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

I stand to take the Green Party’s call on the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. I hadn’t intended to speak on this piece of legislation when I walked into the House today, but I note that my colleague Jan Logie is bound up in other business at present. I just wanted to add our tautoko to the point that we support this bill, particularly going through to that select committee stage to test the application of it.

Just to be really clear on how this legislation operates, it does so by simplifying the test that presently exists when it comes to harmful digital communications, particularly in what is colloquially referred to as revenge porn. At present, my understanding is that the Act operates by way of requiring that the person who is sharing the material has to have an intent to cause harm, it must have an objective standard of harm caused, and the victim must have actually experienced that harm, obviously where the burden of proof on those exists within the present court system as status quo.

The new offence, however, involves a simpler test where it is assumed that the sharing of an intimate visual recording is always harmful. It therefore enables that burden of proof to be shifted in such a way that those who have been through what is becoming an even more, unfortunately, commonplace experience of particularly younger people in this online world to operate in a culture where we take slightly more responsibility for that which we are posting, particularly if it is those intimate recordings of others. The Greens support this bill through its first reading and look forward to a rigorous debate at the select committee stage.

Thank you very much, Mr Speaker, for the opportunity to speak on this member’s bill in the name of Louisa Wall.

The full name of the bill, Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, is better known as revenge porn—when you have postings either on social media or online of images which can be harmful. One of the challenges that we face is a continually evolving space of technology and a continuing evolving space of society and how we as lawmakers keep pace with the challenges that that continual change provides. It is opportunities like members’ bills—and I congratulate Louisa Wall for being very vigilant in this space, particularly in the rights of women—that allow us to make sure that the law reflects and protects those who need it.

I’d just like to quickly reflect on some of the findings from NetSafe in relation to image-based sexual abuse, and that’s to look at the types of abuse that happen online so that we’re aware of the nature of the problem that Louisa Wall’s bill proposes to address.

Overall, 5 percent of adult New Zealanders said they have personally experienced image-based sexual abuse, and it is far more common in terms of those aged under 30. In general, men and women were equally as likely to experience image-based sexual abuse, and about 4 percent had someone threaten to share their intimate pictures or videos online, and this was more common among those under 30 years old.

They’re interesting statistics, which I think we need to focus on and keep remembering that these are challenges that the next generation are grappling with. As good lawmakers, it is our duty to make sure that the law reflects those challenges that young people—men and women—are having to deal with.

Of those questioned under the NetSafe survey, 3 percent said that the intimate content had actually been shared online. This was far higher amongst 18- to 29-year-olds and those who did not identify as heterosexual. Also, those who identify as Asian were the ones that came through in that report.

How is this bill responding to the issue of revenge porn, or posting intimate images online without consent? This bill makes it an offence for a person to post an intimate visual recording of another person—and quite rightly so. For the commission of the offence, the person posting the digital communication must either have known that the victim had not expressly consented to the posting or had been reckless as to whether the victim had done so.

This goes right to the heart of the question of consent, and it takes it into an online forum. It’s incredibly important that we have an ability for young people to know that it is not acceptable for someone you know who has an intimate recording of you to put that online without your consent. So if anything can be communicated through this bill, it’s the importance for people to know that the law is there to protect those and to protect your rights and your privacy as well.

This bill increases the current penalty for imprisonment from a term not exceeding two years to a term not exceeding three years, to rectify the severity of this form of sexual abuse. It’s important to acknowledge too how much it’s important to our persona, our job prospects, our ability to make friends—you name it. All of those things follow you in terms of your online persona, and so we need to go to lengths to make sure that privacy and their personal integrity is protected as we increase in a growing digital age.

I’d like to conclude by saying that revenge porn is currently covered by the broad offences of posting harmful digital communications, but what we need to do is increase the strength of that existing law and bring it up to speed. We know as a fact this Government has placed a real focus on breaking the cycle of family violence and sexual violence while better supporting survivors. We’ve done a lot in that space, and I like to think that Louisa Wall’s bill is yet another element of increasing that overall response to family harm. Thank you.

