The Act includes a new criminal offence to help tackle the most serious instances of bullying and harassment by people using digital technology. It’s now illegal to send messages and post material online that deliberately causes a victim serious emotional distress.
The offence – causing harm by posting digital communication – is punishable by up to 2 years' imprisonment or a maximum fine of $50,000 for individuals and a fine of up to $200,000 for companies.
If someone is charged with the offence, the case will be heard in court. The court will take into account factors such as the age of the victim, the context, how widely the material spread, and whether what was said or implied was true or false. The court will also weigh up people’s right to freedom of expression.
The Act established an “approved agency” to resolve complaints about harmful digital communications, providing a quick and efficient way for victims to seek help from an independent body.
NetSafe has been appointed at the approved agency. Its role includes advising people what action they can take to resolve a problem; investigating serious complaints and attempting to reach settlements between complainants and content authors; and liaising with website hosts, internet service providers and other intermediaries (both here and overseas) and requesting them to take down or moderate content that’s clearly harmful.
The District Court has a new civil process that will provide a speedy, efficient and relatively cheap legal avenue for dealing with serious or repeated harmful digital communications.
The court will deal with cases where it’s alleged someone has or will suffer harm, and will look into whether there’s been a serious breach, a threatened serious breach or a repeated breach of one or more of the 10 communication principles outlined in the Act.
Members of the public need to go to NetSafe before they can apply to the court. Police can apply to the court (without going through NetSafe) when a communication threatens a person’s safety. The Chief Coroner may apply for a takedown order about material relating to suicide, if publication is prohibited by the Coroners Act.
The court will be able to order a broad range of remedies, including:
So under this process, the court will order people or companies to do certain things – they won’t receive fines or prison terms. However, it is an offence to not comply with these new court orders; anyone found guilty may be sentenced to up to six months in prison or fined up to $5,000 (companies can be fined of up to $20,000).
When people harass or intimidate others via modern technology, they use services provided by online and telecommunications companies, and/or post content on websites, blogs, social media platforms and forums run by other people.
The Act recognises that these companies and people (known as online content hosts) shouldn’t necessarily be held responsible for others’ actions.
So the Act includes an optional “safe harbour” provision, which limits hosts’ liability for harmful content posted by others – but only if they follow a set process for handling complaints.
Under that process, hosts have to make it easy for you to make a complaint about content they’re hosting. They also have to follow certain steps within certain timeframes.
You can expect to know 48 hours to 96 hours after you make a complaint (and often more quickly than that) whether the content will come down or not. Just how long will depend on factors such as whether the host can contact the author of the content; whether the author agrees to your request; and how long the host and author take to see the complaint and act.
These timeframes may seem quite long in the fast-moving world of digital communications, but they aim to balance freedom of expression with reducing harm.
The Act strengthened the law against inciting someone to commit suicide. It is now illegal, regardless of whether or not the victim attempts to take their own life (previously, it was only an offence if the victim committed suicide or tried to). If convicted, an offender may be sentenced to up to 3 years in prison.
Until now, it’s only been illegal to aid, abet or incite suicide if a person actually attempts or commits suicide.
The new offence recognises the distress victims can suffer and sends a message that the potential consequences of this kind of harassment are too serious to ignore.
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