New Zealand: Harmful Digital Communications Act 2015 – What does it mean for you?

Last Updated: 21 October 2015
Article by Brian Nathan

The Harmful Digital Communication Act 2015 (Act) has been passed by Parliament.

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 complaints;
  • 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; and
  • 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 advances.

Work is now underway on creating an agency to deal with cyberbullying complaints.

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 objectionable posts.

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 confidence;
  • 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, or disability.

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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