When Cardiff man Clayton Kennedy posted an intimate photo of his ex-girlfriend on Facebook, he probably wasn’t thinking about the legalities of his situation. If he had, he (hopefully) would have thought twice, because this week he was given the dubious honour of being the first person to be sentenced under Britain’s new “revenge porn” laws.

This is relevant because until very recently, Kennedy’s victim would have had no guaranteed or easily accessible right to recourse in New Zealand. The Harmful Digital Communications Act (HDCA), which passed last week, changed this by spelling out victims’ rights in these situations.

A little context

Digital communications have made capturing, saving and distributing information much easier than it used to be. This has generally been positive. Ideas spread faster, debates are more inclusive and people have quicker access to more information.  

But there’s a dark side. Digital communications have made it easier to bully people, harass people and distribute harmful content about them.  If you have a spare 15 minutes, John Oliver characteristically does a great job of explaining the issue:

Over the past year or so we‘ve received a number of ‘revenge porn’ enquiries that closely mirror Kennedy’s case. We weren’t able to investigate these cases because they were exempt from the Privacy Act. Section 56 of the Act said that any information (including video recordings and photographs) created or distributed through the course of domestic affairs was excluded from the Act. 

The HDCA changed section 56. Where the Privacy Act used to exempt all information related to domestic affairs, it no longer does so when someone publishes or distributes highly offensive material about you.

The amendment only covers information that any ordinary reasonable person would find offensive. This terminology comes from the common law standard set in Hosking v Runting.

In Hosking v Runting, the Court of Appeal ruled that taking photos of a celebrity couple’s twin children without their consent in a public place did not breach privacy. One of the reasons for this was because the photos would not be “highly offensive and objectionable to a reasonable person of ordinary sensibilities.” To the children’s parents, the photos were highly offensive; to any other person, it was just a picture of two kids.   

Using this as a guide, material has to be objectively offensive to anyone rather than subjectively outrageous to the complainant.

Ending the public info free-for-all

A similar theme applies to the HDCA’s changes to principles 10 and 11 of the Privacy Act. Principle 10 says agencies can’t use any information for a different purpose than the purpose it was collected for, while principle 11 says that agencies can’t disclose personal information they already have.

Both of these principles have exceptions, one of which addresses the use of publicly available information. Under principle 10, an agency was able to use publicly available information about you, and under principle 11, an agency was able to disclose publicly available information about you.  

The HDCA added a caveat to each of these exceptions. Public availability in and of itself is no longer enough to trigger the exceptions to principles 10 and 11. Agencies can now only use or disclose public information if it would not be unfair or unreasonable to do so.

As an example, if you had seen Kennedy’s victim’s photo on Facebook and shared it, you previously would not have been in breach of the Privacy Act because the photo was already public. Now, you may well find yourself in breach because sharing that photo would probably be both unfair and unreasonable. So think twice before you click ‘share.’

The outer limits of free expression

Digital communications have turned everyone into a publisher; it’s much easier to find and spread private information than it was when the Privacy Act passed in 1993. It makes sense to add outer limits to what is and isn’t appropriate. We’re pleased to see that the HDCA has done this.

Image credit: Copyright - State Library of Victoria

Harmful Digital Communications