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Author: Cassandra Mudgway, Senior Lecturer in Law, University of Canterbury
Original article: https://theconversation.com/nzs-proposed-anti-stalking-law-is-good-news-but-it-must-be-future-proofed-against-rapidly-evolving-technologies-243465
Given the ever-increasing problem of digital harm, the government’s proposed legislation criminalising stalking is welcome news.
The yet-to-be-named proposed law, set to be introduced to parliament by the end of the year, refers to a range of stalking behaviours, including the “use of technology in modern stalking methods”.
If passed, the new law will make “cyberstalking” illegal, bringing New Zealand in line with other countries, including the United Kingdom and Australia.
But while the legislation is welcome, there are still issues to be addressed to ensure the law is relevant to where the technology is now – and where it could develop in the future.
Using technology to hurt others
Cyberstalking is the repeated use of digital tools to harass, coerce, frighten or intimidate another person. It can include using social media, GPS tracking or spyware tools to covertly monitor someone’s location or conversations.
It also includes sending repeated unwanted messages or threats, posting someone’s personal information online (also known as “doxxing”), setting up fake social media accounts to spread false information about someone, or sharing intimate images or videos of someone without consent.
Although it often coincides with stalking offline, cyberstalking is unique in that perpetrators do not need to share the same physical space as the victim to harm them.
Because of the central role technology plays in our lives, cyberstalkers can create such a sense of omnipresence that their victims feel they cannot escape them.
Like offline stalking, cyberstalking mostly occurs in the context of intimate partner violence or dating violence – and this is what the government has focused on.
But the proposed legislation would also cover incidents of cyberstalking by strangers. This would give police more options when it comes to helping public figures who experience significant cyberstalking and online harassment.
Overlapping rules
The complete text of the proposed legislation hasn’t been released yet. But from what has been announced, there is some potential overlap with offences under the Harmful Digital Communications Act 2015 (HDCA).
Under the HDCA, it is an offence to post a harmful digital communication with an intent to cause serious emotional distress. It is also a crime to post an intimate visual recording without consent.
These offences cover some aspects of cyberstalking, such as threatening messages, harassment or revenge porn. But they do not cover others such as monitoring or tracking someone, or locking someone out of their social media accounts.
The maximum sentence for these offences is two years imprisonment or a fine of up to NZ$50,000.
The new stalking offence “will capture patterns of behaviour, being three specified acts occurring within a 12-month period”, and will have a maximum sentence of five years imprisonment.
This signals that cyberstalking will be treated as more serious than offences under the HDCA.
Limits of the new law
The focus of the new offence is on patterns of behaviour over a period of time, transforming acts that might be captured under the HDCA into something more serious because of their repetition.
Given the gendered nature of cyberstalking, taking women’s fear seriously in this way is positive and significant. But the government also needs to review the HDCA to ensure there are no unintentional gaps between the two laws.
As well, it’s unclear whether the offence will require proof the victim feared for their safety. As victims advocate Ruth Money has noted, requiring proof of emotional harm forces the victim to give evidence about their experience.
Instead, the offence should require proof that a “reasonable person” would fear for their safety, Money has argued.
Read more:
Technology-facilitated abuse: the new breed of domestic violence
But given the gendered nature of cyberstalking, there are limitations with this, too. The “reasonable person” standard does not easily incorporate the gendered aspects of abuse – the specific ways in which women are targeted.
To address this, the new law could include a list of factors to provide guidance on what would lead a reasonable person to fear for their safety.
Finally, any stalking offence must be defined in a way that is future-proofed as “any stalking facilitated by technology”.
Emerging technologies will undoubtedly introduce new ways to cyberstalk and harass. For example, AI advances are already facilitating non-consensual image manipulation or generation.
The blending of virtual and augmented realities introduces new challenges for addressing harassment in what is often called the “metaverse”.
A blunt instrument
Overall, the proposed law is a step in the right direction for addressing aspects of online abuse.
But it is important to note that criminalisation is a blunt instrument to control behaviour, and often does not coincide with deterrence of that behaviour. The HDCA, for example, has done little to stop the rise of online harassment.
To really address cyberstalking, the government needs to examine the root causes behind the behaviour – including pervasive sexism in the technology development industry and elsewhere.