I take this call and rise on behalf of the ACT Party in support of this bill. ACT originally opposed the primary legislation when it went through, due to the wide principles that could be used to restrict communications, and the chilling effect that this would have on freedom of speech. We thought, back then, that amendments could have been made to the Crimes Act and that that would have been suffice. But seeing as that primary legislation was going to go through, we thought that we would put in Supplementary Order Paper 93 because we actually had an issue with intimate visual recordings not being captured by the primary piece of legislation. We saw then what the Government sees now: victims in despair, humiliated, and suffering mental health issues. When the member across the floor there referred to 5 percent of New Zealand adults being victims of online image-based abuse, that’s 170,000 people—that’s huge. The reality is that we have also had 407 prosecutions since 2015.

A Stuff article reported a couple of weeks ago on a case where an outdoor instructor was convicted for secretly filming an intimate encounter. Judge Maree MacKenzie recorded the effects of the case on the victim, when addressing the defendant, by saying—and I quote—“It has left a permanent scar. It was distressing and as she says it was the most painful and traumatic experience of her life. Amongst other things she feels devastated by the invasion of (her) privacy, particularly when her boundaries had been made clear to you. The victim impact statement reveals the incident has had a catastrophic impact on her mental health and well-being. It has impacted all aspects of her life to the point where there are trust issues with men, and it has impacted her views on relationships. It has altered her perception of the world.”

It is a pity that it’s taken six years to get to this point, but fantastic for the victims that we’re here now. We further acknowledge and support that this bill will enable the courts to issue the removal or takedown orders of revenge porn recordings. Revenge porn was a reality before the primary legislation was enacted in 2015, and even more so now in 2021. More than a deterrent, this bill acknowledges the impact of harmful digital crime on the victims, and in that case we support that and we commend this bill to the House. Thank you.

I’m proud to stand and take a call in support of this bill. I first want to thank my colleague Louisa Wall for her work on this issue and actively addressing what is a significant area of harm for many. This is a bill about making it clear that posting a digital communication comprising intimate visual recordings of another person without their consent is an offence.

Over the last week, I’ve been speaking to individuals about the upcoming legislative programme in the House, and mentioned this bill and some of the horrific examples of posting intimate recordings that have occurred in New Zealand and overseas. My most frequent response was “Seriously—isn’t this already an offence?” Unfortunately, the answer at present is “Well, maybe.”—maybe. The reason it’s a “maybe” is because of the high and largely subjective threshold for establishing a breach of the current Harmful Digital Communications Act. Under the Act, posting offensive material is an offence only where three parts of a test are met, and those parts are: where the person posts a digital communication with the intent to cause harm to the victim, where posting the communication would cause harm to an ordinary reasonable person, and where posting the communication actually causes harm to the victim.

Women’s Refuge chief executive Ang Jury commented on this high threshold after the refuge conducted a study researching the links between domestic violence and suicide. She said, “This is a subjective and arbitrary determination of whether an offence has occurred, and needs to be reviewed.” This call for change was also echoed by Tess Upperton in her dissertation on revenge porn, where she writes, “The offence is too broadly worded to provide a strong deterrent to perpetrators of revenge porn, as its focus is on the outcome rather than the act itself.”

But let’s stop and think about the inherent impact of posting intimate recordings online. Speaking to this bill last year, Minister Little talked about it being 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. Let’s be clear: shame is not just a more exaggerated form of embarrassment. Embarrassment is regret clothed in the company of others; shame feels knitted to our very bones and is often most deeply felt when you’re in isolation.

Under the new proposed section of the test, it would be about taking the action to post an intimate recording and knowing the victim hasn’t consented, or being reckless as to whether they have consented, to its posting. In other words, the change recognises the inherent harm of the act of posting intimate recordings without consent.

I want to speak briefly about the assumptions that are too often made about the radius of consent. Consent to one act doesn’t mean consent to a second. Consent to taking or sharing a recording of an act doesn’t equate to consent to it being shared further. Consent to being in a recording does not transfer ownership rights to a recording. So why has society allowed this for so long? We’ve grown from roots that have historically shamed women for sexual activity—actually, both consensual and non-consensual. In this context, blurring the radius of consent seems to matter less, as moral judgment follows regardless. Here’s where we have more work to do. Every act has an ecology. For those posting intimate recordings without consent online, they are indeed individually responsible. But we have work to do to ensure that the culture we promote in schools, at workplaces, and online makes it clear that shaming by use of intimate imagery is never permissible. I hope soon, if asked “Surely that’s already an offence?”, instead of saying “Maybe”, we can simply say “Of course it is”. I commend this bill to the House.

