HDC Act

This information is an overview of the Harmful Digital Communications Act 2015, including the responsibilities of schools. The information is useful to accurately explain the Act to school leaders and educators, and to understand the help available under the legislation for students targeted by harmful digital communications.

Why is the Act important for schools?

The Act sets out:
  • measures to help people affected by harmful digital communications (including text messages and voicemail) and other content that is targeted at them, by providing access to a complaints agency and court ordered remedies – and schools can seek assistance on behalf of students with their consent.
  • criminal offences to penalise the most serious perpetrators – and can apply to those 14 years and over. Schools need to help young people understand this.
  • a take-down process for online content hosts (e.g. school’s website or other online sites that school ‘hosts’) which removes their liability for content they host (but only where the process is followed exactly as prescribed)

Please note: Individuals aged 14 to 16 can be prosecuted for the criminal offences in the Act. However, should they commit any of these offences they will be dealt within the youth justice system. Individuals 17 and over are dealt within the adult justice system.

About the Harmful Digital Communications Act

The Act helps to address some of the ways people use technology to harm others. It was created to help prevent and reduce the impact of online bullying, harassment, revenge porn and other forms of online abuse and intimidation. There are two parts to the Act – a civil regime and criminal offences.

What are Harmful Digital Communications?

Under the Act, harmful digital communications can be private messages or public content. They include when someone uses the internet, email, apps, social media or mobile phones to send or publish harmful content.

To be considered a harmful digital communication under the Act, the content needs to

  1. Affect an individual; and
  2. Cause (or is likely to cause) that individual serious emotional distress; and
  3. Seriously breach one or more of the 10 communication principles outlined in the Act.
The 10 Communication Principals

The 10 principles say that a digital communication should not:

  1. disclose sensitive personal facts about a person;
  2. be threatening, intimidating, or menacing;
  3. be grossly offensive;
  4. be indecent or obscene;
  5. be used to harass a person;
  6. make a false allegation;
  7. breach confidences;
  8. incite or encourage anyone to send a deliberately harmful message;
  9. incite or encourage a person to commit suicide; and
  10. denigrate a person’s colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.

Please note that Netsafe can also provide help and advice about instances of online bullying, abuse and harassment that may not be considered a harmful digital communication under the Act.

The Civil Regime

Under the Act, there is a civil regime process to help people targeted by harmful digital communications. It includes a free service to assist with complaints of harmful digital communications (operated by Netsafe), and the ability to go to the District Court for further assistance if needed.

Netsafe takes complaints about harmful content, review complaints and help people understand the options they have to resolve the situation. Netsafe can assist the person targeted and the person who has allegedly produced the content to reach a resolution. Netsafe can also work with online content hosts, such as social media platforms, to see how they may be able to help – for example, by removing content if it breaches their terms and conditions. Netsafe can’t punish people for their actions or force them to take action.

If the person making the complaint to Netsafe feels the matter hasn’t been resolved, they are able to apply to the District Court for help, but they need to have been through Netsafe’s process first.

Under the Act, the District Court is able to consider the following options:

  • Order material to be taken down.
  • Order someone to publish a correction, an apology or give a right of reply.
  • Order online content hosts (like social media/telecommunication companies or blog owners) to release the identity of the person behind an anonymous communication.
  • Order name suppression to protect the identity or the identity of others involved in the dispute.
Criminal Offences

Under the Act there are criminal offences for very serious situations. Examples of these include sharing intimate images or videos of someone without their consent (also known as “revenge porn”) and encouraging someone to commit suicide. Netsafe can provide information in these instances, and let you know if it is more appropriate to make a report to the Police.

The penalties for offences under the Act include fines of up to $50,000 or up to two years’ jail for an individual, and up to $200,000 for a body corporate. The criminal regime does not apply to children (aged 0-13), but can be applied to young people aged 14-16 (within the youth justice system) and individuals aged 17+ (who are treated as adults within the formal criminal justice system).

What does the Act mean for schools?

Schools should
  • Ensure staff are familiar with the Act and understand how they can support students and their families/whānau in the event of online bullying or online harassment.
  • Help students understand the options available to them if they experience challenges, e.g. online bullying or online harassment.
  • Help students understand the potential implications if they are involved with the online bullying or online harassment of another person – the 10 communications principles and the criminal offences may be helpful for this.
  • Proactively plan to foster digital citizenship with students and whānau through the curriculum, wellbeing, professional learning and community engagement.
Contacting Netsafe for help on behalf of a student

Boards of Trustees (under NAG5, Ministry of Education National Administration Guidelines) must provide a safe physical and emotional environment in schools/kura. This includes cyberbullying, online bullying and online harassment.

Under the Act, anyone, including a school representative, can contact Netsafe on behalf of a young person targeted in an online incident. The affected individual should be a student of that school and, ideally, should give consent to the school contacting Netsafe using the school’s usual consent processes.

Please note that Netsafe can also provide help and advice about instances of online bullying, abuse and harassment that may not be considered a harmful digital communication under the Act.

Schools as online content hosts

Under the Act, a school can be considered an ‘online content host’ if it controls an online space with content on it. Examples include:

  • school websites
  • Facebook and other social media pages/groups;
  • class blog sites; or
  • other apps that enable users to make comments or add other content e.g. ‘Seesaw’

If harmful content is posted to an online space that is controlled or administered by the school, it may be legally responsible for that content.  It is important that schools have clear processes in place for dealing with concerns/ complaints around content that is posted or shared in these spaces.  These processes need to clearly communicate how complaints can be made and inform what action, if any, needs to be taken.  We encourage schools to explore different processes (e.g. the HDCA safe-harbour process) to find one that best supports them and fits their needs, and to include this in their current school complaints processes. For more information about the safe- harbour process visit the Ministry of Justice website.