The internet has undoubtedly made our lives better. We have the flexibility to work and learn from home. We can purchase goods and services from the comfort of the couch. We can access vast libraries of streamed content. And we can stay connected to friends and family on the other side of the world. Sadly, the internet has also created a new way for people to bully, abuse, intimidate, threaten and cause harm to others.
WHAT IS THE HARMFUL DIGITAL COMMUNICATIONS ACT?
The Harmful Digital Communications Act 2015 (the HDCA) was introduced to tackle some of the ways people use technology to hurt others. The aim of the HDCA is to “deter, prevent and mitigate harm caused to individuals by digital communications”, and “provide victims of harmful digital communications with a quick and efficient means of redress”.
KEY TERMS IN THE HDCA
There are a handful of key terms in the HDCA that are important to understand.
Digital communication is any form of electronic communication including for example:
- Text messages
- 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 Harmful Digital Communications Act.
The HDCA provides some guiderails to appropriate online behaviour. These are referred to as the Communication Principles. 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
Netsafe (and the Court) must act consistently with the NZ 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.
The HDCA explains that the harmful content must relate to an individual(s). An individual is a natural person. This means that the HDCA does not apply to harmful content which targets an organisation such as a company or a business. Where the affected individual is a young person, we often receive complaints from parents, guardians or school leaders.
Finally, the digital communication must cause harm to the individual(s). Harm is defined in the Act as serious emotional distress. When you make a report to Netsafe, it helps if you explain the impact the incident has had on you.
THE ROLE OF THE APPROVED AGENCY
In light of how fast things move online and the challenges in bringing a case to Court the HDCA provides an alternative avenue for people experiencing online harm, to achieve speedy resolution. Netsafe is currently appointed to perform the following roles and functions of the Approved Agency:
- 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; and
- to provide education and advice on policies for online safety and conduct on the Internet
People who use Netsafe’s services often assume we can force a platform or the producer of the harmful content to remove it. We can’t. The Harmful Digital Communications Act does not give Netsafe any authority to compel another person or organisation to act in a certain way. Nor can Netsafe unmask or identify someone using fake accounts or profiles. . Instead, Netsafe uses advice, negotiation, mediation, and persuasion in an attempt to resolve complaints.
Where Netsafe has been unable to resolve a complaint, it may be possible to seek an order in the District Court.
This is an overview of the HDCA Process in Netsafe (what happens when you make a report).
THE ROLE OF THE DISTRICT COURT
A complainant may make an application to the District Court if Netsafe has been unable to resolve the complaint or to resolve it to the satisfaction of the complainant. It is free to bring proceedings in the District Court and, although it may be helpful, you do not require legal representation.
The District Court has the power to make civil 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 persons 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.
A person or organisation who fails to comply with a Court order is liable on conviction:
- in the case of a natural person, to imprisonment for a term not exceeding 6 months or a fine not exceeding $5,000:
- in the case of an organisation, to a fine not exceeding $20,000.
Criminal penalties under the HDCA
The HDCA also contains criminal penalties. It is for the Police, rather than Netsafe, to consider whether criminal penalties ought to be pursued.
A person or organisation convicted of causing harm by posting a digital communication may be liable:
- in the case of a natural person, to imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:
- in the case of a body corporate, to a fine not exceeding $200,000.
A person or organisation convicted of posting an intimate visual recording without consent may be liable:
- in the case of a natural person, imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:
- in the case of a body corporate, a fine not exceeding $200,000.
ADVICE FOR PARENTS ABOUT THE HDCA
The most useful thing for parents to understand about the Harmful Digital Communications Act is the way the 10 communication principles define what is good or bad behaviour online.
How does the HDCA apply to young people?
Anyone in New Zealand including young people or parents on behalf of their child can get help from Netsafe. The options available under the Act will reflect the age of the people involved in an online incident.
What do criminal offences under the Harmful Digital Communications Act mean for young people?
A criminal offence under the HDCA is subject to the same youth justice processes that apply to other offences. This means the offences will not be applied to children under the age of 14, but can be applied to young people aged 14-16 under the youth justice system.
Be alert and stay safe online. Learn more about how you can stay safe and get help from online bullying and abuse.
If you’re concerned about the immediate safety of you or someone else, please call 111. If you want help or expert incident advice, you can contact us. Our service is free, non-judgemental and available seven days a week.
- Email [email protected]
- Call toll free on 0508 NETSAFE (0508 638 723)
- Online report at netsafe.org.nz/report
- Text ‘Netsafe’ to 4282