First Major Harmful Digital Communications Act case to be appealed
In a decision delivered in November 2016
, the District Court at Manukau held that the posting on Facebook of revenge porn pictures by an ex-partner (pictures of his ex-wife in her underwear), did not constitute harm under the Harmful Digital Communications Act 2015.
The test for harm - defined in the Act as "serious emotional distress" - has both objective and subjective elements which must be proved beyond reasonable doubt, just like any other crime.
The judgement indicates that the two objective tests were met but that the subjective element, contained in section 22(1)(c) of the Act
, failed for lack of sufficient evidence.
Given the obvious distress that Mrs Iyer, the ex-wife, would have felt, one would expect there to have been evidence but it was clearly not adduced. Good guidance here for anyone prosecuting such a case.
It will be interesting to see whether the High Court on appeal
can overcome this lack of evidence.
Disclosure of Interest: Rick Shera is the Chair of Netsafe, the approved agency under the Act.Image from http://ind.pn/2jqe5t5