Harmful Digital Communications Act | Netsafe NZ

Introduction to the Act

The purpose of the Harmful Digital Communications Act 2015 (HDCA) 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.

There are some key terms in the HDCA that it is important to understand:

Digital communication

Digital communication is any form of electronic communication including for example:

Emails
Text messages (SMS)
Voice mail messages
Social media content (e.g. blogs, posts, comments, images and videos)
content on messaging and communication apps (e.g. WhatsApp, Messenger)
Content on image and video-sharing apps (e.g. Snapchat, YouTube)
Posts on community online forums (or chatrooms)

That means that telephone calls that aren’t recorded, letters sent by post, and verbal interactions that are not recorded, are not within the scope of the HDCA.

HDCA Communication Principles

The HDCA provides some guiderails to appropriate online behaviour which are set out in the Communication Principles.

These principles 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.
Denigrate an individual by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.

A digital communication must contravene one or more of the communications principles in order to be considered under the HDCA.

Individual

The HDCA provides that the harmful content must relate to an individual. An individual is a natural person. This means that the HDCA does not apply to harmful digital communications which target an organisation such as a company or a business.

Harm

Finally, the digital communication must cause harm to the individual. Harm is defined in the HDCA as “serious emotional distress”.

Netsafe’s powers and functions

Netsafe is currently appointed to perform the following roles and functions under the HDCA:

To receive and assess complaints about the harm caused to individuals by digital communications.
To investigate complaints.
To use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints.
To establish and maintain relationships with domestic and foreign service providers, online content hosts, and agencies.
To provide education and advice on policies for online safety and conduct on the internet.

The role of the District Court

Where Netsafe is unable to resolve a complaint or resolve it to the satisfaction of the complainant, it may be possible to seek an order in the District Court. Note that to bring proceedings in the District Court a complaint must first have been made to Netsafe.

The District Court has the power to make binding and enforceable orders including:

To take down or disable material.
That the defendant cease or refrain from the conduct concerned.
That the defendant not encourage any other person to engage in similar communications towards the affected individual.
That a correction be published.
That a right of reply be given to the affected individual.
That an apology be published.

The Court may also refer the complaint back to Netsafe or dismiss the complaint.

It is a criminal offence to fail to comply with an order of the court.

Criminal Offences under the HDCA

As well as the civil remedies set out above, the HDCA also contains criminal penalties. It is for the Police, rather than Netsafe, to consider whether criminal penalties ought to be pursued.

It is a criminal offence under the HDCA to post a digital communication:

With the intention that it cause harm to a victim;
or
That is an intimate visual recording of a victim—
- knowing that the victim has not consented to the posting;
  or
- being reckless as to whether the victim has consented to the posting.

The penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000 (or in the case of a body corporate, to a fine not exceeding $200,0000).

Interactions with other legislation

New Zealand Bill of Rights

Netsafe (and the District Court) must act consistently with the New Zealand Bill of Rights Act 1990. That Act provides everyone with the right to freedom of expression. However, the right to freedom of expression is not absolute. For example, it does not give someone the right to breach one or more of the communications principles, causing harm to another person. On the other hand, just because someone takes offence or is upset by a digital communication, doesn’t mean that it is a breach of the HDCA.

There may be rights and remedies available under other legislation at the same time as under the HDCA.

For example, remedies in respect of false allegations might be pursued under the Defamation Act 1992 (as well as or instead of under communications principle 6) and harassment might be pursued under the Harassment Act 1997 (as well as or instead of under communications principle 5).

Objectionable content such as child sexual abuse material or terrorist or violent extremist content is dealt with under the Films, Videos and Publications Classification Act 1993. Netsafe works alongside other agencies such as the Classifications Office, the Department of Internal Affairs and the Police in respect of such content.

Online harms not covered by the HDCA

Some online harms may not be covered by the HDCA.

For example, mis or disinformation, financial scams and certain hate speech may not engage the relevant criteria to be considered under the HDCA. Netsafe will still try to help you resolve the issue but the process and our advice may be different.