The Tool Isn't Broken – The Wielders Are Corrupt

The Independent Police Conduct Authority's recent report into the handling of complaints against former Deputy Commissioner Jevon McSkimming has reignited debate about the Harmful Digital Communications Act 2015. The case is genuinely shocking: a young woman who alleged sexual assault and police corruption was arrested, charged under the HDCA, and silenced – while the senior officer she accused faced no investigation. That same officer has since pleaded guilty to possessing child sexual exploitation material on his work devices.

In response, some argue the HDCA itself is the problem. They call for its repeal, framing it as a weapon against free speech that must be dismantled. This analysis is dangerously wrong. It mistakes the corruption of a tool for a flaw in its design. It would strip vulnerable communities of essential protections because powerful people abused those protections to shield themselves from accountability.

The Ms Z case does not demonstrate that the HDCA is broken. It demonstrates that institutional corruption can pervert any legal mechanism, no matter how carefully designed. The solution is not to abandon digital harm protections. The solution is to hold accountable those who weaponised them.

Why Digital Harm Law Matters: Understanding the HDCA's Purpose

To understand why the HDCA must be defended, we must first understand the landscape of digital harm it was designed to address. The internet has fundamentally transformed how human beings interact, communicate, and harm one another. This transformation demanded legal evolution, not because lawmakers wanted to restrict speech, but because existing legal frameworks could not adequately respond to genuinely new forms of harm.

Digital communications differ from historical forms of communication in ways that profoundly affect their capacity to cause harm. They are permanent – content posted online can persist indefinitely, resurfacing years later to re-traumatise victims. They are replicable – a single image or message can be copied and shared thousands of times within hours, making removal practically impossible. They are instantaneously global – harassment that once required physical proximity can now be conducted from anywhere on earth. They are aggregable – multiple actors can coordinate to subject a single person to overwhelming volumes of abuse that no individual could perpetrate alone.

These characteristics create harm that simply could not exist before digital communications became ubiquitous. An intimate image shared without consent in 1985 might have been shown to a handful of people. The same image shared online in 2025 can reach millions and remain accessible forever. Historical defamation law addressed harm to reputation through false statements to limited audiences. Digital defamation can destroy someone's professional and personal life globally within hours. Stalking law assumed physical presence or direct contact. Digital stalking can be conducted remotely, persistently, and by multiple actors simultaneously.

The HDCA emerged from recognition that these new realities required legal responses. Its ten communication principles establish that digital communications should not deliberately cause harm through threats, offensive material, false information, or breaches of confidence. It provides a graduated response framework – from Netsafe's informal resolution processes through civil remedies to criminal sanctions for the most serious conduct. It balances protection of individuals against harm with protection of freedom of expression, requiring decision-makers to act consistently with the New Zealand Bill of Rights Act 1990.

This balance is not incidental but fundamental. The HDCA does not criminalise offensive speech per se. It addresses communications deliberately designed to cause serious emotional distress. It recognises that freedom of expression, while crucial, is not absolute – a principle well-established in New Zealand and international human rights law. Your freedom to speak does not extend to deliberately and seriously harming others through your speech.

The Disproportionate Impact on Marginalised Communities

Digital harm falls disproportionately on those already marginalised, and understanding this reality is essential to understanding why the HDCA matters. LGBTQIA+ people face coordinated campaigns of doxing, outing, and harassment designed to make their lives impossible. Trans people in particular experience targeted abuse, including deliberate deadnaming, misgendering, and exposure of personal details that endanger their safety and employment.

Women experience intimate image abuse at alarming rates, with ex-partners weaponising private images to control, shame, or destroy them. Young people face relentless cyberbullying that follows them from school to home, from platform to platform, making escape impossible. People from ethnic and religious minorities confront hate speech and harassment that targets their fundamental identity and right to exist in public spaces.

For these communities, digital harm is not abstract or theoretical. It is a daily reality that constrains their freedom, damages their mental health, endangers their physical safety, and limits their ability to participate fully in society. The HDCA provides them with legal recourse when that harm occurs. It allows them to seek removal of harmful content, obtain restraining orders against perpetrators, and in the most serious cases, pursue criminal sanctions.

Those calling for the HDCA's repeal rarely grapple honestly with what would replace these protections. If we abolish this legislation, what remedy exists for the teenager subjected to coordinated harassment across multiple platforms? What recourse does the woman have when her ex-partner posts intimate images to destroy her reputation and employability? What protection exists for the person whose address, workplace, and personal details are shared with hostile strangers?

The answer cannot be that these people simply lose access to legal protection because powerful individuals corrupted the law to serve their own interests. That response privileges those with power over those already vulnerable. It abandons victims of genuine harm to protect perpetrators from accountability.

