An amendment to the Harmful Digital Communications Act, which will make posting intimate images or recordings without the explicit consent of those in the images a criminal offence, has widespread support from politicians.
Labour List MP Louisa Wall who is behind the amendment told Q+A “consensus across the House is we think that consent should be the threshold and we shouldn’t have any harm, intention to harm, or actual harm thresholds and I think it’s a big step forward in preventing this type of sexual violence".
At the moment the act requires proof there was an intent to cause harm when such images were posted.
If the changes are passed, it would become a criminal offence to post intimate images and recordings without the explicit consent of those involved, deeming it a sex crime that can be punishable by up to three years in jail or a $50,000 fine.
In 2019, a Netsafe survey found five per cent of New Zealand adults - or 170,000 people - had been the victim of online image-based sexual abuse. 40 per cent of the time, the perpetrators were ex-partners.
“Obviously what we’re hoping is that there’ll be a chilling effect and people will change their behaviour,” says Wall.
However, the proposed changes don’t yet cover digitally altering images, sometimes called 'deepfakes'.
Wall says the Select Committee is waiting to hear from the Clerk of the House about whether the changes to cover 'deepfakes' would be allowed or require completely new legislation. “The majority of deepfakes - 97 per cent of it is used in pornography.
"It’s such a likeness that you would think it was the person, but because of the wording of the Harmful Digital Communication Act it has to be an actual recording of a person doing something.
"But deepfake is a synthetic construction that assumes someone has done something.
"It requires consideration of our laws to make sure we capture it. And what I’ve realised is that if we do capture it, we’ll be the first country in the world to do so,” Wall says. Included in the changes will be the ability for courts to order images be taken down, but platforms won’t be punished for publishing the images in the first place. “At the moment we rely on the goodwill of the providers.
"They’re explicitly excluded from being prosecuted.
"Netsafe does amazing work with those providers and they’re incredibly compliant, the police have told us so.
“So we’re not going to require them to do it legally by creating a regime where they may be financially penalised if they don’t,” Wall says.
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