Criminalising "revenge porn": Did the Harmful Digital Communications Act get it right?

Abstract

This essay examines the problem of revenge pornography (“revenge porn”) in New Zealand. It argues that the Harmful Digital Communications Act 2015 provides an insufficient remedy due to its broad wording, and that the intention and harm requirements of the offence are problematic. This essay advocates for the introduction of a specific revenge porn offence to be inserted into the New Zealand Crimes Act 1961. It begins by exploring revenge porn’s impact on victims, and discusses the current legal remedies available here and in comparative jurisdictions. It then proposes a new offence that would focus on the elements of the revenge porn act itself, rather than requiring that the perpetrator intends to cause harm and that the victim actually suffers harm. This essay argues that the introduction of such an offence would provide an effective deterrent for initial and subsequent disclosers of revenge porn alike, and clarify the scope of revenge porn in New Zealand for victims, perpetrators, and the courts. Further, such an offence would place a reasonable limit on freedom of expression and send a clear social message as to revenge porn’s criminal nature.