About the HDC Act
The Harmful Digital Communications Act 2015 (the Act) tackles some of the ways people use technology to hurt others. It aims to prevent and reduce the impact of online bullying, harassment, revenge porn and other forms of abuse and intimidation.
The Act provides quick and affordable ways to get help for people in New Zealand receiving serious or repeated harmful digital communications.
The Act introduces a civil regime and criminal offences. Netsafe’s role is to operate the civil regime. Netsafe takes complaints of harmful digital communications and informs people about the options that are available to them to remedy the situation. Our service aims to lessen the harm caused to people targeted online by using, persuasion, mediation and negotiation to help reach a resolution for both parties involved. Netsafe cannot punish people for their actions online, or force them to take action.
What are ‘harmful digital communications’?
Harmful digital communications can take many different forms. They can be private messages or content that others can see. They include when someone uses the internet, email, apps, social media or mobile phones to send or publish threatening or offensive material and messages, spread damaging or degrading rumours and publish online invasive or distressing photographs or videos.
A digital communication may be deemed harmful if it:
- Is directed at an individual; and
- Makes that person seriously emotionally distressed; and
- It has or could seriously breach of one or more of the 10 communication principles in the Act.
The 10 communication principles
The 10 principles say that a digital communication should not:
- disclose sensitive personal facts about a person;
- be threatening, intimidating, or menacing;
- be grossly offensive;
- be indecent or obscene;
- be used to harass a person;
- make a false allegation;
- breach confidences;
- incite or encourage anyone to send a deliberately harmful message;
- incite or encourage a person to commit suicide; and
- denigrate a person’s colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.
What if Netsafe can’t help both parties to reach a resolution?
The District Court will deal with cases of serious or repeated harmful digital communications that Netsafe hasn’t been able to resolve, but people need to have tried to resolve things with Netsafe first.
The court will look into whether the person who produced the content has seriously breached, will seriously breach or has repeatedly breached one or more of the 10 communication principles. It will also consider how people responded to the advice Netsafe gave.
The court has the power to order people to stop their harmful digital communications and take action including:
- ordering material to be taken down;
- ordering someone to publish a correction, an apology or give you a right of reply;
- ordering online content hosts (like social media/telecommunication companies or blog owners) to release the identity of the person behind an anonymous communication; and
- order name suppression to protect your identity or the identity of anyone else involved in the dispute
Anyone who ignores the District Court’s orders can be prosecuted and penalised. The penalty is up to six months in prison or a fine up to $5,000. Companies can be fined up to $20,000.
The Act also includes criminal offences to penalise the most serious perpetrators, and the Police will handle these cases. Under The Act it can be illegal to send messages and post material online that deliberately cause somebody serious emotional distress.
The Police may prosecute a person or company if:
- they intended the communication to cause harm; and
- it is reasonable to expect that a person in the position of the targeted individual would be harmed by it; and
- the targeted individual suffered serious emotional distress
The court will consider a variety of factors including how widely the material spread and whether what was said was true or not. The penalties for this offence are a fine of up to $50,000 or up to two years’ jail for an individual, and up to $200,000 for a body corporate.
The Act has also made an amendment to the Crimes Act, which means it is now a crime to incite another person to commit suicide, regardless of whether they attempt to take their life. These cases will be dealt with by the Police, and the content can be reported to Netsafe for assistance with removal.