Tightening the Noose on Forwarding Nudes: The Harmful Digital Communications Amendment Bill

By Isaac Lam

Submissions are open for an amendment changing how the law criminalises uploads of intimate recordings without consent. Here’s what you need to know, and why you should care.

Sending nudes is nothing new, and has only become more common during the COVID-19 pandemic and subsequent lockdowns. For those separated from their significant other or looking for a socially-distanced fling, going virtual was the only option. It might come as an unpleasant surprise to know then, that when someone shares your intimate photos without your consent, the current answer to whether legal action against them is possible is: “it depends”.

The Current Law

While the sharing of intimate photos and videos without consent is criminalised under the Harmful Digital Communications Act 2015 (HDCA), the requirements for conviction are complicated.  Under HDCA section 22(1), for the upload of a digital communication to be an offence, the court must find the content was uploaded with the intention to cause harm to the victim; posting the content would cause reasonably foreseeable harm to someone in the victim’s position; and posting the content actually did cause harm to the victim.

Intention

Establishing intention to harm is not only difficult, it often misses the point. The 2015 laws were intended to tackle cases of revenge porn: where intimate recordings are shared or threatened to be shared with specific coercive intent. However, intimate recordings are frequently shared non-consensually without an explicit intention to harm the victim. Many (predominantly male) offenders do so for the personal bragging rights that come from showing off their sexual exploits. School-aged children in particular often do so because they don’t know better, not because they intend to cause harm. Ignorance should be no excuse, yet such cases are not captured under section 22(1).

Subjectivity

Judges have full discretion to determine if the threshold of causing reasonably foreseeable harm is met, and what factors to consider. This can, and has, led to inconsistent decision making, likely swayed by subjective morality in a way unlikely to favour the targeted individual.

A 2019 Netsafe NZ report highlights most victims of non-consensual intimate content uploads are 18-29-year-olds, many of whom identify as LGBTQ+. There is also overrepresentation of young victims identifying as Asian which, as recent events have reminded us, is likely due to the prevalence of orientalist fetish tropes informing attitudes towards Asians in the West, including in New Zealand.

It’s therefore problematic for the predominantly white, middle-aged, male, heterosexual judiciary to use their discretion to make subjective decisions about a victim who likely already feels violated, distressed and vulnerable as a minority. This can discourage individuals who are struggling with their trauma or sexuality from pursuing justice.

Inefficiency

Victims who do pursue a conviction are met with a long, exacerbating and expensive process. Most of the evidential burden lies on the victim bringing the case. They must prove the perpetrator intended to cause the harm done to them, and that the upload caused a certain threshold of harm. This means revisiting and disclosing traumatic memories.

This is what a woman from Christchurch had to go through when intimate footage of her was uploaded online. Despite clear statements she had not consented, and the uploader admitting to his actions in the civil courts, the police took over 6 months to make a conviction. In the meantime, the woman had to pursue a civil claim for an injunction to have the content taken down, which was stressful, expensive, and arguably what the HDCA should have facilitated in the first place.

The Proposed Amendment

Fortunately, change may be on the way. The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill creates a new offence for posting an intimate visual recording without consent. No longer would an intention to harm or a certain degree of harm have to be established for a conviction. Under the new section 22A, the focus is entirely on the lack of consent.  

Emphasis on Consent

The amendment specifies “express consent” must be voluntary and with full knowledge of where and how the recording will be posted. This shifts the evidential burden onto the uploader to prove consent, which makes pursuing a conviction substantially easier for the distressed individual. The recklessness standard in subsection (2) also means uploaders cannot claim there was assumed or implied consent, which can often be difficult for the victims of emotionally abusive relationships to argue against.

Third Parties and Strangers

Under the amendment, third-party strangers who repost non-consensually uploaded images can also be held liable, even if they claim they did not know the victim and so could not get consent. This would count as acting reckless to the subject’s consent.

The amendment would also help address the unauthorized re-publication of intimate images initially uploaded with consent. Subsection (5) notes that consent to an upload for one occasion or use cannot be imputed to apply to another. This would also pre-emptively address ‘slut-shaming’ arguments – claiming implied consent from the subject having posted other intimate photos online. In an era where homemade pornography production through platforms like OnlyFans is becoming more accessible and commonplace, this is important to protect digital sex workers from the re-distribution of their private images.

Supplementing Section 22

Section 22A does not repeal or overwrite the previous revenge porn laws in section 22. An individual could therefore be charged under both sections simultaneously. This acknowledges that the coercive intent of revenge porn makes the offense more severe, while recognizing that even without coercive intent, having intimate images shared without consent can be deeply distressing.

Conclusion

Overall, this amendment makes a welcome statement about consent in sexual relationships, and would make justice more accessible for the distressed victims of image-based sexual abuse. Fortunately, all major political parties supported this iteration of the bill during its first reading. However, it is unlikely the bill would pass just as it is. MP Louisa Wall, who nominated the bill, has noted the Select Committee wishes to explore issues around new technologies like deep fakes, and how these could be implemented under the amendment. More clarification may also be useful on the position of third parties. It is currently unclear whether consent could be transferrable to a third party who re-uploads an intimate image under circumstances identical to what was initially consented to by the subject.

Submissions for the amendment will remain open until Friday, 23 April 2021. You can make a submission on Parliament’s website here. 

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Featured image source: CHOC.org