I rise in support of this bill, and I want to first congratulate member Louisa Wall for another step forward in the protection of women and, in fact, all people from sexual harm. And I rise also as a member of a Government who have already taken some very strong steps, and this is—as my colleague, Ginny Andersen has just said—another little brick in the wall we are building against sexual harm being done to people in our community.

When I look at this bill, there’s two lenses through which I view it. The first is as a mum, and a mum of teenagers. The fact is that the world has moved on somewhat from when we were young, and the unfortunate fact is sexting and the solicitation of intimate pictures and recordings is very, very widespread, even among children as young as 12 and 13. These kids are not in any position to understand just how long term the consequences may be of having taken photos of themselves that are really intimate. Nor, frankly, are many of the people who solicit them able to really take cognisance of what it might do to the girl who they are now annoyed with or have fallen out with when they then go on and post those things online. They are not cognisant of the harm they do. And we know how vulnerable and, in fact, how limited is the teenage brain. I think it was Nigel Latta who said teenagers are wrong in the head, and he was right. As a mother, I can say that every day.

The other lens through which I view this is as a Family Court lawyer. Now, in the Family Court you constantly see couples who are irrationally angry with each other as part of the grief process that they go through in separation. That is a state in which rationality and kindness and respect for others does not often get a look-in. The number of cases in which recordings or pictures made in a consensual circumstance are then taken and weaponised, we know from the research done, is not a small number. In fact, one of the figures that’s been quoted by NetSafe is about 5 to 6 percent of New Zealanders, which is about 300,000 people. That’s an awful lot of harm.

So it is very, very timely that, as my colleague Vanushi Walters has said, we move away from a framework in the old legislation six years ago which was still requiring a high threshold of harm and effectively putting the onus back on victims to show that there was deep damage done to them. It was, in a way, a form of blame, and I am delighted to see it go.

So I just want to look precisely at the areas of the law that are going to be changed here. So section 22 under the old Act says there must be an intention to cause harm; that harm must be a reasonable consequence of the act for the ordinary, reasonable person in the victim’s position; and finally, it must cause actual harm. But when we’re saying harm, the definition is extremely high. It is “serious emotional distress”. That’s a high threshold added to what is already a high threshold, given the need for a reasonableness of consequences and actual consequences to be proven.

The fact is that, while some judges, thankfully, as my colleague on the other side of the House has pointed out, do recognise the immense harm that is done by these behaviours, some don’t. And there are instances of judges not taking seriously and not considering the harm done to be of a high enough standard. And for that reason, it is an absolute delight to look at section 22A, inserted into the Act by clause 4 of this bill which would simplify matters to remove the requirement of any intent to cause harm—remember those stupid teenage boys not thinking seriously. It would remove the requirement to prove any harm. It makes it clear consent has to be free and informed, and the defendant doesn’t have to have known there was no consent.

National supports this bill. Intimate visual recordings, as this bill euphemistically calls them, are a modern phenomenon and a huge concern. National agrees that where such recordings are posted without consent of the person in the recording, that should attract a criminal penalty. This, of course, was already at a level, an offence, in the current law of the land, the Harmful Digital Communications Act. But that Act required, as I understand it, proof of intent to harm. And there’s an argument—in fact, I think it’s right to say that that bar is set too high.

Like the last member, I actually want to speak as a member of Parliament, a local member of Parliament, and also as a dad, fortunately, with very young children—this is not an issue before its time. I can say, in my electorate, at intermediates, at high schools, I know this is an issue because I’ve been told by the leadership of those schools. Images and recordings of young people are made—and like the last member said, really young, we’re talking 12-year-olds; I’ve been told of these instances, and in quite significant numbers at certain times—and then there is a threat, there is blackmail. The cases I’ve been told about, say, by leadership in the schools, are for sexual conduct or other favours in return for these publishings or postings not being published, or these images not being published or posted.

