High Court upholds first appeal under Harmful Digital Communication Act

The High Court has upheld the first appeal under the Harmful Digital Communication Act, saying posting intimate images on Facebook met the harm threshold detailed in the act.​

Justice Matthew Downs quashed an original decision to discharge, and said there was merit in the case continuing.

In the original decision, a man was charged with breaching a protection order in relation to his estranged wife and causing her harm through posting photos on Facebook.

According to the appeal document, the man said he would post photos of the woman online if she did not stay away from other men, and told her to cancel the protection order.

A friend of the woman's then found "not very nice pictures" of her on Facebook. The woman identified them as being ones she had taken of herself after she had separated from her husband, saying they were personal.

She did not know how her husband had the photos.

The woman contacted the police and Facebook, and made a police complaint.

The man admitted posting the photos when interviewed by police.

In the original case, Judge Colin Doherty was satisfied there was sufficient evidence to establish the man had posted a digital communication with intent to cause the woman harm, but concluded that the evidence could not establish the communication caused harm as defined by the act.

In quashing the decision to discharge the man, Justice Downs said the Judge "erred by failing to consider the unchallenged evidence in its totality, and without reference to context".

The man posted two images of his estranged wife to Facebook, using a name similar to her username.

The photos showed the woman lying on a bed, with the lower part of her face, unclothed right shoulder, upper right arm and part of her bottom or leg visible. In the lower left-hand corner of the image was a smaller photo showing the woman's upper body and lower half of her face, and she was wearing only a bra.

The woman gave evidence of how the posting of the photos affected her, but Judge Doherty concluded the evidence could not sustain serious emotional distress, saying: "It is not enough to prove that the digital communication would cause harm to an objective person".

"The prosecution must establish that the communication did, in fact, cause harm to the victim."

Justice Downs found the Judge erred in concluding the evidence could not establish harm.