Chapter 7 - Free speech abuses: quantifying the harms and assessing the remedies
No matter how offensive to some, not all the speech abuses outlined in this chapter would meet the threshold of an offence. Like most Western democracies, New Zealand regards freedom of expression as the cornerstone of all other democratic freedoms. This concept has been enshrined in statute since the passage in 1990 of the New Zealand Bill of Rights Act. Section 14 of the Act provides:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
According to section 5, that freedom, like all others in the New Zealand Bill of Rights Act, should be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
However, freedom of expression is not an absolute right. For example there is no protection for speech which is intended to incite racial violence. Nor do we protect speech which unjustifiably damages a person’s reputation or invades their right to privacy. As a society we also have an interest in protecting the integrity of the justice system and a person’s right to a fair trial. To achieve those ends, it is sometimes deemed necessary to delay or limit freedom of expression.
Some of the free speech abuses we traversed in the first part of this chapter would seem to fall squarely within these categories of prohibited or restricted speech. Others present more complicated challenges and may not fit neatly within the framework of the existing law, or may not meet the current threshold for an offence. Although many of the behaviours we are seeing on the internet mirror off-line behaviours, it is abundantly clear that the internet and its associated technologies have created an environment where the scale, sophistication and severity of speech-related harms is potentially much greater than in the pre-internet era. A prime example of the heightened harms capable of being inflicted through the use of new publishing technology can be seen in the British case discussed at paragraph 7.58.
In the following discussion we ask two questions:
- are the various criminal, civil and regulatory rules and remedies that deal with speech abuses suited for the web 2.0 era?
- how effective are the non-legislative remedies that operate within online communities, including the systems of online reporting employed by social media sites such as Facebook?
We begin by surveying the existing laws that deal with communication and outline the various offences that already exist and provide some examples of how they have been applied to internet publishing in New Zealand. We then consider the limitations in the existing laws, including definitional problems and gaps in the law and the problems of access and enforcement.
What the law says
The laws which define the circumstances in which freedom of expression may justifiably be constrained are a mix of statute law made by Parliament, and judge-made or common law. Alongside the public sanctions imposed by the criminal law, citizens may also have the right to pursue a private, or civil action against another party when they have been harmed by another person’s speech.
These various branches of the law have evolved differently and reflect different legal and policy principles. Some statutes were written long before the internet era; others have been drafted with an eye to changes in media and communication technologies or in response to novel problems associated with these technologies.
In contrast the common law has evolved over many centuries. Being judge-made it is flexible, and can adapt more readily to new contexts and social problems than the more rigidly defined statute law.
All our laws are a product of a specific social and political context and reflect our changing values, including, most crucially, the manner in which we weigh the interests in free speech against other public and private interests. For example our statute book includes some offences which may be so obsolete as to merit reform or repeal. The law of blasphemy is, in some people’s opinion, one of those.246 Two others, sedition and criminal libel, were repealed some time ago.247
As noted the Bill of Rights Act has had a profound effect on how the courts weigh free speech against other interests.
Many of the offences discussed below were created by statutes which predate the Bill of Rights Act. Almost all predate the advent of the internet. However, as we shall see, our existing statute, common, and civil law provides, in theory at least, a wide range of potential remedies for the types of harm we have described in the first part of this chapter.
The criminal law deals with offences which are investigated by the police and which attract public sanctions imposed by the state through the criminal courts. With one exception, the criminal law of New Zealand is the creature of statute. We have not for the purposes of this Issues Paper attempted a comprehensive review of our New Zealand statute law. Rather we have gathered together the provisions which are of main relevance to the kinds of harms we have detected.
Prohibited uses of speech against a person
We have noted above the use of the new media to threaten and frighten people. A number of statutory provisions deal generally with threatening conduct. It is an offence, for example, to threaten to kill or cause grievous bodily harm,248 or threaten to destroy property or destroy or injure an animal,249 or to threaten to do an act likely to create a risk to the health of one or more people with intent to cause serious disruption.250
There is also an offence of intimidation which provides that every person commits an offence who with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that person reasonably to be frightened or intimidated, threatens to injure that person or any member of his or her family, or to damage any of that person’s property.251 The crime of blackmail also falls under this head. It is constituted by threatening to disclose something about a person with the intent of obtaining a benefit.252 The threat can be communicated in any way.
