Safe harbour provisions

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You may be legally responsible for all content on your website or app

If you host a website or app that other people can post to, you may be legally responsible for their content. You can’t be held responsible for content other people post if you follow the ‘safe harbour’ process outlined in the Harmful Digital Communications Act (the Act).

The Act aims to reduce the harm caused by cyberbullying and other forms of harassment and intimidation. It provides a way for people to protect themselves from legal responsibility for content other people post to their website, app or social media. It balances the need for victims to have harmful content removed with the author’s right to free speech.

For those who can't access the video above, we have created a transcript of the video.

Are you an online content host?

Do you host a website, app, game or other social media where other people can post and view comments or images?

An online content host is a person who controls an online system, such as a website or app, where content can be posted and viewed.

If you are an online content host you may be legally responsible for content on your site, even if you didn’t write or post it. Content may include comments, messages, videos, photographs, pictures, sound recordings or any other form of digital message.

The Harmful Digital Communications Act introduces a way for you to protect yourself from other people’s content. It’s called the ‘safe harbour’ process.

Not sure if you are an online content host? You may like to seek legal advice.

How to protect yourself when someone complains about content on your site – the ‘safe harbour’ process

Protection through safe harbour

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. To be protected you will have to follow it exactly.

You don’t have to use safe harbour

You don’t have to follow the safe harbour process but you are only protected from legal responsibility if you do.

If you don’t follow the safe harbour process you can be prosecuted for content on your site, but that doesn’t mean you will.

Safe harbour does not affect any other rights and defences you have as an online content host. You can still immediately remove content that breaches your terms and conditions. You can use your contract or terms of use to defend your decision if you take the content down straight away.

Anyone can make a valid complaint

A person may complain:

on their own behalf
on behalf of someone else
in general if the content is illegal.

Before you can claim safe harbour

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 (see the sample forms, below) and
follow specific steps within the fixed timeframes when you receive a complaint.

How to use safe harbour

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.

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.
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.
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.
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.
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).
If you leave the content where it is you have to tell the person who made the complaint what the author decided.
If the author doesn’t respond, you have to remove the content 48 hours after sending the author a copy of the complaint.

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.

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(external link)

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.

The safe harbour process

This diagram shows the process you have to follow to stay within the safe harbour.

Safe Harbour process flowchart

Forms

For a complaint or a counter-complaint to be valid it has to contain all the information required under the Act. For you to claim safe harbour you have to provide an easy way for people to contact you with the information required.

You must protect privacy

You cannot pass on any information about the person making the complaint, or the author, unless they say you can.

Sample forms

A form is an easy way to indicate what information is needed. We’ve prepared some sample forms that you can link to, rebrand and reproduce them for your own website.

To make a complaint, or counter-notice, the person does not have to use a form. They only have to include all the relevant details in their notice.

Notice of complaint [DOCX, 37 KB]

Counter-notice [DOCX, 33 KB]

PDF versions

Notice of complaint [PDF, 117 KB]

Counter-notice [PDF, 77 KB]

Note: If you have trouble accessing the templates above, please contact hdc.justice@justice.govt.nz

Contact details

The complaint and counter-notice must include full contact details. That helps prevent anonymous and malicious complaints and counter-notices. If they do not provide all the information you asked for at first you can go back and ask for more.

If parties agree to share contact details they may be able to resolve the issue themselves so you don’t need to be involved.

Details of why the content is illegal or harmful

Explaining the reason for the complaint helps:

you, as content host, decide if you should take advantage of the safe harbour protection for that content (you might decide to remove the content immediately if it is offensive or breaches your terms and conditions)
the author understand the effect their content has had on the person making the complaint and decide if they should have it taken down.