Introducing the Harmful Digital Communications Act 2015

Introducing the Harmful Digital Communications Act 2015
Wednesday December 2, 2015

With 24/7 Internet access now the norm rather than a novelty, people are spending more of their time online. Unfortunately, some people use the Web to bully or harass others, whether it’s schoolchildren teasing a classmate or an anonymous troll ripping into a celebrity on Twitter. Bullying has definitely made the leap in the digital age, creating new issues for the law to respond to. Existing legal tools used to address cyber-bullying include the torts of defamation and harassment. However these remedies are expensive and time-consuming to acquire. A new tool available to victims of cyber-bullying is the Harmful Digital Communications Act 2015 (HDCA). The Act aims to “mitigate harm caused to individuals by digital communications; and provide victims of harmful digital communications with a quick … means of redress”. This post explains how the HDCA achieves its purpose and discusses its implications for individuals and content hosts.

Bullying has definitely made the leap in the digital age, creating new issues for the law to respond to. Existing legal tools used to address cyber-bullying include the torts of defamation and harassment. However these remedies are expensive and time-consuming to acquire. A new tool available to victims of cyber-bullying is the Harmful Digital Communications Act 2015 (HDCA). The Act aims to “mitigate harm caused to individuals by digital communications; and provide victims of harmful digital communications with a quick … means of redress”. This post explains how the HDCA achieves its purpose and discusses its implications for individuals and content hosts.

This post explains how the HDCA achieves its purpose and discusses its implications for individuals and content hosts. Three avenues of redress If an individual has suffered or will suffer “serious emotional distress” from “any form of electronic communication”, they eventually will have three avenues of redress. The first avenue will be for the affected individual to lay a complaint with the Approved Agency. However this part of the Act is not yet in force but should be active by July 2017 or earlier. The government is using this time to decide who will fill this role.

The Approved Agency is tasked with managing and resolving complaints as well as providing education on online safety. After assessing the complaint, the Approved Agency will “use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints”. The second avenue will be for the affected individual to apply for an order from the District Court. Again, this part of the Act is not yet in force but should be active by July 2017 or earlier. An individual can only apply for a court order if the Approved Agency has “had a reasonable opportunity to assess the complaint and decide what action (if any) to take”. Even if this requirement is met, the District Court can still refer the complaint back to the Approved Agency. If the Court hears the complaint, it must be satisfied that “there has been a threatened serious breach, a serious breach, or a repeated breach” of the “communications principles” set out in the HDCA. These principles are central to the Act because they set out the boundaries for acceptable digital communications. If the Court finds that there has been a serious breach of the communications principles, it can issue a broad range of orders including a takedown order or an order requiring the defendant to refrain from the conduct in question. The HDCA also creates two new criminal offences. It is an offence to fail to comply with an order made by the Court and it is an offence to post a digital communication with the intent of causing harm to the victim. The penalties for both offences include fines and imprisonment. The third and final avenue available to the affected individual is to approach the online content host (eg. a blogging website) to remove the harmful communication from their website. This part of the Act is currently in force. When the Approved Agency is chosen, it will be able to take this action on behalf of an individual. Within 48 hours of receiving the complaint from the affected individual, the host must notify the author of the communications in question of the complaint. If the author cannot be contacted, the host must remove the content within 48 hours. If the author can be contacted, then the author has a further 48 hours to submit a counter-notice. In the counter-notice, the author can permit or prohibit the host from communications in question. The host must inform the complainant if the author refuses to allow the communications to be removed. If the host follows this process, it is rendered immune to any civil or criminal proceedings arising from the hosting of the harmful content.

The HDCA also creates two new criminal offences. It is an offence to fail to comply with an order made by the Court and it is an offence to post a digital communication with the intent of causing harm to the victim. The penalties for both offences include fines and imprisonment. The third and final avenue available to the affected individual is to approach the online content host (eg. a blogging website) to remove the harmful communication from their website. This part of the Act is currently in force. When the Approved Agency is chosen, it will be able to take this action on behalf of an individual. Within 48 hours of receiving the complaint from the affected individual, the host must notify the author of the communications in question of the complaint. If the author cannot be contacted, the host must remove the content within 48 hours. If the author can be contacted, then the author has a further 48 hours to submit a counter-notice. In the counter-notice, the author can permit or prohibit the host from communications in question. The host must inform the complainant if the author refuses to allow the communications to be removed.

If the host follows this process, it is rendered immune to any civil or criminal proceedings arising from the hosting of the harmful content. Implications for the future The HDCA aims to provide individuals affected by harmful or offensive online communications with legal remedies that are easier to access, require less time to take effect and help to address the source of the problem (ie. the harmful or offensive online communication). The HDCA also provides certainty and protection for website hosts, who in the past have been sued for defamation after hosting harmful or offensive online communication.However, the HDCA’s broad wording and somewhat invasive remedies have led some to claim that the Act infringes upon the right to free speech.

Whether there is any substance to these claims will be seen when the courts apply the Act to a particular set of facts. It is noted that the Court, when considering whether to make an order, must consider the purpose and content of the communications in question. It will be interesting to see whether the HDCA will be an effective tool for addressing the harm caused by cyber-bullying and similar misuses of online communication. Watch this space.

 

By Chris Patterson