The generality of these offences means that they will normally be adequate to deal with threats however communicated – by new media or otherwise. Earlier in this chapter we outlined a number of New Zealand police investigations which have resulted in prosecutions for threats made on the internet.253
In the same vein, New Zealand has a number of statutes which specifically proscribe harassment. Under the Harassment Act 1997 it is a criminal offence to harass another person with intent to cause that other person to fear for their own safety or the safety of a family member.254 Harassment is defined in some detail.255 It can be constituted, among other things, by making contact with a person, whether by telephone, correspondence or in any other way, or giving offensive material to a person or leaving it where it will be brought to the attention of that person, or acting in any other way that causes the person to fear for their safety. There may be a question whether these provisions, which were enacted in 1997, are sufficiently clear to cover harassment by new electronic means of communication. We shall address this question in the next section.
The Telecommunications Act 2001, section 112, provides that every person commits an offence who uses or causes or permits to be used, any telephone device for the purpose of disturbing, annoying or irritating any person. “Telephone device” is defined as “any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication”. Whether this applies to any communication via computer is not absolutely clear. We shall return to this point also in the next section.
Sexual and offensive matter
The Office of the Privacy Commissioner and NetSafe told us of instances where people have approached them for help after someone had posted intimate photographs or film of them on Facebook pages or websites, particularly after the breakup of a relationship.
The Crimes Act 1961 provides that it is an offence to publish intimate pictures of someone taken covertly without that person’s consent.256 But that prohibition only applies where the filming itself took place without consent: it does not extend to pictures taken with consent but published without consent. Sometimes the latter situation may be caught by other provisions. Section 124 of the Crimes Act renders it an offence to distribute to the public “any indecent model or object”. In 2010 the Crown successfully used this provision in the Crimes Act to bring charges against a 20-year-old Wellington man who posted nude photographs of his former girlfriend on her Facebook profile.257
The Films, Videos and Publications Classification Act 1993 also renders it an offence to be party to an objectionable publication,258 the term “objectionable” being defined in some detail in that Act.259 The essence of it is that the publication is likely to be injurious to the public good. Finally, section 131B of the Crimes Act 1961 deals with a related matter. It renders it an offence to for a person to intentionally meet a young person under the age of 16, having met or communicated with them previously, if at the time of doing so he or she intends to engage in unlawful conduct with that young person. The sexual grooming which culminates in this way will commonly have been undertaken via the social media.
It is a criminal offence to incite the commission of another offence. If the offence is in fact committed, the inciter is a party to it.260 If it is not, the incitement itself is criminal and renders the offender liable to a penalty of half that attaching to the offence itself.261 This could cover such matters as incitements to damage property, to engage in riot, or to injure someone.
As the riots and looting in England in August 2011 demonstrate, the new media – Twitter for example – can be a potent avenue of incitement. Inciting racial disharmony is a separate offence under the Human Rights Act 1993.262 It is also a separate offence to publish a description of how to manufacture a firearm or explosive.263 It is an offence also to incite a person to commit suicide, if the person in fact commits, or attempts to commit, suicide;264 or to aid or abet a person in the commission of suicide.265 Suicide pacts also constitute an offence, but only if one or more persons in fact carry out the pact.266
We have in other contexts discussed whether identity crime is sufficiently covered by legislation.267 We are particularly concerned with the use of another person’s identity to obtain monetary benefits. Conduct of this kind will normally fall within the crime of obtaining by deception.268 So will monetary scams: the use of false inducements (communicated electronically as much as any other way) to extract money from people. The present provisions of the Crimes Act seem to us fit for purpose in this regard.
There are other offences which can be committed by publications of various kinds. We do not need to list them. But they include the numerous prohibitions on various kinds of advertising; constraints on advertisements and other communications relating to forthcoming elections; prohibitions on publishing information acquired by illegal interception, or intercept under warrant; and even (in the rarest imaginable cases) offences relating to the security and defence of New Zealand such as treason, and the publication of improperly obtained official information.269
Constraints on speech in the interest of justice
Open justice is a corner principle of New Zealand’s judicial system. However, there are times when the court may need to either temporarily or permanently suppress information, including the names of victims or the accused, in order to preserve the integrity of a trial and safeguard the rights of an individual to be assumed innocent until proven guilty.
