What do you get when you gather members of the public to discuss and debate highly offensive material? We did exactly that the other week, and the end result was a good helping of common sense.

Harmful digital communications

The Harmful Digital Communications Act 2015 (HDCA) came into law recently and brought with it some changes to the Privacy Act.

The law change expands the nature of the complaints that this Office can consider by amending section 56 of the Privacy Act. Previously, the Privacy Act did not cover information that was related to someone’s personal or domestic affairs. That meant that there were situations that would come to our attention that we could see were wrong, and someone had suffered harm as a consequence, but which we could not investigate.

Now, when someone publishes or distributes highly offensive material about you - even if it is a neighbour, a friend or a former partner - you can bring a complaint to this Office.

What does 'highly offensive' mean to you?

The law change started us thinking. The amendment only covers the collection, disclosure or use of information that any “ordinary reasonable person” would find “highly offensive”. Did we really have a good idea of what most people would consider to be highly offensive? We didn’t want to presume to know what the wider comments and values might be, so we decided to ask.

We commissioned research agency UMR to run a small series of focus groups for us to explore the attitudes that members of the public held to a range of scenarios. We ran several groups in Auckland and a further two in Napier. We asked people first to think about the term highly offensive.

We also asked people to think about what might tip information use from being okay into being highly offensive. These discussions centred on a series of scenarios, which started with some relatively ordinary situations and then included more contentious developments. Some of the elements that were discussed included factors like, allegations of wrongdoing that were unproven; intimate photos being shared with strangers, and on social media platforms. The surrounding context played a big factor in influencing participants’ responses to scenarios.

In another part of the discussion, we asked people to sort a range of scenarios into categories of “not offensive”, “moderately offensive” or “highly offensive”.

One of the scenarios we put to the focus groups involved a CCTV camera positioned on a neighbour’s property, but overlooking a family’s backyard and swimming pool where children played and could be seen changing into their togs. Almost without exception, the participants reacted strongly against this scenario. Similarly, another scenario that involved a child’s photo being used on a stranger’s social media platform elicited strong responses, as did the idea of a fake online profile created after a friendship broke down.

Another common theme was that participants took the view that health and mental health information was sensitive (or could be) and that disclosure of that information – even to other family members – could be highly offensive in some situations.

Some scenarios were generally not regarded as offensive, such as photographs taken of celebrities in public places, even with children included. In another scenario, the hypothetical situation of a photo of a protester being posted on a Facebook page was not considered by most participants to be offensive. 

Playing fair with personal information

Sitting in on the focus group discussions reinforced to me how reasonable most people are in considering the effect that wrongly shared personal information can have on others. We all have our blind spots but, mostly, participants considered a range of positions and explanations for each scenario and tended towards a fair interpretation.

In discussing the impact that changing technology had on the way information could now be shared, many people commented that they were conscious that young people today had less of a chance to make mistakes without those mistakes being captured and, often, shared publicly.

It’s at those times that it’s good to have somewhere to turn for help. One participant said that she had heard of the Privacy Commissioner’s Office before because a friend had brought a complaint to us a little while ago and had been pleased with the resolution and the financial settlement we had helped to achieve.

That’s the sort of outcome we want. Not all complaints will be resolved to the parties’ satisfaction, but that is certainly what we aim for. With the ability now to bring a complaint if highly offensive material is disclosed about you, we hope to see some more fair resolutions for affected individuals.

Harmful Digital Communications