The Harmful Digital Communications Act (HDCA) was passed in 2015 to help people dealing with serious or repeated harmful digital communications. It lays out 10 communication principles that guide how to communicate online.
What type of communication does the Act cover?
It covers any harmful digital communications (like text, emails or social media content) which can include racist, sexist and religiously intolerant comments – plus those about disabilities or sexual orientation.
What are the 10 communication principles?
A digital communication should not:
- disclose sensitive personal facts about an individual
- be threatening, intimidating, or menacing
- be grossly offensive to a reasonable person in the position of the affected individual
- be indecent or obscene
- be used to harass an individual
- make a false allegation
- contain a matter that is published in breach of confidence
- incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual
- incite or encourage an individual to commit suicide
- denigrate an individual by reason of colour, race, ethnic or national origins, religion, gender, sexual orientation or disability
What is Netsafe’s role under the HDCA?
Netsafe has the responsibility to help resolve reports related to alleged breaches of the 10 communication principles. We are not an enforcement agency, but we do have a high resolution rate. Some of the things we can do include:liaise with website hosts, ISPs and other content hosts (both here and overseas) and request them to takedown or moderate posts that are clearly offensive
use advise, negotiation, mediation and persuasion (as appropriate) to resolve complaints
inform people about their options if they wish to apply to the District Court
If we can’t resolve things, then the person who reported to us may apply to the District Court eg for a takedown order, against the author or host of the allegedly harmful content – but you need to have tried to resolve the matter with Netsafe first. We will provide you with a Netsafe Summary that you can take to the District Court to demonstrate that you have been through our process.
What is a Netsafe Summary?
A Netsafe Summary shows that you have tried to resolve your incident and that there are no further options we can consider. It offers a summary of your report including the resolution options we have offered, attempted or completed.
Although a Netsafe Summary informs the District Court, it does not impact on the decision the District Court makes. Once a Netsafe Summary has been provided to you, Netsafe will close your report and will no longer be involved.
What can the District Court do?
The District Court will deal with cases of harmful digital communications that Netsafe hasn’t been able to resolve. The court will determine whether the person harassing someone has seriously breached, will seriously breach or has repeatedly breached one or more of the 10 communication principles. The court has the power to order:material to be taken down
cease and desist orders
someone to publish a correction, an apology or give you a right of reply
the release the identity of the person behind an anonymous communication
Anyone who ignores the District Court’s orders can be prosecuted and penalised. The penalty is up to two years in prison or a fine up to $5,000 for an individual and up to $20, 000 for a company.
What are the criminal penalties under the HDCA?
The criminal penalties include:A fine of up to $50,000 for an individual or up to $200,000 for a body corporate, or up to two years jail for posting or sending a digital communication with intent to cause harm
Up to three years’ jail for the new crime of incitement to suicide where no attempt at suicide is made.
ADVICE FOR PARENTS ABOUT THE HDCA
The most useful thing for parents to understand about the Harmful Digital Communications Act is the way the 10 communication principles define what is good or bad behaviour online.
How does the HDCA apply to young people?
Anyone in New Zealand including young people or parents on behalf of their child can get help from Netsafe. The options available under the Act will reflect the age of the people involved in an online incident.
What do the criminal offences under the HDCA mean for young people?
A criminal offence under the HDCA is subject to the same youth justice processes that apply to other offences. This means the offences will not be applied to children under the age of 14, but can be applied to young people aged 14-16 under the youth justice system.