Netsafe has been appointed as the Approved Agency under the Harmful Digital Communications Act. This means that Netsafe will manage and assist New Zealand internet users with cases of online harassment under a new civil regime.
Netsafe, will also have a statutory function to provide online safety advice, educate the public and collaborate with service provides and agencies to achieve the purpose of the legislation.
What are harmful digital communications?
Harmful digital communication can take many forms. Whether it is an email with harmful content, or a post on a social media site that attempts to spread rumours or lies about an individual, the common theme that runs through these examples is that they are intended to harm someone.
What are digital communications?
Digital communications are any form of communication that is transmitted via online technologies. They include:
- Texts and pictures;
- Website content;
- Blog posts;
- Online forums (or “Chatrooms”);
- Social networks or social media sites; and
- Phone based apps
What is the Harmful Digital Communications Act?
The Harmful Digital Communications Act provides new mechanisms to help people take action to reduce the harm caused by harmful digital communications.
The Act sets out:
- new measures to help people affected by harmful digital communications by providing access to an complaints agency and court ordered remedies; and
- new criminal offences to penalise the most serious perpetrators.
At its core the Act lays out 10 communications principles which are plain expressions of unacceptable ways to communicate.
They provide that communications should not be, for example, threatening, intimidating or menacing; grossly offensive; indecent or obscene; or denigrating of a person’s race, gender, sexual orientation or disability. The principles also encompass any encouragement for another person to create harmful communication.
A breach of one of the principles alone is not enough to take action. The communication must also be likely to or cause serious emotional distress.
Why was the Harmful Digital Communication Act introduced?
The Law Commission found that one in 10 New Zealand adults and 20 percent of secondary students have experienced harmful communications on the internet.
The Act was introduced to deter, prevent and mitigate harm caused to people by digital communications, whilst also providing quick and efficient means of redress.
What does the Harmful Digital Communications Act mean for young people?
All New Zealand internet users including children can request support from the Netsafe.
The Harmful Digital Communication criminal offence is subject to the standard youth justice processes that apply to other offenses. This means the offences will not be applied to children, but can be applied to young people aged 14-16 and to adults.
What types of content will be considered harmful?
A communication must cause harm which the Act defines as “serious emotional distress” and breach at least one of the 10 communications principles.
What is Netsafe’s role?
- advise people on steps they can take to resolve a problem;
- investigate complaints where harm has been caused and attempt to reach settlements between the complainant and the person responsible;
- liaise with website hosts, ISPs and other internet intermediaries (both here and overseas) and request them to takedown or moderate posts that are clearly offensive; and
- inform people about their legal options and the possible outcome if they wish to proceed to the district court.
- provide education and advice on online safety and conduct;
What role will the District Court play?
The District Court will have a new civil process.
The court will deal with cases where someone has or will suffer harm from a digital communication and there has been a serious breach, a threatened serious breach or a repeated breach of one or more of the 10 communication principles.
People will need to go to Netsafe before they can apply to the court.
What action will the court be able to take when making the new civil orders?
The court will be able to order a broad range of remedies, including:
- orders to take down material;
- cease-and desist orders;
- orders to publish a correction, an apology or give the complainant a right of reply;
- orders to release the identity of the source of an anonymous communication; and
- ordering name suppression for any parties.
Any order the District Court makes must be complied with. Anyone found guilty of breaching an order may be sentenced to up to six months in prison or fined $5,000. Companies can be fined up to $20,000.
Who can make a complaint to the District Court?
Netsafe is the first point of contact for complainants.
If the Netsafe cannot resolve the complaint, the person who reported the incident can then apply to the District Court for a civil order.
The Police will be able to apply to the court for a civil order where a communication constitutes a threat to a person’s safety.
The Chief Coroner will be able to make an application to the court for a take-down order about material relating to suicide if publication is prohibited by the Coroners Act 2006.
More advice and information
- Contact Netsafe on 0508 NETSAFE or at firstname.lastname@example.org
- The Privacy Commissioner has more details about the privacy principles of the Harmful Digital Communications Act