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 orders.
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 that:
- Disclose sensitive personal facts about another individual;
- 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 employment;
- 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 communications.
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.