One complaint doesn’t break an Act

Netsafe former CEO Martin Cocker shares his thoughts about the Harmful Digital Communications Act, the media and free speech.

Coverage of a high profile complaint under the Harmful Digital Communications (HDC) Act against Newsroom has once again raised concerns that the HDC Act will curtail free speech. We don’t discuss the details of cases publicly – but it is important to put this case in perspective, and clarify some things about our processes.

Netsafe has processed over 4000 HDC cases since November 2016. The majority of these cases are exactly the sort of thing the law was designed to address. People creating digital content with the express intention of harming another person.

This misunderstanding that the Act is a threat to free speech is rolled out as many times as the theory that the Act was created in reaction to the Roastbusters scandal. That is, as they say, fake news. This briefing paper and the draft HDC Bill predated the roastbusters scandal by over a year.

Incidentally the term “freedom of expression” is found 17 times in that briefing paper, whilst free speech gets 11 mentions.

The HDC Act was designed to fill gaps in legislation that were enabling people to harm others online. There are no specific exemptions in the HDC for where those gaps were already filled but they are captured in section 19(5). That flexibility allows the HDC services to be agile enough to adjust as other legal options or remedies come or go whilst also protecting the Act from misuse.

If somebody believes they have been harmed by a Digital Communication, they report that to Netsafe. Netsafe works with the affected parties to see if the complaint can be resolved satisfactorily. Once that process is complete, a person has the right to progress to the District Court.

Netsafe is expected to receive, assess, and process complaints using a mix of “persuasion, negotiation, mediation, and advice”. Netsafe does not enforce actions. If a complaint is laid about you, and some digital content exists – you can expect to hear from Netsafe. That is not an indication that Netsafe believes you have breached the Act. It is simply the beginning of that process.

If you have breached the Act, you get a chance to remedy that. If you haven’t breached the Act – you won’t have anything to remedy.

HDC complaints have been brought against media in the past. They will again in the future. If the court rules that HDC complaints can not be brought against media – then Netsafe will build that advice into its process. In the meantime, we will process these complaints as regular HDC complaints alongside the thousands of other cases.