Harmful Digital Communications Act - Update

The Harmful Digital Communications Act 2015 was passed into law with the changes suggested by the Select Committee incorporated.

However, the only parts of the Act that are in force are those that:

  • Add the new offence of causing harm by posting a digital communication.
  • Make changes to other statutes such as the Crimes Act and Harassment Act.
  • Introduce a safe harbour for online content hosts (OCHs) in respect of digital material posted by their users.

The balance of the Act concerns the process by which people who have been harmed (as defined in the Act) will be able to complain to an approved agency or, if that does not resolve the issue to their satisfaction, will be able to issue civil proceedings in the district court, where Judges will be able to call on assistance from specialist technical advisers. The approved agency and district court regimes have not not been set up yet but are expected to be ready sometime in the last half of 2016, at which time the rest of the Act will be brought into force.

In the meantime, the Ministry of Justice, which administers the Act, has issued helpful guidance, including on the OCH safe harbour. From an OCH point of view, one thing to be careful of is that you must receive a complaint notice for the safe harbour regime to be invoked. So, if you happen to stumble on something that might be harmful, unless you can encourage someone to give you a notice about it, you do not have the protection that the safe harbour would give. You then need to deal with the material as you would have before the Act was passed. That is, you need to make decision whether to take the material down (which will usually be possible under your terms of use), or to leave it up but run the risk that you are not protected from liability should you be deemed to have published or otherwise taken some responsibility for that material.

If, as an OCH, you do get a notice under the Act, if you want to take advantage of the safe harbour (you'd be crazy not to), make sure you comply with the process, including the very tight timeframes.

Image courtesy of Percy.

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