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Is it legal in New Zealand for a private citizen to set up a…

Is it legal in New...
Is it legal in New Zealand for a private citizen to set up a fake online account in order to identify and compile evidence of on-line sexual grooming of a minor and then pass on this evidence to the police for potential prosecution?
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Answered in 5 minutes by:
11/23/2017
Chris The Lawyer
Category: New Zealand Law
Satisfied Customers: 23,771
Experience: 38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Customer reply replied 7 months ago
Cheers ***** ***** look forward to your response to my inquiry.

The Police will not give you legal advice about issues like this.

If evidence is gathered in a way which is illegal the court has a discretion to admit the evidence. Where you need to be careful is that there are some specific clause about gathering information about people. Part of this is covered by privacy law and part of this is in the Harmful Digital Communications Act, and also in the Crimes Act.

In the end, the issue is whether the information has been used for proper purposes.

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There is also sometimes an issue about entrapment. But generally there is a balance between the need to protect minors, and the extent to which the site is used for entrapment. There have certainly been successful prosecutions where the police have pretended to be a young victim, which has resulted in the offender being entrapped and successfully prosecuted

Chris The Lawyer
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Customer reply replied 7 months ago
Thanks Chris - I was hoping for something a bit more definitive but I'm of the belief that this is more a reflection of a current lack of legal clarification concerning this matter.

Those cases were of course the police setting up the account. They have more protection than a private individual but it can depend on how you set up the site

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And yes, there hasnt been a case about private individuals doing this

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Customer reply replied 7 months ago
Thank you Chris for your time - much appreciated :)
Customer reply replied 7 months ago
There has been a growing number of these cases occurring in the UK and the police response has been mixed depending on the area. I am considering doing something similar here in NZ but am wanting to research the legal side of things as much as possible before proceeding any further. Any other thought s you have would be much appreciated?

If you are gathering information about people, then the Privacy Act may affect what you are doing. If you gather personal information about someone, they are entitled to see the information and to file a correcting statement. I doubt whether someone grooming a minor would want to do so, but they could ask for a copy of the information. You would need to be a little careful in dealing with the provisions of the Crimes Act which deal with intimate visual recordings, which can be a criminal act if these are not treated properly.

The act says

216I Prohibition on possessing intimate visual recording in certain circumstances

(1) Everyone is liable to imprisonment for a term not exceeding 3 years who has in his or her possession an intimate visual recording—

(a) for the purpose of publishing, exporting or selling the intimate visual recording; and

(b) knowing it to be an intimate visual recording, or being reckless as to whether it is an intimate visual recording.

(2) Everyone is liable to imprisonment for a term not exceeding 1 year who, without reasonable excuse, has in his or her possession an intimate visual recording knowing it to be an intimate visual recording.

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This is however designed to prevent people from commercially exploiting such recordings or using them for blackmail. So if someone posted a naked picture, that would be an intimate visual recording. But if you are doing this for the purpose of reporting such a person to the police, that is likely to be a "reasonable excuse"

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Customer reply replied 7 months ago
Thanks for that Chris - I've been looking through some of the legislation involved but some of it is a bit over my head. This is a situation which I believe NZ has not quite caught up with yet as I guess it is a relatively new phenomena. My belief is that the Police are not adequately resourced to deal with this on line threat effectively. I read some information a few weeks back that the amount of grooming cases being put to the courts over in the UK have increased significantly since the advent of Hunting Groups being set up by private citizens. The percentage of cases from these groups have been said to be up to 40 per cent of total cases being dealt with. This is in my opinion an indication as to the scale of this on line threat. I am very concerned about the damage being done to innocent lives in this country and feel quite strongly about doing something about it in a small way as an individual.

Its not easy-the legislation doesnt contemplate private citizens gathering evidence. But I suspect that handled correctly, then you could do this.

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Customer reply replied 7 months ago
I guess I am mostly concerned with the legality of setting up a fake profile and whether this could come back and bite me. As far as entrapment is concerned this would not be an issue as none of the hunting groups in the uk make the initial contact or encourage any untoward behaviour. Thank you for the information you have provided. If you have any further information that may be relevant to setting up a fake decoy account online and the legality of such an action then please let me know??? If not then I would like to thank you for your time in this matter. It has been most helpful.
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