Are You at Risk from the Harmful Digital Communications Act?

July 2015

If you weren’t aware of the implications of the Harmful Digital Communications Act then you should be because they are significant (up to a $200,000 fine) and you could be at risk.

If you host a website, LinkedIn identity, Facebook page or app that other people can post to, you may be legally responsible for their content, unless you follow the recommended ‘Safe Harbour’ process.

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.

So what is the “Safe Harbour” process?

Firstly 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 but to be protected you have to follow it exactly.

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 and
  • Follow specific steps within the fixed timeframes when you receive a complaint.

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. Receiving messages

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.

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.