The Harmful Digital Communications Act 2015 received the Royal
Assent on 2 July 2015 and will soon become law. The Act will have
ramifications for employers and employees who may engage in, or be
in receipt of, harmful digital communications at work (also known
as cyber bullying).
The purpose of the Act is to deter, prevent and mitigate harm
caused to individuals by digital communications, and to provide
victims of harmful digital communications with a quick and
efficient means of redress. Digital communications include emails,
texts, online photographs and social media posts.
The Act creates a new civil enforcement regime, and new criminal
offences, to deal with seriously harmful digital communications.
There will be an approved agency established to investigate and
resolve complaints of harmful digital communications. Matters that
cannot be resolved will be referred to the District Court, which
can order remedies for civil cases. Such remedies will include
take-down notices for online communications, cease and desist
orders, name suppression orders, and orders to publish corrections
and apologies. The District Court will not be able to issue fines
or imprison individuals, except where they fail to comply with
Under the Act, it will be an offence to send messages or post
material which deliberately causes victims 'serious emotional
distress'. This will attract penalties of up to two years in
jail or a fine of up to $50,000.
The regime is based on a set of ten communication principles,
which amongst other things, prohibit digital communications
Disclose sensitive personal facts about another
Are grossly offensive to a reasonable person in the position of
the affected individual;
Are indecent or obscene; or
Are threatening, intimidating or menacing.
Ramifications for employers
The Act will have wider ramifications for workplaces,
particularly where bullying has allegedly occurred. Where a harmful
digital communication is held on a system under the employer's
control, such as an internal messaging system or intranet, the
employer may be required to take urgent steps to remove the harmful
content, within 48 hours, in accordance with the complaints process
set out in the Act. Failure to do so could leave the employer
potentially facing liability for criminal or civil penalties.
If an employer is charged with an offence in relation to harmful
digital communication, an employer may seek to address implications
in a disciplinary context, regardless of whether the misconduct
took place outside the workplace.
Employers should consider amending workplace policies to reflect
this new law. This includes updating policies relating to bullying
and harassment, misconduct and disciplinary action, and use of
internet and technology.
Polices should also refer to:
The processes available to employees for dealing with harmful
electronic communications received in the course of
The potential for employees to face civil or criminal liability
where they are responsible for producing seriously harmful digital
communications at work (or out of work); and
Any disciplinary action and consequences employees may face
from their employer if found to be engaging in harmful digital
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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