The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act 2022 (Amendment Act) became law at the start of March 2022.
The amended Harmful Digital Communications Act (HDCA, ‘the Act’) introduces a new criminal offence, which will be dealt with by Police. The offence is intended to help individuals keep intimate visual recordings from being shared without their consent.
It is now an offence if a person posts an intimate visual recording without the consent of the person that is the subject of the recording, or is reckless as to whether the person has given consent.
Key Changes to the HDCA
The newly amended Act includes two key new sections:
New sections, 22A and 22B, have been inserted:
- 22A Posting intimate visual recording without consent
- 22B Court may make civil order during proceedings for offence under section 22A
New section 22A: Posting intimate visual recording without consent
The key addition to the Act is a new criminal offence.
A person commits an offence if they, without reasonable excuse, post a digital communication that is an intimate visual recording knowing that the person who is the subject of the recording has not consented to the posting. (A person must be 16 years or older to be able to provide consent for an intimate visual recording to be shared.)
It is also an offence to post an intimate visual recording if the person is reckless about whether the person featured in the intimate visual recording has consented to the posting.
What is a ‘post’?
In relation to a digital communication, a ‘post’ means to transfer, send, publish, disseminate, or otherwise communicate:
- any information, whether truthful or untruthful, about the victim, or
- an intimate visual recording of an individual.
A post also includes an attempt to do any of the above.
What is an ‘intimate visual recording’?
An ‘intimate visual recording’:
- means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device with or without the knowledge or consent of the individual who is the subject of the recording, and that is of—
(i) an individual who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and the individual is —
(A) naked or has his or her genitals, pubic area, buttocks, or female breasts exposed, partially exposed, or clad solely in undergarments; or
(B) engaged in an intimate sexual activity; or
(C) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing; or
(ii) an individual’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—
(A) from beneath or under an individual’s clothing; or
(B) through an individual’s outer clothing in circumstances where it is unreasonable to do so; and includes an intimate visual recording that is made and transmitted in real time without retention or storage in—
(i) a physical form; or
(ii) an electronic form from which the recording is capable of being reproduced with or without the aid of any device or thing
New section 22B: Court may make civil order during proceedings for offence under section 22A
If someone has committed an offence of posting a non-consented digital communication, the Court may also make a civil order:
- to take down or disable material
- that the defendant cease or refrain from the conduct concerned
- that the defendant not encourage any other persons to engage in similar communications towards the affected individual
- that a correction be published
- that a right of reply be given to the affected individual
- that an apology be published
FAQS ON THE AMENDED ACT
Q: What are the fines/penalties under this new criminal offence?
A: A person is liable for up to two years prison or a fine of up to $50,000 (or up to $200,000 if it’s a company). If someone has committed the offence, the Court can also make a civil order to take down the content, stop doing it, give an apology etc.
Q: Who enforces the new offence under the Act?
A: This is an offence that will be dealt with by Police.
Q: Do I need to complain to Netsafe first?
A: No. You can go straight to the Police.
Q: What if I shared an image last year without consent. Am I caught by this?
A: No, this new offence came into force on 9 March 2022. The new offence applies going forward from that date.
Further reading about the HDCA
- What happens when you make a report to Netsafe about a harmful digital communication?
- I have been contacted by Netsafe about the HDCA: what does this mean?
- Netsafe’s submission to the HDCA Amendment Bill
- The Harmful Digital Communications Act 2015
- Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Act 2022