Section 140 of the Criminal Justice Act 1985 enables a judge to supress publication of the name of an accused, or other person involved in criminal proceedings.270 Similar statutes apply to specific courts and tribunals, and specific types of proceeding. For example the statutes governing our Family Court contain provisions requiring non-publication of names to protect the privacy of those involved;271 the Coroners Act requires that details of suicides be not published unless the Coroner gives permission;272 the provisions governing Courts Martial have provisions equivalent to those in the criminal courts.273
Alongside these statutorily proscribed offences, there is also a common law offence of contempt of court. Contempt deals with publications and other conduct which could prejudice the administration of justice. Most significantly it deals with publications which could prejudice a fair trial, for example by conveying information (such as the previous convictions of the accused) which a jury is not entitled to know. Although, as discussed earlier, prejudicial publishing in social media is an increasing problem both here and overseas, not many contempt cases come to court, and of those that do, in New Zealand, a reasonably high proportion have not resulted in a finding of contempt. The threshold is a high one.274
However in recent times there have been a number of successful contempt applications both in New Zealand and in overseas jurisdictions which indicate that the courts are prepared to deal with online breaches of court orders and contempt of courts.
In 2007 lawyer Rob Moodie was found guilty of contempt over his internet publication of suppressed evidence pertaining to the lengthy legal battle over the collapse of an army-built bridge on his clients’ King Country farm.275
KiwiFirst publisher Vincent Siemer, has been before the courts on a number of occasions in relation to publications on his website.276
Most recently blogger Cameron Slater was convicted under the Crimes Act on nine offences relating to online breaches of court suppression orders.277
An analysis of inquiries into alleged contempts and/or breaches of court orders since 2009 provided to us by Crown Law suggests a significant proportion of the complaints arose in the context of either Family Court cases or of instances where an individual had embarked on a personal campaign targeting some aspect of the justice system.278
In a landmark trial in London’s High Court in June 2011 a 40-year-old woman was sentenced to eight months jail after being found guilty of contempt. She had admitted using Facebook to exchange messages with a defendant in a trial in which she was a juror.279 The Lord Chief Justice warned, in sentencing, that a custodial sentence was “virtually inevitable” for any jurors committing similar contempts. In a similar case a juror in Tarrant County pleaded guilty to four counts of contempt of court in August 2010 after attempting to “friend” a defendant in the case at trial. The juror was sentenced to community service.280
In the United States, research conducted by Reuters Legal into the impact of social media on the trial process found that since 1999 at least 90 verdicts in American courts had been challenged as a result of alleged internet-juror misconduct.281 The majority of these cases had occurred in the last two years with judges granting new trials or overturning verdicts in 28 criminal and civil cases since January 2009.
Questions have recently been raised as to whether New Zealand’s law of contempt generally needs reform. That question is being separately addressed in other fora, and we do not need to deal with it here.
Alongside these statutorily defined offences which attract penal sanctions in the courts, there are also a number of important common law wrongs relating to the improper communication of information which can give rise to civil causes of action. The harmful communication giving rise to these causes of action could occur in either traditional or new media. However, in discussing these various common law wrongs it is important to bear in mind that civil actions require the aggrieved individual to bring court proceedings and many do not in fact have either the means or the desire to do so.
The most important is defamation, a cause of action originating in the ancient torts of libel and slander, which enables a plaintiff to sue a defendant for publishing statements which might affect his or her reputation. It was originally a harsh cause of action, and despite recent relaxation of some of its elements it still bears the marks of those origins. The plaintiff does not have to prove that the statement was false, although if the defendant can prove it was true, he or she will escape liability. Nor is it necessary for the plaintiff to prove actual damage: statements reflecting on reputation are presumed to be damaging. Nor is there any need to prove malicious intent: the mere fact of publication is enough, and it is no excuse that the defendant was simply repeating what others had said. It is enough, moreover, if the defamatory statement is published only to a small group of people: indeed one will suffice.
There is also the defamation-related tort of injurious falsehood, constituted by the publication of false information causing pecuniary loss. It applies largely in the commercial arena where damage is done to a business by untrue statements about that business.