The Inadequacy of Pre-HDCA Legal Frameworks

Some suggest that existing laws before the HDCA – defamation, harassment, privacy torts – could adequately address digital harm. This is demonstrably false. Each of these legal frameworks was designed for different contexts and different harms, and each proved inadequate to address the specific nature of digital communications.

Defamation law protects reputation through civil actions requiring plaintiffs to prove false statements caused reputational damage. But much digital harm does not involve false statements at all – intimate images shared without consent may be entirely authentic, yet cause devastating harm. Defamation remedies are also slow and expensive, requiring civil litigation that many victims cannot afford. By the time a defamation case concludes, the damage is done and the content has spread beyond practical recall.

Harassment law requires proof of specified conduct causing fear for safety. But much digital harm does not fit this framework. Systematic campaigns to destroy someone's reputation or employability may not involve explicit threats. Sharing intimate images may humiliate and traumatise without creating fear for physical safety. The harassment provisions also struggled with distributed perpetrators – how do you prosecute coordinated campaigns where hundreds of individuals each contribute small pieces to overwhelming abuse?

Privacy torts provide civil remedies for certain invasions of privacy, but again, the frameworks were inadequate. They did not specifically address non-consensual intimate image sharing. They provided no mechanisms for rapid content removal. They required expensive civil litigation beyond the reach of most victims.

The HDCA filled these gaps. It provided streamlined processes for content removal through Netsafe. It created specific criminal offences for the most serious digital harm, including non-consensual intimate image sharing. It established civil remedies accessible through the District Court. It enabled responses to coordinated campaigns by multiple perpetrators. It recognised that digital harm required digital-age legal frameworks, not awkward retrofitting of laws designed for different eras and different technologies.

What Actually Happened: A Case Study in Corruption, Not Legislative Failure

The IPCA report reveals a systematic failure by some of New Zealand's most senior police officers to act with integrity when faced with serious allegations against one of their own. When Ms Z sent emails alleging sexual assault, threats involving intimate images, and misuse of police resources by Deputy Commissioner McSkimming, senior officers accepted his narrative: that she was a "woman scorned" engaged in harassment. They treated her as a perpetrator, not as someone making serious allegations that required investigation.

The safeguards that should have prevented this corruption existed and functioned correctly – until they were deliberately circumvented. In February 2024, the Fixated Threat Assessment Centre analysed the emails and explicitly stated that some allegations were plausible and potentially criminal, recommending notification to the National Integrity Unit and the IPCA. This recommendation was ignored. In April 2024, Ms Z made three complaints through the 105 Police Non-Emergency Online Reporting portal – the official channel Police direct sexual assault victims to use. These reports were not processed according to standard procedures but were instead treated as further evidence against Ms Z in her prosecution.

The investigation deliberately bypassed Police Integrity and Conduct and avoided IPCA oversight. Officers with close professional relationships to McSkimming handled the case. Ms Z was arrested, charged under the HDCA, and silenced through bail conditions and suppression orders. The Crown withdrew the charge in September 2025 – but only after the IPCA investigation forced accountability.

The Tool Versus the Wielders: Why This Was Corruption, Not Legislative Failure

This sequence of events does not reveal a flaw in the HDCA. It reveals deliberate corruption of process by individuals who placed loyalty to a colleague above institutional integrity and public safety. Every safeguard in the system was deliberately circumvented by senior officers who knew they were acting improperly.

The FTAC report was clear about what should happen. The 105 reporting system functioned correctly. Integrity and Conduct attempted to follow proper procedure. The IPCA was available for notification. Multiple officers raised concerns. The system had the tools to prevent this miscarriage of justice. Those tools were deliberately set aside by senior officers protecting one of their own.

This distinction matters profoundly. If the HDCA itself enabled this outcome – if the legislation was so poorly designed that it inevitably leads to such abuses – then reform or repeal might be justified. But that is not what occurred. The Ms Z prosecution was possible not because the HDCA is flawed, but because people with power chose to corrupt every process designed to ensure accountability and independence.

This reality should inform our response. Any legal mechanism can be weaponised by bad actors with sufficient power and insufficient oversight. Employment law can be used to silence whistleblowers. Defamation law can suppress legitimate criticism. Privacy law can shield wrongdoing from scrutiny. The solution in each case is not to eliminate the legal protection but to strengthen accountability mechanisms and ensure robust independence in their application.

The HDCA's design includes numerous safeguards against abuse. Netsafe operates independently of government and Police. The District Court provides judicial oversight of applications for orders. The criminal provisions require proof beyond reasonable doubt. The Act mandates consistency with freedom of expression protections in the Bill of Rights Act. These safeguards were not insufficient – they were deliberately bypassed by officers who controlled the process and faced no effective oversight.

