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.
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.
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 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.
A person may complain:
If you want to claim safe harbour you have to:
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.
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)
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.
This diagram shows the process you have to follow to stay within the safe harbour.
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 cannot pass on any information about the person making the complaint, or the author, unless they say you can.
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.
Note: If you have trouble accessing the templates above, please contact email@example.com
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.
Explaining the reason for the complaint helps:
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