Harmful Digital Communications Act 2015

(1) This Act offers possibly the widest safe harbour protection for "online content hosts".  The Act also establishes a civil regime in respect of digital communications that breach one or more of the "Communication Principles".  The Communication Principles have very low thresholds, and the civil regime is yet to come into full force.  The Act establishes criminal offences for causing serious emotional harm by posting a digital communication and for inciting, counselling or procuring another person to commit suicide – even if that other person does not commit or attempt to commit suicide in consequence of that conduct.  An online content host may be liable under these provisions if it fails to comply with the safe harbour procedure.

(2) This Act offers protection from all civil and criminal liability, (excepting four particular categories of liability), provided the online content host follows a notice-notice-takedown procedure in accordance with Section 24 of the Act.

(3) "Online content host" means the person who has control over the part of the electronic system, such as a website or an online application, on which a communication is posted and accessible by a user.  

(4) Although the protection from liability is wide, including tortious liability such as under defamation or breach of confidence, Section 25(4) expressly states that it does not protect the online content host from four specific types of liability: (i)  breaching criminal name suppression orders/laws (section 211 of the Criminal Procedure Act 2011); (ii)  publishing certain details about bail hearings (section 19 of the Bail Act 2000); (iii)  copyright liability or any proceedings under the Copyright Act 1994; and (4)  any enactment that expressly overrides these safe harbour provisions.