The Act includes:
- A new criminal offence, punishable by up to 2 years’ imprisonment, of causing harm by posting a digital communication.
- New ‘communication principles’ and a new agency to investigate complaints about digital communications against those principles.
- New civil remedies in the District Court for significant and harmful breaches of the communication principles.
- ‘Safe-harbour’ protections for hosts who follow a new complaints procedure.
What are Digital Communications?
‘Digital communication’ is broadly defined as any form of electronic communication, including any text message, writing, photograph, picture, recording or other matter that is communicated electronically.
New Offence
The new offence is punishable by up to 2 years’ imprisonment or a fine of up to $50,000 for an individual or $200,000 for a corporate body. The offence is committed if:
- a digital communication is posted with the intention of causing harm to the victim;
- the communication would have caused harm to ordinary person in the victim’s positon; and
- posting the communication in fact caused harm to the victim.
Approved Agency
The Act provides for an “Approved Agency” to investigate complaints about harm caused by digital communications, whether or not the issue complained of meets the elements of the criminal offence above. The Agency, which is yet to be appointed, will try to resolve any complaints and is required to establish and maintain a relationships with domestic and foreign service providers, provide education and advice. It must take into account 10 new “communication principles” when investigating complaints, being:
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.
District Court Process
If the Approved Agency is unable to resolve a complaint informally, an individual, a parent or guardian, a school, the police, or the chief coroner, may apply for orders from the District Court.
The Court must be satisfied that there has been a serious breach, threatened serious breach, or repeated breach of one or more of the communication principles and that this has caused or is likely to cause harm to an individual. If this threshold is met, and taking account of the communication principles, the Court may order the defendant to:
- take down or disable the material;
- cease or refrain from the conduct concerned;
- not encourage any other persons to engage in similar communications towards the affected individual;
- publish a correction or apology; or
- give the affected individual a right of reply
The Court may also order a host to:
- take down or disable public access to the material;
- disclose the identity of an author to the court; or
- publish a correction or give a right of reply.
Safe Harbour Provisions
The Act introduces ‘safe harbour’’ provisions which give protection to online content hosts against any civil or criminal proceedings in respect of the content complained of, provided that the prescribed process is followed. To access the defence, a host must:
- provide the author of the content with a copy of the notice of complaint (redacted if necessary) as soon as practicable but within 48 hours after receiving a complaint notice;
- notify the author that he or she may submit a counter-notice within 48 hours;
- take down the content if:
- if the author cannot be contacted after the host takes reasonable steps to do so,
- the author does not submit a counter-notice; or
- if the author’s counter-notice consents to a take-down; and
- if the author refuses to consent to a take down, the host must leave the content in place and notify the complainant of the author’s decision and (if the author consents to it doing so) provide the complainant with the author’s identifying information.
Privacy Act Changes
The Privacy Commission has welcomed the new legislation, which also amends the Privacy Act 1993 to allow investigation of matters which previously fell within the ‘domestic affairs’ exception to that Act. That exception will now not apply if the collection, use or disclosure of the information would be ‘highly offensive to an ordinary reasonable person’.
The Act also removes an exception to the Privacy Act’s information privacy principles regarding use and disclosure by which publicly available information could be re-used and disclosed, even if the original disclosure should not have been made. The changes mean that publicly available information cannot now be used or disclosed if it would be unfair or unreasonable to do so.
Tim Sissons is a Senior Associate at Quigg Partners.