Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill

Tēnā koe, Madam Speaker. Tēnā koutou katoa. I move, That the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

This bill recognises that non-consensual publications of an intimate visual image is, in and of itself, harmful because it involves a breach of trust and confidence as well as a significant invasion of privacy. Thus, the harm is implicit in the action. I would like to acknowledge my colleagues the Hon Poto Williams and also the Hon Clare Curran—Poto, initially, for starting the process of looking at this particular kaupapa but also the Hon Clare Curran for taking an interest and actually introducing me to Judge Harvey, and I want to acknowledge him because he helped me write that part of my explanatory note.

So, currently, section 22 of the Harmful Digital Communications Act, which is titled “Causing harm by posting digital communication”, requires, firstly, that a person has intended to cause harm when they post these digital images and, secondly, that a harm has actually occurred. So what this bill would clarify is that without consent, such publications are a form of image-based sexual abuse.

Now this terminology was coined by McGlynn and Rackley in the Oxford Journal of Legal Studies in 2017. Their article highlighted how technology has transformed and expanded how sexual violence can be perpetrated, which is manifest in the non-consensual distribution of private sexual images, and it said that the law must respond to combat this form of sexual abuse.

So why this bill? Why this bill is because there are victims. Those victims are harmed, and I will now communicate the extent of that harm. To individuals, there are physical and mental health issues—not in our jurisdiction but in other jurisdictions, this has led to suicide. There’s loss of dignity, privacy, and sexual autonomy. Collectively, this is termed a form of cultural harm. These acts harm society because of how they portray women, and they create an environment that can harm our children if we allow it to become normalised, and this form of sexual abuse and violence is not normal and must be eradicated.

I also want to acknowledge Netsafe’s CEO, Martin Cocker. I have engaged with him, and I also want to acknowledge the publication Image-based sexual abuse: A snapshot of New Zealand’s adults’ experiences. In the summary of findings, there are 3.4 million - odd adult New Zealanders, and what that survey found was that nearly 5 percent of adult New Zealanders have said they have personally experienced image-based sexual abuse—that’s 170,000 adults—and, of those, 3 percent, or 100,000, have had their images shared online. Ninety-five percent of the victims are women.

The other interesting phenomenon—and there’s an article in the New Zealand Herald tonight—is that the 5 percent of men who are tricked by this image-based sexual abuse actually end up in what they call sextortions, where they go online, they have sexual interactions, there’s an image of part of their anatomy, and then the people try and extract money from them. So, as I said, go on the New Zealand Herald website, where there’s an example of it as we speak.

It’s also a phenomenon—and I want to highlight this—for the LGBT community and also, specifically, for those who identify as Asian.

What is image-based sexual abuse? I think we should define it. It’s “sexting”, it’s dick pics, it’s revenge porn, or, as I categorise it, it’s image-based sexual abuse. Dr Claire Meehan, who’s an associate professor at the University of Auckland, on 29 February wrote about the “Nudie Project”. Essentially, within that context, she defined the urgent need for us to look at the sharing of images within the context of consent. That’s, in fact, what this bill does. It’s very clear: if you don’t have consent, then you can’t post these images. It’s used to control women. It’s used when they’re leaving a relationship or when they’re pursuing legal action against their abusive partner. There are 3,000 websites dedicated to this image-based sexual abuse. So this distribution is shaping how our children view women and notions such as “she wanted it” and “she deserved it”.

I’ve had to read up a lot on this technological phenomenon. Sexting between partners is a form of foreplay, but obviously they’re doing it with each other. The problem we have is when those partnerships break up and how those images are then used as a form of sexual violence.

Finally, I want to highlight that in April 2020, the classification office released a report titled Growing up with Porn: Insights from young New Zealanders. They surveyed 14- to 17-year-olds. Porn in New Zealand is highly accessible. It’s normalised, it’s used for sexual arousal, and that’s how our kids are learning how to have sex. Within those contexts, they’re learning about gender roles and how to express sexuality. Sexting is how young people these days tell each other they like each other. It’s a phenomenon. It’s how they communicate their sexual interest. Young people in that survey said they need and want sex education, and they need and want adults to talk to them. They want comprehensive sexuality education. Our children should not have to access porn to learn about sex, about healthy relationships, about consent, and about mutual pleasure.

So what this bill is doing is trying to address at one end of the spectrum, but, actually, the relevance at the other end of the spectrum I actually think we should connect up. I’m going to take this opportunity to highlight the work of the Hon Tracey Martin, who is very, very concerned about access to porn and how our children are being normalised in terms of gender roles through some of that porn. But I also want to highlight the work of Jan Logie in her Sexual Violence Legislation Bill. The reality is they’re both ends of the continuum. If our children are growing up thinking these types of sexual interactions are normal, then there’s no wonder we have such high rates of sexual violence in New Zealand. So I, obviously, am pleading with this House for us to have a very mature conversation about the role of consent and about us eliminating this type of sexual violence, sexual abuse, and sexual exploitation, and I very much look forward to the conversation that we will have, hopefully, through this bill with the New Zealand public. Kia ora.

Thank you, Madam Speaker and members of the House this evening. The last 10 minutes are drawing to a close, and so, to my colleague Louisa Wall, I say that the National Party supports your bill, which is a member’s bill and, I believe, was drawn recently, early July. So here we are before the House, the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. This, of course, is an amendment to the Harmful Digital Communications Act of 2015, which was a piece of work that at the time the justice Minister, the Hon Judith Collins, now the National Party leader, introduced that 2015 bill to the House.

