The Harmful Digital Communication Act 2015 (Act) has been passed
The purpose of the Act is to curb damaging electronic
communications spread through methods such as emails, texts and
social media posts, known as cyberbullying. Under previous laws,
trying to remove abusive, intimidating and distressing material
from the internet has been difficult, drawn out and costly, and
there were few sanctions available to aid such efforts and to hold
offenders to account.
The new Act:
establishes an approved agency to resolve complaints in a quick
and efficient way;
gives the District Court the power to issue take-down notices
and impose penalties;
provides online content hosts with a process for handling
makes it an offence to send messages and post material online
that deliberately cause serious emotional distress;
creates a new offence of incitement to commit suicide that
applies where the person does not attempt to take their own life;
amends existing laws, including sections of the Crimes Act 1961
and the Harassment Act 1997, to clarify that they apply to
communications, regardless of whether tormentors use online or
offline means, and future-proofing the laws against technological
Work is now underway on creating an agency to deal with
What do you need to know?
Businesses who host a site where content can be posted need to
familiarise themselves with the process for dealing with
An objectionable post will be one which breaches one or more of
the communication principles set out in the Act. They provide that
a digital communication should not:
disclose sensitive personal facts about an individual;
be threatening, intimidating, or menacing;
be grossly offensive to a reasonable person in the position of
the affected individual;
be indecent or obscene;
be used to harass an individual;
make a false allegation;
contain a matter that is published in breach of
incite or encourage anyone to send a message to an individual
for the purpose of causing harm to the individual;
incite or encourage an individual to commit suicide; or
denigrate an individual by reason of his or her colour, race,
ethnic or national origins, religion, gender, sexual orientation,
If an online content host receives a complaint about content of
a post, they must notify the author of the post about the
complaint, and let the author know how they can respond. If the
author of the post consents (or if there is no response within 48
hours), the host must remove the content that has been complained
about. However, if the author objects to the removal of the post,
then the host must leave the content there, and notify the
complainant that it will not be removed.
A complainant may also make an application to the District Court
for certain orders, including the removal of a post, the publishing
of a correction or an apology, or requiring an online content host
to remove or disable access to a post or to provide information
about the author to the court. Non-compliance with these orders can
result in a fine up to $20,000.
If you or your business hosts a website where third parties can
post comments, you will need to establish a process to ensure that
these matters are dealt with promptly, given the short time frames
set out in the Act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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