In recent times there has been some relaxation of the law of defamation both by statute and at common law. The common law changes have perhaps been the most significant. In this country they have created a privilege for political speech.282 In England a similar common law extension is leading to something resembling a public interest defence.283 Defamation actions are more procedurally complex than most, and can result in long drawn out proceedings. The cost of bringing an action can sometimes be more trouble than it is worth. It has indeed been said that there are no winners in defamation actions. However, that being said, it remains a significant constraint. There is no doubt that defamation can be committed by those who disseminate information in any form of media, be it on a website, a blog, Facebook or Twitter. And it is enough that it is communicated to even one person.
Internet publication in defamation cases is no longer unusual.284 There have been actions in New Zealand relating to statements made in the new media. For example in 2001 the courts ruled on a defamation action involving comments made on an Internet news group, awarding the plaintiff $30,000 general damages and $12,000 punitive damages.285 It has been held that publication in cyberspace is just as much publication as any other form of dissemination. Judge Ross has said:286
I know of no forum in which an individual has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences. Merely because the publication is being made to cyberspace does not alter this.
Like any communication, statements made in cyberspace must always be read in the context in which they appear. The robustness and tone of the discussion may affect the impact of a particular contribution: debate on the web is often more robust and forthright than that which may be found in the mainstream media.287 But, as Judge Ross points out, a factually false statement which reflects on reputation remains defamatory, wherever it is published.
There have been indications in New Zealand that a reference or link on a website to another website which contains defamatory material can render the first website liable as well because it is publishing the same defamation indirectly. However there is now strong Canadian authority to the effect that hyperlinks on a website which lead to defamatory material do not automatically render the linking website liable: the hyperlink has no more effect than a footnote.288 The Canadian decision is fully reasoned and the New Zealand courts may well follow it.
Reputational attacks on the internet are also beginning to feature in defamation cases coming before the courts in Britain. In August legal information specialists Sweet and Maxwell reported the number of defamation cases in Britain involving social networking sites had doubled in the 12 months to June 2011. Of the 86 cases brought to court in the preceding 12 months, 16 involved alleged defamation on blogs or social media. None related to traditional media websites. Among the social media cases was an action brought by New Zealand cricketer Chris Cairns over comments published on Twitter by former Indian Premier League commissioner Lalit Modi.289
In May 2011 Britain’s South Tyneside Council successfully lodged a subpoena in a Californian court requiring Twitter to provide the account details of an anonymous tweeter who was allegedly defaming councillors and staff. This case received widespread publicity in the British press because it suggested that, despite the jurisdictional issues, Twitter would potentially hand over user information when there was credible evidence of a potential criminal or civil breach.290
New Zealand now has a tort of invasion of privacy. It owes its origins to the 2004 Court of Appeal decision in Hosking v Runting.291 Its ingredients are that publicity must have been given to facts in which there is a reasonable expectation of privacy, that publicity being offensive to a reasonable ordinary person. There is a defence if the matter published is of public concern.
The tort is still in its infancy in this country and there have been insufficient cases to map out its boundaries in detail. It has been used, for example, to award damages to a former prisoner whose picture, identity and address were widely published in the community where he was living;292 and to forbid publication of the identity of a young man who was caught up in a high-profile sex scandal involving a politician.293 But there are uncertainties about many of its ingredients: how far, for instance, one can have a reasonable expectation of privacy in a public place, and whether corporations have a right of privacy as much as individuals. It has also yet to be determined how wide the publicity needs to be to give a cause of action (the term used in the leading judgment is “publicity” not “publication”). But there is no doubt that websites and blogs would meet that test. While initially there were concerns among the media that the tort would gravely impede freedom of information, the infrequency of court cases since Hosking has to some extent mitigated that concern.
Breach of confidence
Another common law action is the action for breach of confidence, which holds that if information is received on an understanding that it will be kept confidential, the recipient must not publish it. Public interest is a defence. There is doubt in New Zealand as to how far a relationship of confidence between the parties is necessary, or whether the very nature of the information can impose an obligation of confidence.294 The question is less important in New Zealand than in the UK, given the development by our courts of the tort of invasion of privacy: we do not need to examine it here. In New Zealand there have been few actions involving the media but once again there can be little doubt that digital publication could infringe just as readily as publication in any other way.
