The to-be-named bill, due to be introduced to Parliament by the end of the year, covers a range of tracking behaviours, including “the use of technology in modern tracking methods”.

If passed, the new law will make “cyberstalking” illegal, bringing New Zealand in line with other countries including the UK 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 might 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 trackers, or spyware to secretly 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”), creating 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 offline stalking, cyber stalking is unique in that the bullies do not have to share the same physical space with 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 that’s what the government has focused on.

But the proposed legislation would also cover incidents of cyber stalking by foreigners. This would give police more options when it comes to helping public figures facing significant cyberstalking and online harassment.

Overlapping rules

The full text of the proposed law has not yet been published. But from what has been announced, there is a potential overlap with the offenses under the Harmful Digital Communications Act 2015 (HDCA).

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

These offenses cover some aspects of cyberstalking, such as threatening messages, harassment or revenge pornography. But it doesn’t cover others like monitoring or following someone or blocking someone from their social media accounts.

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

The new stalking offense “will capture patterns of behaviour, being three specified acts occurring within a 12-month period”, and will carry a maximum sentence of five years in prison.

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

The limits of the new law

The focus of the new offense is on patterns of behavior over a period of time, turning acts that could be caught under the HDCA into something more serious because of their repetition.

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

It is also unclear whether the offense will require proof that the victim feared for their safety. As victims’ advocate Ruth Money noted, requiring proof of emotional harm forces the victim to testify about their experience.

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

But given the gendered nature of cyberstalking, there are also limitations to this. The “reasonable person” standard does not readily 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 cause a reasonable person to fear for their safety.

Finally, any stalking offense needs to be defined in a way that is future-proof as “any stalking facilitated by technology.”

Emerging technologies will undoubtedly introduce new ways of stalking and cyberbullying. For example, AI advances already make it easier to manipulate or generate non-consensual images.

The combination of virtual and augmented realities introduces new challenges for addressing bullying in what is often called the “metaverse.”

A blunt instrument

Overall, the proposed law is a step in the right direction for addressing online abuse.

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

To truly address cyberstalking, the government needs to examine the root causes behind the behavior – including pervasive sexism in the technology development industry and elsewhere.