Beware the re-share

The Harmful Digital Communications Act 2015 (HDCA) has recently been used to protect a social media influencer against the “social commentary” of another influencer.

The HDCA was passed in 2015 to help people dealing with serious or repeated harmful digital communications. It sets out 10 communication principles prohibiting certain forms of online communications such as threatening, intimidating,menacing or grossly offensive communications, or those which are used to harass an individual.

Last year, Bernadette Gee, founder of ‘Magnolia Kitchen’ (the brand behind a best-selling book and café) brought a claim in the District Court against Pebbles Hooper, alleging Ms Hooper had breached the HDCA. Ms Hooper had reposted original content shared by Ms Gee to a social media account. Accompanying the repost was Ms Hooper’s unfavourable interpretation as to what that original content showed. Ms Gee claimed that this reposting of her content was taken out of context and used as a means to bully and harass her.

Ms Hooper, in defending the claim against her, relied on her right to freedom of expression as a social commentator in reposting the content and sharing her opinions.

The purpose of the HDCA is to deter, prevent and mitigate harm caused to individuals by digital communications and provide those victims with a quick and efficient means of redress. The HDCA focuses on the harm caused to a victim by any wrongful digital communication. This means that where an individual re-shares content originally posted by another user, and where that content is taken out of context or accompanied by additional commentary and this causes harm to the victim, the Act could apply.

The District Court recently applied the HDCA in such a way. The Court stepped in to protect Ms Gee against the digital communications of Ms Hooper. Judge Dawson found that Ms Hooper had breached several of the principles set out in the HDCA, including how a digital communication should not be threatening, intimidating, or menacing and should not be grossly offensive to a reasonable person in the position of the affected individual. The Court also found Ms Hooper had breached the HDCA by posting to incite or encourage anyone to send a message to an individual for the purpose of causing harm. 

The decision has yet to be made publicly available, however it coincides with a recent release from Netsafe, New Zealand’s online safety organisation, that harmful digital communications are on the rise; Netsafe reported having seen a 24 percent increase in harmful digital communication reports compared to the same timeframe in the previous year. It also sends a cautionary message to all users of social media, to be mindful of any potential harm caused, including by reposting another user’s original content.

We advise on a range of matters relating to the HDCA, if you would like more information, please get in touch.