (This would also assist in the current system on without notice applications.)

Conclusion

The HDCA process is helpful for minor complainants, but risks being unduly oppressive for minor defendants. Amendments relating to service and appointment of litigation guardians, and recognition of UNCRC obligations could assist in protecting children. A return to something closer to the original concept of the gatekeeper role for Netsafe would also protect children in vexatious litigant-type situations, and reduce the workload for the court.


Taryn Gudmanz taryn@princeschambers.net is a barrister based at Dunedin’s Princes Chambers. She has experience over a wide range of civil and commercial litigation matters.

Last updated on the 5th April 2019