Breach of copyright
Breach of copyright also remains a possible cause of action. If material is under copyright it is a breach of that copyright, among other things, to issue copies to the public or to communicate the work to the public. There is no doubt that that can be done electronically just as much as via the traditional media. Recent amendments to the Copyright Act 1994 make that clear, even if it was not clear before. Copyright actions for publications in the media, new or old, are not common and never have been, although they remain a possibility.
An amendment to the Copyright Act in 2010 introduces new controls over, and remedies for, illegal file sharing. Infringing users can be warned, and on a third occurrence be subject to monetary sanctions, and the possibility of having their Internet connection terminated by their ISP.295 The new legislation is controversial.
It is still arguable, although not strongly, that there may be a common law tort of harassment. The English authority so suggesting has never been overruled on that point although other aspects of the judgment in the relevant case are no longer good law.296 Quite apart from that common law possibility, the Harassment Act 1997 also provides for a civil remedy if harassment takes place within the definition in that Act. The victim can apply for an order that the harassment cease; failure to comply with any such order is a criminal offence.297 The civil remedy for harassment is not dependent on the element of intent which the criminal law requires. It is enough that the harassing conduct has taken place. But the specified acts which can amount to harassment are the same as those for criminal harassment with the same arguable ambiguity about their extent. (The Domestic Violence Act 1995 may also provide a remedy for those who are the victim of harassment by a former partner or someone with whom they ordinarily share a household or have been in a “close personal relationship” with. The Act’s definition of domestic violence includes psychological abuse in the form of harassment, intimidation, and threats.298)
Wilkinson v Downton
The little used tort in Wilkinson v Downton might also in theory provide another cause of action.299 That tort is constituted by communicating false messages calculated to cause nervous shock to the recipient. The facts of the case itself, although they happened well before the electronic age, involved a man by way of a misplaced joke telling a woman that her husband had been seriously injured. He was held responsible for the ensuing nervous shock which she incurred. The potential for this tort’s operation in the internet age is obvious, but its current status is uncertain, and some believe it is obsolete.
Breach of statutory duty
The civil causes of action are fewer than the prohibitions imposed by the criminal law. The two areas are by no means on all fours. However there is a possibility that some of the criminal offences might give rise to an action for damages by the injured person if an intent to allow such a remedy can be inferred from the statutes themselves. This is the province of the uncertain tort of breach of statutory duty. A civil cause of action will lie if, on the true construction of the relevant statutory provision, there was a parliamentary intention to confer a private right of action over and above the public sanction imposed by the statute. In the process of construction the court will consider such things as the purpose of the provision, whether it was intended to protect a particular class of person, and the nature of any specific modes of enforcement provided in the Act. Attempts to instil predictability and principle into this area have not been entirely successful and sometimes litigation is the only way of determining whether such a remedy will lie.300 There are not many cases in recent years when this cause of action has been successful, and most of those have occurred in a regulatory context. This tort is not likely to be of great or frequent utility in the subject matter of our study.
The Privacy Act 1993 and the Human Rights Act 1993
Although not generally enforceable in the courts, these two statutes do offer a potential avenue of redress for people aggrieved by certain types of communication.
The Privacy Act 1993, section 6, principle 11, provides that anyone who holds personal information about a person will not disclose it to anyone else. There are, of course, exceptions, which include the need for maintenance of the law, the need to protect health and safety, and the consent of the person concerned. If there is a breach of this principle which causes, or may cause, harm to the person, a complaint may be made to the Privacy Commissioner. The Commissioner attempts to resolve the complaint by obtaining a settlement between the parties. If that cannot be satisfactorily achieved, the matter may then proceed to the Human Rights Review Tribunal which can grant remedies such as damages and orders to cease the offending conduct.