As Louisa has shared with us in the House this evening, this bill is significant and it’s important because it’s an addition to the Harmful Digital Communications Act by way of a proposed amendment, new section 22A, inserted by clause 4, which is to include—before the Justice Committee to consider—posting an intimate visual recording without consent. I don’t sit on the Justice Committee—although I may have the good fortune to be substituted in for this bill. However, as lawmakers, as legislators, every single one of us in the House, when these bills come before us, we have a duty of responsibility and care to scrutinise and to look to the black letter of the wording and of the law to make sure that it is accurate and correct in the very intention for which the bill has been put before us as members to decide on. My background as a lawyer—I still look at everything that comes before me with my legal eye and a legal lens to that, and I do so with a duty of care and don’t regard it as being a silly thing. I think it’s significant and responsible and important.

So the purpose of the Harmful Digital Communications Act is to deter, prevent, and mitigate harm caused to individuals by digital communications. The amendment that is proposed is in relation to intimate visual recording. What is that? That is defined under section 4 of the 2015 Act. It’s not detailed in the proposed amendment, but I do consider it’s important for people to be clear as to what an intimate visual recording is. That “means a visual recording (for example, a photograph, a 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 [that] recording”. Then it goes into further detail about the explicit nature of that intimate visual recording. I won’t go into the detail of that, but I do draw to the attention of the members who will be scrutinising this that at section 4 it details what an intimate visual recording is.

The other significant thing about this proposed amendment is the tariff, the penalty that is suggested. That tariff and penalty is very different to that which is under the Harmful Digital Communications Act for the use of posting a digital communication. Now, that’s section 22 of the 2015 Act, and the sentence there is for a term—if that is to be the actus reus, which is the act, and the mens rea, which is the knowledge and the intent of posting a digital communication. That digital communication penalty is for a term not exceeding two years or a fine not exceeding $50,000 for an actual person and, in the case of a body corporate, a fine not exceeding $200,000.

In relation to an intimate visual recording, it’s proposed to reflect the seriousness of that crime that the penalty would be for a period of imprisonment not exceeding three years or a fine not exceeding $50,000 for a natural person, and, again, in the case of a body corporate, a fine not exceeding $200,000. So that shows the difference between the seriousness and the severity of the actual offence and the harm that would be caused to the victim. Now, that’s something that the Justice Committee will need to decide and determine as to whether or not the proposed seriousness of the offence and the penalty accordingly is appropriate.

In this day and age, with social media, we are concerned about the accessibility of harmful material, not only the digital communications but the intimate visual recordings. Many of us here in the House are parents. We’re not only concerned for the elderly but also for the young. My colleague has talked about the impact of the harm and the impact to the victims and the associated trauma of such exposure that goes with social media and the far-reaching impact of it.

This is the first reading. It will be thoroughly scrutinised before the Justice Committee, and, in so doing—I anticipate that this is necessary law—those members who are presiding and sitting on the committee will give due diligence scrutinising what the law is meant to achieve. Again, I remind the members in the House and those sitting on the select committee that there is a duty of care—that is not such a silly thing that’s to be overlooked—and that that is factored into the decisions that are made when this bill comes before the House for the second and the third reading, should it be passed into law. I commend the first reading of this bill to the House.

Thank you, Madam Speaker. It’s a great honour and a privilege to stand in support of the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill and to begin by acknowledging the work of Louisa Wall—the indefatigable Louisa Wall, I think we’d call her; certainly the very lucky Louisa Wall—who has repeatedly had her members’ bills plucked from the ballot. We have yet another one—well-drafted, well-crafted, well-thought-out, deeply principled, and for the public good. So I say to my colleague Louisa Wall, thank you for that.

We know that in this day and age and in the online environment that we are all now part of, and cannot avoid being part of, the posting of personal images in a way intended to cause humiliation or embarrassment is now an unfortunate part of that life. We have the Harmful Digital Communications Act, which the previous Government passed, with the support, I think, of the vast majority of the House. It was the right thing to do. It reflected the needs of the age and of the mediums that many people communicate in. It is those social media now which provide this easy way for people motivated to do harm to others in order to cause embarrassment to do so, by posting intimate images and images that would otherwise be confidential. So it’s important that we do have effective remedies for that.

I think the Harmful Digital Communications Act in its current form is performing very well. It’s achieving much of its purpose. But, with the incidence now of what is now dubbed revenge porn—those who deliberately seek and decide, because of some sort of huff or some sort of breakdown of personal respect for others, to cause harm through posting images—the current Act does not provide enough of a remedy. This will do that—this will do that—and it will clarify the elements of the offence that a person who does those activities will be charged with so it is easier for those considering how to achieve a remedy and how to go after the person who’s caused harm. It’ll be easier for the prosecutors will be easier for the court, and, I would hope—as, indeed, I know Louisa Wall does and indeed Harete Hipango, who’s just spoken—will achieve justice for those who have been harmed.

We know the harm this can cause. It’s not just excruciating embarrassment and humiliation; it is anxiety, it is depression, and it can cause a person’s life to be turned upside down. You know, the reality is, as we go through life and we’re forming relationships with others, sometimes we come across people who we just don’t know every dimension about. We just don’t know who we are actually hooking up with. For some people, they discover they’ve met somebody who has pathological tendencies, deeply psychologically damaging tendencies, and they can cause harm. Harm caused by posting intimate images online can now be dealt with effectively through the remedies contained in this bill.

So I would hope that the Justice Committee, if the bill succeeds this first reading, gives it close attention, the attention that it deserves. On that basis, I commend the bill to the House.

Just before I call the member, can I just say that there has been a great deal of discussion on this side of the House, especially while the Minister was speaking, and it’s very difficult when people are speaking to the House and there’s a lot of conversation. I noticed the Minister was looking over there.

Debate interrupted.

The House adjourned at 10 p.m.