Harmful digital communications and your rights
MBIE recently published this information on how the HDCA affects you.
The Harmful Digital Communications Act (HDCA) became law on 3 July 2015 but different parts come into effect at different times. It aims to deter, prevent and lessen harmful digital communications. This includes cyber bullying, harassment and revenge porn posted online through emails, text, websites, applications or social media.
Harmful digital communication and cyber bullying includes:
- sending or publishing threatening or offensive material
- spreading damaging rumours
- sending or publishing sensitive personal information such as embarrassing photos and videos.
Digital communication is defined widely in the Act to include any form of electronic message such as texts, photos, pictures, recordings etc.
The test for determining what is a harmful digital communication is whether the communication was designed to cause serious emotional distress. This is also very wide in its scope.
What you need to know
The Harmful Digital Communications Act has a range of different measures that come into force at different times to address damaging electronic communications spread through methods such as emails, texts and social media posts. For example, the approved agency and the new District Court orders will begin within 2 years.
There are 10 communication principles that state 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 used to harass an individual.
- make a false allegation.
- not incite or encourage an individual to commit suicide.
The approved agency or the District Court must take these principles into account to determine if the Act has been breached when you make a complaint or bring a civil claim.
Offences under the Act
You can contact the Police if the digital communication is harmful, harassing or encourages suicide.
The HCDA sets out a new criminal offence of causing harm by digital communication, ie you send messages or post material (pictures, photos, videos) online that is intended to cause harm, and does in fact do so. This is punishable by up to two years in prison or a maximum fine of up to $50,000 for individuals and $200,000 for companies.
It also broadens the scope of an existing criminal offence where you incite others online to commit suicide. This offence now applies regardless of whether victims attempt to take their own lives. A maximum sentence of up to three years in prison applies for this offence.
Process for removing harmful digital content
You (or someone on your behalf) can easily and quickly request the removal of harmful and illegal content posted by others (website, blog, social media or phone company). The process is as follows:
- You make a complaint to the host of the online content.
- The host must give the author of the content a copy of the complaint. This must be done as soon as practicable but no later than 48 hours after your complaint. Your name can be concealed if you’ve requested that your name not be given to the author. The host must also notify the author that they can lodge a counter notice.
- The host must take down or disable the content if they cannot locate the author. This must be done as soon as practicable but no later than 48 hours after receiving your complaint.
- If the author has lodged a counter notice within the 48 hours and consents to the content being removed, the host must take down or disable the content as soon as practicable after receiving that counter notice.
- If the author fails to lodge a valid counter notice the host must take down or disable the content as soon as practicable but no later than 48 hours after it advised the author of their right to lodge a counter notice.
- The host must leave the content in place, if the author lodges a valid counter notice which does not consent to the content being removed. The host must advise you of the author’s decision and if the author consents, give you personal information that identifies the author.
There are specific requirements around making a complaint. This includes:
- giving your name, telephone number, physical address and email address
- stating the specific content and why you believe that it is unlawful or breaches the communication principles and has caused harm
- stating whether you consent to your personal information being released to the author.
Hosting providers can avoid liability if they follow a clear complaints process set out in the Act (called safe harbour provisions). This means you can contact them in the first instance and resolve immediate problems quickly.
The HDCA also sets up a new approved New Zealand complaints agency that will investigate and attempt to resolve harmful digital communications. You will be able to contact this agency with any alleged breaches the principles. Netsafe has been appointed to take up this role by November 2016.
Netsafe will investigate alleged breaches of the 10 principles and work with parties to find a resolution. Where the parties cannot agree and/or there has been a clear breach of the HDCA, the agency will refer cases to the District Court. The Court can order the removal of content and a published apology.
The HDCA amends two privacy principles 10 and 11 (external link) in the Privacy Act.
You can now be found liable for a breach of those principles, when you use or distribute information that was already in the public domain if the use or disclosure harms the individual whom the information is about. For example, sharing a link on social media that has malicious comments about a person. This would also cover data breaches, eg where personal information has been distributed in error or deliberately by a hacker and is then used by someone else. That person could be liable for a breach of those principles if it is unfair and unreasonable for them to use that data.
- Ministry of Justice (external link)
- Guidance from the Privacy Commissioner: Harmful Digital Communications Act FAQs (external link)
- Netsafe (external link)