So disclosures of personal information can be grounds for complaint. But there are at least three limitations on the Act’s effectiveness. First, the news media are exempt from principle 11 (and, indeed, from almost all the Act’s other principles).301 Secondly, if material has been collected, or is held, by an individual solely or principally for the purposes of, or in connection with, the individual’s “personal, family, or household affairs” the privacy principles do not apply to it. This means that information or pictures acquired in a domestic context are not within the protection of the Act, even if they are published to the world at large via the internet.302
Thirdly, if information is already publicly available, it is not a breach of privacy principle 11 to publish it again.303
In its recent report on the Privacy Act the Law Commission has recommended amendment to all three of these exceptions; to define the term “news media” narrowly; and to provide that offensive use of domestic material and publicly available material should be a breach of the Act.304
Section 61 of the Human Rights Act 1993 provides that it is unlawful to publish material likely to excite hostility against or bring into contempt any groups of persons on the ground of their colour, race, or ethnic or national origins. The Act also makes it unlawful in sections 62 and 63 to engage in sexual or racial harassment that is repeated, or so significant that it has an effect on the person’s employment or access to certain types of service. As in the case of the Privacy Act the initial avenue of redress is via a complaint, in this instance to the Human Rights Commission, with the possibility that the matter may proceed to the Human Rights Review Tribunal.
While sections 62 and 63 are widely enough expressed to cover any form of communication (“language…or visual material”), section 61 is rather more ambiguous. It confines its prohibition to “publishing or distributing” written matter, and broadcasting by means of radio or television; to using words “in a public place”; and to using in any place words which were reasonably likely to be “published in a newspaper, magazine, or periodical or broadcast by means of media or television”. While “publish or distribute” is almost certainly wide enough to cover publication in any form of media, electronic or otherwise, the context of the remainder of the section creates enough ambiguity about that to justify a clarifying amendment. We shall return to this later. We shall also examine whether sections 62 or 63 need amendment in relation to the contexts in which they have application.
Sanctions and remedies
The laws we have outlined, both criminal and civil, are enforceable in the courts. In the case of the criminal law, fines or imprisonment may be imposed. In the civil law the usual remedy is monetary damages.
However the injunction is also a possible remedy in the civil law. Here considerations of freedom of expression must be carefully weighed in the balance. An injunction prohibits speech: it is a form of censorship. The law of defamation has always held that injunctions are an exceptional remedy, only available if damages would not be adequate redress. Interim injunctions are supposed to be exceptional too, only to be ordered if the defamation is clear, and the defendant has effectively no defence. Authority subsequent to the Bill of Rights Act clearly suggests that the same caution should apply to other civil wrongs just as much as to defamation,305 although the application of this to privacy cases is not quite so clear: in those cases publication effectively destroys the subject matter of the action.306
In England there has recently been a succession of cases where celebrities have been successful in getting injunctions to prevent publication of their moral transgressions. Most of these are orders against all the world - that is to say old media, new media, indeed everyone, forbidding publication of the information. They are a relatively new development and are controversial in that there is no named defendant. They are much less sought in New Zealand but are not unknown here either.307 In England such an injunction sometimes goes to another level, and takes the form of the so-called “super-injunction” which even forbids publication of the very fact that there has been an injunction. The whole matter is thus shrouded in secrecy. Injunctions like this have provoked much controversy and attention, and have recently been the subject of something close to civil disobedience by way of spreading the names on Twitter.308
Injunctions are not unknown in the criminal law, but are much rarer, except in contempt cases. There are a number of cases where injunctions have been sought, and sometimes granted, to prevent the publication of contemptuous material.309 Injunctions may be to prevent publication in the first place, or to cease a publication which has already begun. In the case of publication on the internet, the latter sort of injunction is often called a “take-down order”.310
Eva Maree Ayala “Tarrant County juror sentenced to community service for trying to ‘friend’ defendant on Facebook” (28 August 2011) < www.star-telegram.com/2011/08/28/3319796/juror-sentenced-to-community-service.html#ixzz1eI1nYlIG. >
“South Tyneside Council ‘gets Twitter data’ in blog case” 30 May 2011, BBC News, < http://www.bbc.co.uk/news/uk-england-tyne-13588284 >. Twitter makes clear that serious contraventions of its terms and conditions may result in their passing user details to appropriate investigatory and law enforcement bodies.
Domestic Violence Act 1995, s 3(1) In this Act, domestic violence, in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.
(2) In this section, violence means— (a) physical abuse (b) sexual abuse (c) psychological abuse, including, but not limited to,—(i) intimidation (ii) harassment (iii) damage to property (iv) threats of physical abuse, sexual abuse, or psychological abuse (v) in relation to a child, abuse of the kind set out in subsection (3).