No Right to be Forgotten under Harmful Digital Communications Act

In a recent decision under the Harmful Digital Communications Act 2015, the District Court has declined to order that Fairfax take down a 2008 article from its Stuff website.

The applicant, Mr Wensor, claimed that the article about his criminal conviction in Brisbane, in respect of events that took place in 2006, was harmful ("seriously emotionally distressful"), as defined in the HDC Act). He had complained to Netsafe first, as required under the Act, but, despite Netsafe's assistance in its role as approved agency under the Act, the parties had failed to resolve the issue (presumably because Fairfax refused to take the article down).

The Court notes that freedom of speech is specifically called out in the Act and includes the news media's ability to accurately report Court proceedings. This, it says, outweighs a breach of communications principle 1 ("A digital communication should not disclose sensitive personal facts about an individual") and therefore any any harm caused.

Unfortunately, the decision was made on the papers and there is no specific discussion of privacy issues or the so called "right to be forgotten" that has been found to apply in Europe. However, on the basis of this decision, it appears that the fears of some that the HDC Act would be used to chill free speech are not being borne out, and those seeking to expunge unhelpful past history from their online record in New Zealand will have to find another route, at least for the moment.

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