I’m going to make a plea to our young—they may say I’m an old fogey, but rarely, if ever, is it a great idea. In fact, I’d say it’s a really bad one to let others have intimate images and recordings of yourself. In friendships, in relationships, look, we know that when you’re young chances are—I hate to break it to you—they’re not going to last. But I do know this: thanks to this bill, if you do—if anyone does say they’ll post it, or worse, if they do post it, it will very soon, no ifs, no buts, be a criminal offence. I’d suggest you go to the police, actually. They will help you and solve this with respect to your dignity and your privacy.

I want to say congratulations to the member opposite, Louisa Wall, on yet another member’s bill in this House. She has the luck of the devil, it seems to me, with her many members’ bills drawn out of the ballot. As I say, the luck of the devil; I’m not sure how she does it. I don’t always agree with the positions she takes in the bills that she puts forward. And I think there’s a danger, as I say, with respect to the member—because I don’t want it to turn into this glossy, friendly thing—that sometimes she can be intolerant in the name of tolerance in some of the bills that she puts forward, but I do want to say this: I do think she’s an incredibly strong member of Parliament. And I do think, as they have overseas—actually, I think it’s The Spectator magazine that has “Backbencher of the year”. She will have won it by now, and she’s, you know, potentially in it. I personally think I may also be in it for bringing The Wiggles to New Zealand, I think, in the next month or so. That’s a pretty strong contender, I would have thought. But congratulations to her, once again—

💬 Hon Member: I hope you get good tickets.

Hamilton, I think, on 26 March. But I digress. I do want to say congratulations to the member on a good law that will improve the law on what is not just a topical issue but an important one.

Tēnā koe, Mr Speaker. Otirā, tēnā tātou katoa. Can I first start my contribution this evening by also acknowledging the member Louisa Wall. I have been involved in discussions around your development of this bill from the very beginning, and I was reading some of the Hansard from last year, actually—it’s been on hold until this point, so it’s great to see it back in the House. But the Minister of Justice at the time, the Hon Andrew Little, described this as a well-thought-out, deeply principled, well-crafted, well-drafted member’s bill, and I know that when you brought the issue to our attention, we were grappling with some of the challenges of modern society and of technology, where you talked about high-profile cases. But what alarmed me in doing research for tonight’s speech was not just those high-profile cases but the many, many cases that perhaps many of us are not aware of, and just how widespread this issue actually is.

I agree with the Hon Simon Bridges that the member Louisa Wall is a very passionate and strong advocate, and I think if you manage to convince Louisa to take an issue on your behalf and then you have the luck of the biscuit tin, your issue is probably going to get over the line. So I do want to acknowledge you, Louisa, for that, and I want to repeat that this is a well-thought-out, deeply principled, well-crafted, and well-drafted member’s bill. So I am really pleased to be able to stand here this evening in support of it.

I was startled by the information that, according to NetSafe, 6 percent of New Zealanders—that number is 300,000 people—have had intimate images or recordings shared without their consent. I have not been one of those people, but I put myself in their shoes and thought about what that must feel like. As I went on to read the description of the impact, the trauma, that this can cause for people, I think we can actually all feel that, even if we haven’t experienced it, and it would only be heightened by actually experiencing it.

So why we support this bill: obviously, we believe that revenge porn is a form of abuse of somebody else, and that is the message that you gave to us when you were presenting the issue and saying why it needed a solution. In the legislation as it currently is, the threshold to prove the impact that it has had on you is so high. As we can see from some of the statistics, since the Act came into force in 2015, just 196 people—this is in 2020, so it might be a little bit outdated—had been convicted, and 87.8 percent of those convictions were men, and that was for everything under that Act, not just the specific intimate images.

