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Online communication can bring great opportunities to your business and let you reach a broader range of customers. However, whenever you operate online, you need to take steps to protect both your security and safety. The law has various rules for both individuals and businesses operating online, which you will need to abide by if they apply to you. Therefore, this article will go through one particularly key online safety law, the Harmful Digital Communications Act (HDCA). It will also go through any other things you need to know about New Zealand online safety law.

What Is the Harmful Digital Communications Act?

The HDCA is a law that aims to prevent and reduce harmful digital communications, such as online bullying and harassment. It introduces offences for those that send such digital communications and, in some cases, the sites those communications are on.

Digital communications are any form of electronic messages, such as texts, emails, or recordings. This definition can also cover posts on public forums. A harmful communication is one that causes serious emotional distress.

The HDCA operates on ten principles. Namely, that any digital communication should not:

  • share sensitive personal facts about an individual;
  • be threatening, menacing, or intimidating;
  • be grossly offensive to a reasonable person in the affected individual’s place;
  • harass a person;
  • be indecent or obscene;
  • make any false allegations;
  • include information that would be a breach of confidence;
  • incite or encourage others to send harmful messages to a person;
  • incite or encourage a person to die by suicide; or
  • belittle a person based on their colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Offences Under the Act

The HDCA allows for both criminal and civil remedies. As a result, if you send a harmful digital communication that breaks one of the previous principles, victims have a variety of options to pursue. They can:

  • complain to the online content host;
  • report to Netsafe, who will operate as a mediator; or
  • apply to the District Court to take action.

Depending on the severity of the situation, Netsafe can recommend certain actions, and a District Court judge can set orders that the message sender must comply with. 

Notably, the HDCA sets out two criminal offences, which a person (or company) can be liable for if they:

  • refuse to comply with a court order; or
  • cause harm by posting a digital communication.

An offender can cause harm by posting a digital communication:

  • with the intent to harm a victim;
  • that would cause harm to a reasonable person in the victim’s place; and
  • that causes harm to a victim.

A judge will gauge the severity of the harm, depending on the facts of the situation. Both offences can lead to imprisonment or fines ranging from $5,000 to $200,000.

How Does This Law Affect My Business?

Outside of sending a harmful digital communication yourself, there are other ways that the HDCA can apply to your business. Notably, if your business operates in an online space and deals with online community content, you may classify as an online content host.

For instance, if you operate an online marketplace where users can post comments on product listings or posts, you will be dealing with online community content. Alternatively, if you operate any online forums on your business’ website, you would also be an online content host.

Whether you attract any liability when a person receives a harmful communication will depend on the relevant circumstances. In particular, how you reacted and what actions you took will influence what responsibility you have. 

Notably, the HDCA provides a ‘safe harbour process’ for online content hosts to provide protection if a person uses their site to post or send harmful digital communication. In particular, if you receive a complaint about a harmful message, you need to:

  • send a copy of the complaint (without any identifying information) to the message author within 48 hours;
  • remove the harmful message if you receive no reply or cannot find the author within 48 hours; and
  • remove the message if the message author agrees. If not, the message can stay up.

If you follow this process, you receive certain protections against liability if the matter goes to court. Correspondingly, if you do not, you could face potential liability. However, to qualify for safe harbour, you need to make sure you have a clear and accessible complaints system for users.

Other Online Safety Laws

The HDCA covers specific kinds of harm to individuals, which you should know about to avoid liability. However, there are also other laws protecting individuals online when they deal with businesses specifically, such as:

  • laws against spam and other commercial electronic messages; 
  • creating binding contracts/transactions online; and
  • consumer law specifications for businesses operating online.

Key Takeaways

The HDCA protects individuals against harassing and harmful messages online. Outside of sending such messages yourself, you may be liable if you are an online content host where someone posts harmful content. As a result, if you do not take appropriate steps in response to a complaint about that content, you may face court action yourself. If you would like more information or help with your business and online safety law, contact LegalVision’s data, privacy, and IT lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is the Harmful Digital Communications Act?

The HDCA is a piece of law that aims to reduce and prevent harmful digital communication, such as cyber abuse material, harmful content, and other online harms. Any person that sends such messages can face consequences under the Act.

Is my business liable if someone posts a harmful message on my website?

If someone posts a harmful message to your website, you may be liable depending on the circumstances and your response. However, if you follow the safe harbour process and provide victims with a complaints system, you may be able to protect yourself.

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