Power, Corruption, and the Need for Accountability

What made the Ms Z prosecution possible was not the HDCA's existence but the concentration of power in the hands of people willing to abuse it. McSkimming was a Deputy Commissioner with direct authority over Police Prosecution Services and close professional relationships with other members of the executive. When Ms Z tried to report through official channels, those channels were controlled by the institution he helped lead.

This is precisely why institutional independence and oversight mechanisms exist. It is why we have the IPCA. It is why Police Integrity and Conduct operates as a separate unit. It is why serious allegations against senior officers should trigger automatic external review. These structures recognise that power creates conflicts of interest and that conflicts of interest corrupt judgment. In the Ms Z case, every one of these safeguards was deliberately bypassed.

The problem was not that the HDCA provided tools for addressing digital harm. The problem was that senior officers with conflicts of interest controlled the investigation and prosecution processes, faced no meaningful accountability, and chose to weaponise those tools rather than properly investigate serious allegations of criminal conduct.

The Ongoing Injustice and the Urgent Need for Action

Astonishingly, Police are pursuing a second HDCA prosecution against Ms Z. Even after the IPCA's devastating findings. Even after the Crown withdrew the first charge. Even after McSkimming's convictions for possessing child exploitation material. The continuation of this prosecution is not merely unjust – it is an obscenity.

Every day this prosecution continues is another day in which the New Zealand state actively punishes a young woman for attempting to report serious crimes by a senior police officer. It sends a chilling message: if you accuse powerful people of wrongdoing, we will use every tool available to make you regret it. This prosecution must be dropped immediately and unconditionally. There is no public interest in continuing it. There is no justice served by it. There is only the vindictive exercise of state power against someone who tried to hold a corrupt officer to account.

Defending Essential Protections, Demanding Accountability

The calls to repeal the HDCA mistake the nature of the problem entirely. They would remove protections that countless New Zealanders desperately need because senior police officers weaponised those protections against someone trying to report crimes. This is precisely backwards. The solution to police corruption is not to strip away legal remedies for digital harm. The solution is to hold corrupt officers accountable and to strengthen the independence and oversight mechanisms that exist to prevent such abuses.

We must be clear about what repealing the HDCA would mean. It would mean abandoning victims of intimate image abuse, doxing, and coordinated harassment to fend for themselves with inadequate legal tools. It would mean accepting that women whose ex-partners post intimate images have no effective recourse. It would mean leaving young people subjected to relentless cyberbullying without protection.

These consequences would fall hardest on those already marginalised and vulnerable. They would fall on people who lack the resources, power, and platforms to defend themselves. They would privilege perpetrators of digital harm over their victims, all because we failed to distinguish between a necessary legal tool and its corrupt application.

The HDCA provides essential protections for genuine victims of digital harm. It recognises that the digital age created new forms of harm requiring new legal responses. It balances protection against harm with protection of freedom of expression. It includes safeguards against abuse – safeguards that were deliberately circumvented in the Ms Z case by people with power and conflicts of interest.

We should be outraged by what happened to Ms Z. We should demand accountability from every officer who enabled this miscarriage of justice. We should insist on reforms that make such corruption harder to perpetrate and easier to detect. We should ensure that whistleblowers and complainants have stronger protections when reporting institutional wrongdoing. We should strengthen independence and oversight mechanisms. We should ensure that conflicts of interest are identified and managed. We should create explicit protections for people reporting crimes through official channels.

But we should not abandon the HDCA. We should not remove legal protections for victims of digital harm because those protections were corruptly wielded against someone who needed protection herself. We should not privilege free speech absolutism over the genuine need to address harmful conduct that silences, intimidates, and destroys vulnerable people.

The tool isn't broken. The wielders were corrupt. Any legal mechanism – defamation law, employment law, privacy law, harassment law – can be weaponised by bad actors with sufficient power and insufficient accountability. The solution is never to eliminate the legal protection. The solution is always to strengthen accountability, ensure independence, and hold wrongdoers responsible for their corruption.

The HDCA serves essential purposes. It provides remedies for real harm. It protects vulnerable people from devastating abuse. It recognises that freedom of expression, while fundamental, does not extend to deliberately destroying others through digital communications. These purposes remain valid regardless of how senior police officers corrupted the Act's application in a single case.

Let us direct our anger and our reform efforts where they belong: at the individuals who corrupted the process, at the institutional structures that enabled their corruption, at the ongoing injustice of the second prosecution against Ms Z. Let us strengthen safeguards, enhance independence, and ensure accountability. But let us not abandon essential protections for victims of digital harm. Let us not mistake the corruption of a tool for a flaw in its design.

The HDCA is necessary. Its abuse was unconscionable. Both things are true. Our response must acknowledge both realities: defending the law while demanding accountability for those who corrupted it.

Rights Aotearoa is New Zealand's leading non-governmental organisation devoted to promoting and defending universal human rights with a focus on transgender, non-binary, and intersex rights.