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Cyber Bullying - on its way out?

November 26, 2015

The Harmful Digital Communications Act 2015 (the Act) became law on 2 July 2015. Sections 22 - 25 and Part 2 apply immediately, with the balance of the Act taking effect on a date to be determined, but no later than 2 July 2017.

Taking immediate effect – criminal liability

It is an offence to post a digital communication that causes harm to a victim, if the poster intended to cause harm, and if an ordinary reasonable person in the victim’s shoes would have been harmed by that post. A conviction can see individuals receive up to two years in prison or a fine of up to $50,000, while companies can be fined up to $200,000.

The Act provides limited protection from liability to websites (such as Facebook) that could host harmful content, provided the content was posted by a user, not by the host itself. To gain this protection the host must strictly comply with the procedures in the Act. For example, they must make it easy for a user to make a complaint. They must also attempt to forward a complaint to the author of the post, and unless the author objects, the post must be removed within 48 hours of the complaint (in some circumstances up to 96 hours). It is not an offence to ignore this procedure; the host simply loses statutory protection.

Part 2 of the Act amends other laws, including making it a criminal offence to motivate another person to commit suicide, and extending the meaning of harassment (in the Harassment Act 1997) to include situations where offensive material is posted online and remains there for an extended period.

Taking effect at a later date – civil remedies

The balance of the Act, not yet in force, contains two additional remedies for victims. Firstly, the Act puts in place a statutory body to assist with and investigate complaints, and if necessary, negotiate with website hosts to remove harmful posts. Again, it is not an offence for an individual or a host to ignore complaints or the statutory body.

Secondly, if the statutory body cannot negotiate the removal of a post or has not deterred a poster from repeat action the District Court can order that specific content be removed, that conduct be stopped, or that a correction, apology or right of reply be published. These orders can be made against the original poster as well as the website host. If necessary, the Court can order that the identity of an anonymous author be revealed to the Court. These remedies are in addition and separate to the criminal offences discussed above. Failure to comply with an order can see individuals receive up to six months in prison or a fine of up to $5,000, while companies can be fined up to $20,000.

Commentators recognise that the Act addresses an important and real need – protecting the vulnerable and limiting harmful behaviour. Opponents have criticised the Act as being too wide, leaving it open to abuse. Ignoring a complaint, however frivolous, means a website host loses protection from liability. It is feared that some hosts might therefore remove all content subject to complaints simply because it is easier or safer for them to do so. Critics fear illegitimate complaints could be used to unfairly target a person, publication or field of discussion, increasing compliance costs for hosts and limiting freedom of speech. Of course, time will tell how this plays out.

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