The law catching up to cyber-bullying

This article was first published in the Dec/Jan edition of Boardroom magazine.

Cyber-bullying and internet smear campaigns became a major theme of this year’s election campaign.  Judith Collins, Whale Oil, Nicky Hager, Kim Dotcom – these names remind us that online communications have a degree of permanence and spread that casual chat around the water cooler does not.

Existing law is challenged by cyber-bullying.  The legal armoury available now against personal attacks, short of assault, and invasion of privacy is generally limited to:

  • the Harassment Act 1997, which governs stalking or offensive behaviours that may cause the victim to fear for his or her safety
  • the law of defamation, which provides a civil remedy when someone publishes a defamatory statement about you or tells lies calculated to injure your reputation, and
  • the Privacy Act 1993 which protects against the unlawful disclosure of personal information.

But these laws were designed for a pre-Facebook and Twitter society.  Governments, including the UK and New Zealand, are now responding to the need to address the inadequacies of current sanctions and remedies in the Internet age.

The Harmful Digital Communications Bill

The Harmful Digital Communications Bill has been carried over from the last Parliament and is now awaiting its second reading.  It was introduced by then Justice Minister Judith Collins in November 2013 and was reported back from Select Committee on 27 May this year.

It will create a civil enforcement regime supported by criminal penalties for certain online behaviour, with imprisonment of up to six months on conviction.  Both Police and private individuals will be able to bring proceedings in the District Court under the Act. 

Examples of harmful communications include sending or publishing threatening or offensive material and messages, spreading damaging or degrading rumours, publishing invasive and distressing photographs, and harassing and intimidating people.  “Harm” is defined in the Bill as “serious emotional stress”.

The Bill identifies ten “communication principles”, the serious, repeated or threatened breach of which can be grounds for bringing a prosecution.  Included among these is that digital communication should not disclose sensitive personal facts about another individual, or be used to make a false allegation. 

The UK legislation is broadly similar but will provide for jail sentences of up to two years, from six months currently.

The courts

New Zealand’s Facebook engagement among the on-line population is the highest in the world at 80 per cent (compared to 74 per cent for Australia, 69 per cent for the US and 68 per cent for the UK).  Given this very usage, surprisingly few employment disputes featuring the use or misuse of networking sites have come before the Employment Court. 

However the Court expects that number to rise over time so took the opportunity in a judgment handed down in October last year to traverse some of the relevant case law from Australia and New Zealand and to draw out some of the implications arising from the permanence and penetration of comments on social media networks.

Among the Court’s high level observations were that:

  • Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of the employment process
  • Facebook is not a strictly private forum and “any asserted expectations of privacy will likely be tested” by the courts
  • posted content online may be used to substantiate a dismissal or disciplinary action against an employee and, by logical extension, could undo a claim of constructive dismissal.

The Court also expressed a lack of sympathy for the suggestion by an Australian tribunal that a “special dispensation” be allowed for older workers to take into account their ignorance of social media norms, saying:

“[I]t is unclear why a distinction along the lines of age would apply, as problems with privacy on social media tend to stem from a sort of recklessness (which does not know any age boundaries) rather than lack of technological understanding”.

Some practical advice points

In the workplace, social media issues can arise in a number of ways, from posting holiday snaps while on sick leave to employees venting or criticising employers and/or workmates, to sexual harassment and negative Facebook campaigns.
As with all things work-related, when in doubt, have a policy.  Many businesses will already have IT, privacy and social media policies.  Check they are up to date.  Older social media policies tended just to focus on time-wasting through employee use of Facebook etc.  IT policies regulated use of work email for personal matters, and privacy policies tend to be about five lines long.
The modern business cultivates a supportive and positive work environment where staff are clear about the employer’s expectations when it comes to social media use.  Front and centre should be an expectation that online bullying of fellow workers will not be tolerated (through email or social media outlets).  There should be proper channels, with support available, for airing grievances.  Clarity around these matters helps both employers and employees.
For victims, the Office of the Privacy Commissioner can investigate instances where personal information has been wrongly disseminated and the law of defamation, though tricky and requiring specialist advice, does have options to rein in unwarranted personal attacks.
It may feel like a number 8 wire approach for now, but this is certainly a space to watch as change will come and probably quite fast.
This article was written by Justin Graham.

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