The yet-to-be-named bill, due to be introduced to parliament at the end of the year, refers to a range of stalking behaviours, including “the use of technology in modern stalking 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 harm others

Cyberstalking is the repeated use of digital tools to harass, coerce, intimidate or intimidate another person. It can include using social media, GPS tracking 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 photos or videos of someone without consent.

Although it often coincides with offline stalking, cyberstalking is unique in that the perpetrators do not need to share the same physical space as the victim in order to harm them.

Because of the central role technology plays in our lives, cyberstalkers can create such a sense of presence that their victims feel they cannot escape them.

Like offline stalking, cyberstalking occurs mostly in the context of intimate partner violence or dating violence – and this is what the government has focused on.

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

Overlapping rules

The full text of the proposed legislation has not yet been released. However, from what has been notified, there is some potential overlap with 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 recording without consent.

These offenses cover certain aspects of cyberstalking, such as threatening messages, harassment or revenge porn. But they don’t cover others like monitoring or tracking someone, or locking someone out of their social media accounts.

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

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

This signals that cyberstalking will be treated as more serious than crimes 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 they are repeated.

Given the gendered nature of cyberstalking, taking women’s fears seriously in this way is positive and significant. 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 crime will require evidence that the victim feared for his safety. As victims’ advocate Ruth Money has noted, requiring proof of emotional harm forces the victim to prove their experience.

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

However, given the gendered nature of cyberstalking, there are limitations to this as well. The “reasonable person” standard does not readily include 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, every stalking crime must be defined in a way that is future-proof as “all stalking facilitated by technology”.

Emerging technologies will undoubtedly introduce new ways of cyber stalking and harassment. Advances in AI (artificial intelligence), for example, already facilitate image manipulation or generation without consent.

The mix of virtual and augmented realities introduces new challenges to dealing with harassment in what is often referred to as the “metaverse.”

A blunt instrument

Overall, the proposed law is a step in the right direction to address 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. For example, HDCA has done little to stop the rise of online harassment.

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