The bill, which is still to be presented to Parliament by the end of the year, refers to a range of harassing behaviors, including “the use of technology in modern methods of harassment.”

If passed, the new law will make “cyberbullying” illegal, bringing New Zealand in line with other countries including the UK and Australia.

But while this legislation is welcome, there are still issues to be resolved to ensure the law is relevant to where the technology is today – and where it might develop in the future.

Using technology to hurt others

Cyberbullying is the repeated use of digital tools to harass, coerce, frighten or intimidate another person. This may include using social media, GPS tracking, or spyware tools to covertly monitor a person’s location or conversations.

It also includes repeatedly sending unwanted messages or threats, posting personal information about someone online (also known as “doxxing”), creating fake social media accounts to spread false information about someone or sharing intimate images or videos of someone without their consent.

Although it often coincides with offline harassment, cyberbullying 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 like they can’t escape it.

Like offline harassment, cyberstalking mainly occurs in the context of domestic violence or dating violence – and that’s 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 are victims of significant cyberstalking and online harassment.

Overlapping rules

The full text of the bill has not yet been published. But based on what has been announced, there is some potential overlap with breaches of the Harmful Digital Communications Act 2015 (HDCA).

Under the HDCA, it is an offense to post a harmful digital communication with the intent to cause serious emotional distress. It is also a crime to publish an intimate visual recording without consent.

These offenses cover certain aspects of cyberstalking, such as threatening messages, stalking or revenge porn. But they don’t cover others, like monitoring or following a person, or excluding someone from their social media accounts.

The maximum penalty for these offenses is two years’ imprisonment or a fine of up to $50,000.

The new criminal harassment offense “will encompass patterns of behavior, i.e. three specific acts occurring within a 12-month period”, and will carry a maximum penalty of five years’ imprisonment.

This indicates that cyberstalking will be treated as more serious than offenses under the HDCA.

Limitations of the new law

The new offense focuses on patterns of behavior over a period of time, transforming acts that could be caught by the HDCA into something more serious due to their repetition.

Given the sexist nature of cyberbullying, taking women’s fear seriously in this way is positive and meaningful. But the government must also review the HDCA to ensure there are no unintended gaps between the two laws.

Additionally, it is unclear whether the offense will require proof that the victim feared for their safety. As victim advocate Ruth Money pointed out, requiring proof of emotional harm requires the victim to testify about their experience.

Instead, the offense should require proof that a “reasonable person” would fear for his or her safety, Money argued.

But given the sexist nature of cyberbullying, it also has limitations. The “reasonable person” standard does not easily accommodate the gendered aspects of abuse – the specific ways in which women are targeted.

To address this problem, the new law could include a list of factors providing guidance on what would cause a reasonable person to fear for their safety.

Finally, any criminal harassment offense must be permanently defined as “any criminal harassment facilitated by technology”.

Emerging technologies will undoubtedly introduce new ways of cyberstalking and harassment. For example, advances in AI (artificial intelligence) are already making it easier to manipulate or generate non-consensual images.

The blending of virtual and augmented realities introduces new challenges to combating harassment in what is often called the “metaverse.”

A blunt instrument

Overall, the proposed law is a step in the right direction to combat certain aspects of online abuse.

But it is important to note that criminalization is a blunt instrument for controlling behavior and often does not coincide with deterring that behavior. The HDCA, for example, did little to stop the rise of online harassment.

To truly combat cyberbullying, the government must examine the root causes of this behavior, including pervasive sexism in the technology development industry and elsewhere.