Are You at Risk from the Harmful Digital Communications Act?

By | October 19, 2015

200K-fine

You probably heard about, but didn’t pay too much attention to, the passage of the Harmful Digital Communications Act back in July.

After all, it’s not as if you go about slagging off the competition or your customers, right?

Well, sorry, you DO need to be aware of the implications of the Act, because they are significant — and you ARE at risk, most likely, whether you realise it or not.

Why?

Because in these modern, crowd-sourced, socially-connected times, if you have even so much as a LinkedIn identity or a Facebook page, you may be legally responsible if you provide a venue to host any harmful digital communications, whether you created such content or not.

If you host a website or app that other people can post to, you may be legally responsible for their content. Content may include comments, messages, videos, photographs, pictures, sound recordings or any other form of digital message.

If, for example, someone posts a comment to your Facebook page, making disparaging comments about someone else, you’re responsible (unless you follow the recommended ‘Safe Harbour’ process which we’ll talk about shortly).

So what exactly constitutes Harmful Digital Communications?

Here are the principles as defined by the Act:

Principle 1
A digital communication should not disclose sensitive personal facts about an individual.

Principle 2
A digital communication should not be threatening, intimidating, or menacing.

Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4
A digital communication should not be indecent or obscene.

Principle 5
A digital communication should not be used to harass an individual.

Principle 6
A digital communication should not make a false allegation.

Principle 7
A digital communication should not contain a matter that is published in breach of confidence.

Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9
A digital communication should not incite or encourage an individual to commit suicide.

Principle 10
A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

These are not the sorts of principles that marketers would normally break, of course. But, as we’ve noted above, we’ve moved on from the days when businesses could control everything that appears on their digital properties.

The Good News: Safe Harbour

You cannot be held responsible for content that other people post if you follow the ‘safe harbour’ process outlined in the Harmful Digital Communications Act.

Here’s what the Ministry of Justice advises concerning the Safe Harbour Process:

Protection through safe harbour

You can’t be held legally responsible for content someone else put on your website or app if you follow the ‘safe harbour’ process in the Act. To be protected you will have to follow it exactly.

You don’t have to use safe harbour

You don’t have to follow the safe harbour process but you are only protected from legal responsibility if you do.

If you don’t follow the safe harbour process you can be prosecuted for content on your site, but that doesn’t mean you will.

Safe harbour does not affect any other rights and defences you have as an online content host. You can still immediately remove content that breaches your terms and conditions. You can use your contract or terms of use to defend your decision if you take the content down straight away.

Anyone can make a valid complaint

A person may complain:

  • on their own behalf
  • on behalf of someone else
  • in general if the content is illegal.

Before you can claim safe harbour

If you want to claim safe harbour you have to:

  • Make it easy for people to contact you with complaints about content posted by another person – your contact details need to be:
    • Easy for users to find on your website;
    • Set up so it is easy for people to make a complaint that contains the information outlined in the Act (see the sample forms, below) and
  • Follow specific steps within the fixed timeframes when you receive a complaint.

How to use safe harbour

The main steps of the safe harbour process for online content hosts are listed below. You only have to follow them if you want safe harbour to apply.

  1. When you receive a complaint about harmful or illegal content you have to:
    • take out the personal information, unless the person who made the complaint says you can pass it on, and
    • send a copy to the author of the content as soon as possible, within 48 hours of receiving it.
  2. Tell the author:
    • they have to respond within 48 hours if they want to send a counter-notice and
    • what information they have to put in a counter-notice.
  3. If you can‘t contact the author after making reasonable efforts to, you have to remove the content within 48 hours of receiving the initial complaint.
  4. If the author responds within 48 hours of receiving the complaint notice, and says they agree to the content being removed you have to remove it as soon as you can.
  5. If the author doesn’t agree to the content coming down, the content stays where it is (but you may still decide to remove it if, for example, it breaks your user terms and conditions).
  6. If you leave the content where it is you have to tell the person who made the complaint what the author decided.
  7. If the author doesn’t respond, you have to remove the content 48 hours after sending the author a copy of the complaint.

If you follow the safe harbour process you don’t have to judge whether the content is lawful or harmful. All you have to do is follow the steps and the timeframes, and no civil or criminal proceedings can be brought against you for that content.

Details about the safe harbour provision and the complaints handling process are outlined in sections 23 to 25 in the Harmful Digital Communications Act 2015.

Receiving messages

A message is ‘received’ when it enters a system set up to receive your messages. The clock starts ticking even if you don’t have your email application running or haven’t downloaded information from your website or when your phone is off.

If you want to use safe harbour you have to make sure you don’t get run out by the clock. You need to check regularly if someone has contacted you with a notice of complaint or counter-notice and have someone else check it when you are not able to. If you do not respond within the required time you lose your safe harbour protection.

The safe harbour process

This diagram shows the process you have to follow to stay within the safe harbour.

safe-harbour-flowchart

For more information (and the necessary forms) visit the Ministry of Justice website.

You might also sign up for our Social Media Marketing course where we cover what you need to do to keep track of what’s happening on your social media properties (so that you can meet that 48 hour Safe Harbour deadline).

Since there’s a possible fine for corporates of up to $200,000, it’s probably a good idea to take appropriate precautions, don’t you think?