So what does the bill do? Revenge porn is currently covered by the broad offence of posting harmful digital communications, which is created by section 22 of the Act, but under the current law, there is a requirement for the perpetrator to have intended to cause harm. The victim has to prove that they have suffered harm of serious emotional distress, and as we have heard in the debate tonight, there have been varying judgments from judges in terms of that in meeting that threshold. However, what this bill will do is accept that the posting of intimate images without somebody’s express permission—informed consent—is in itself a harmful act, whether that was intended by the perpetrator or not. So that changes it significantly, and I believe it will catch a lot more people. I heard one of the things in here, where to one person it could just be a joke, but to the other person—the victim—it’s caused serious harm.

So we support this bill because it is going to make it clear that the act of posting it without somebody’s permission is, in itself, a harmful act, and therefore they will be caught by the Act and the offences and the penalties within the Act. So I commend this bill to the House—and congratulations.

Louisa Wall—five minutes in reply.

Tēna koe e te Māngai o te Whare. Tēnā koutou katoa. And can I firstly acknowledge all colleagues across the House, and thank you all very much for the opportunity for this bill to be passed tonight, and then be referred to a select committee, which actually will enable victims and others who are interested in this kaupapa to make submissions about how relevant it is. And I’m also expecting additions to the bill. And I say that because the area that we’re talking about is evolving all the time.

And so as part of, I guess, my trying to understand the issue, I went and visited Associate Professor Wayne Rumbles and his team at Waikato University. He leads the Technology in Legal Education New Zealand project, which is funded by the New Zealand Law Society. The interesting thing about that engagement is that he absolutely supports this bill, but he was quick to highlight that there are missing elements in terms of digital communications, digital technologies, and specifically around deep fakes. And I wonder how many of us know what a deep fake is. Well, if you’re on TikTok, you will have seen it recently because Tom Cruise has been seen to be doing a whole lot of things, and the reality is it’s not Tom Cruise: it’s synthetic media. It’s artificial intelligence. And so the issue that we have, actually, is about how those platforms can be used to abuse.

And at this time I feel like I must acknowledge the Hon Judith Collins, because, in fact, this bill was her bill when she was the Minister of Justice. And in 2012 it was National who created the regime, and they did anticipate harm, which is why, within the Harmful Digital Communications Act, there were provisions to ensure that harm wasn’t perpetrated. Unfortunately, it just wasn’t fit for purpose. Just as we saw with the issue with our Māori wards bill, it wasn’t fit for purpose. It had an intention, everyone was clear that we knew we had to mitigate harm, but we have created a threshold that’s too high.

I guess I stand here also as a proud woman and a proud female member of this Parliament. And the reason I say that was—Willow-Jean Prime won’t know this but—I actually submitted this as part of White Ribbon in 2019, and I did it deliberately to end all forms of violence against women and girls. I think because of the kaupapa it was picked. It isn’t the devil that picks my bills, Simon Bridges, it’s our atua. And I have to say that every time I’ve put something in that needed to be debated in this House, it got picked. And so therein lies, I guess, an opportunity for all of us to do things that the community need, the community want, because ultimately, from my perspective, it is about our children, and it is about ensuring that they can use digital communication safely.

And I’m also anticipating that we need more education in this area. I actually don’t want to criminalise people. I want to change their behaviour. I want people to know that if you don’t have consent—no consent means no consent, don’t post it. If you do, then you’re actually committing a crime. I don’t want people to go to jail, but I think the other aspect of this bill—and we’ve had two cases recently that Anna Leask has highlighted, and at the moment a woman in Christchurch had to take civil court action to have a sex tape removed from the internet; six months later they’re still investigating. They’re yet to decide if the man will face criminal charges. Well, under this legislation it actually becomes crystal clear, and so the police need these tools as well.

But overall, I’m hoping that we can use this technology for good, not for bad. I do think, as I said before, there are aspects of this bill that are deficient. I look forward to those who are interested in this area making submissions. I particularly want to hear from principals and young people about how we can better educate them. Because the phenomenon of taking images of yourself and sharing them, including having sex, is now a form of foreplay. And Simon’s right, our kids are in a really vulnerable position if they don’t realise that by doing that those images may be around forever. And so we need a lot of work to ensure that our kids are safe and that our legislation is actually fit for the future. Kia ora.

Motion agreed to.

Bill read a first time.

The question is, That the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill be considered by the Justice Committee.

Motion agreed to.

Bill referred to the Justice Committee.