Safety First, Social Media Second: getting the download on the Online Safety Act 2018
Key Points
The Online Safety Act 2018 (Act) was enacted in May 2018 and has yet to be gazetted.
The Act is the first of its kind to be introduced in Fiji.
This reform means victims of online abuse will be able to seek redress outside of making a claim of libel and will also significantly increase the penalties that perpetrators may receive from the Court.
Introduction
The internet is often described as a lawless frontier where people find it difficult to obtain redress for harmful and defamatory comments. As access to the internet hits saturation point, the Fijian government has taken the first steps to better regulate harmful uses of the platform, including harmful jokes, revenge, retribution, cyber-bullying and cyber-stalking.
The Act is the first of its kind in Fiji as it allows people hurt by harmful electronic communications to seek redress. Previously, the avenues for redress were limited to an action for libel due to reputational damage; for example in the decision of Fiji Fashion Week Ltd v Radrodro [FJHC] HBC 143 of 2015 where the Defendant had posted harmful comments on Facebook and the High Court ordered $10,000 in damages due to the defamatory nature of the comments.
The functions of the Act are broader than protecting against online reputational damage. The Act establishes the Online Safety Commission (Commission) which aims to promote online safety, deter harmful electronic communication, investigate complaints and provide a means for redress for individuals who have suffered or may suffer harm as a result of an electronic communication.[1] In doing so, the Act will increase access to justice for victims of online abuse.
Making a complaint
Under the Act, victims of harmful electronic communication may make a complaint to the Commission. The Act extends the ability for certain people to make complaints on the behalf of ‘vulnerable’ victims, for example children and persons who suffer mental impairment, including:
parents;
legal guardians;
school principals;
the Commission; and
the Police.
Upon receiving a complaint, the Commission may choose to either investigate or refuse to investigate on the basis that the electronic communication is unlikely to cause harm, or the complaint was frivolous or vexatious, or where further action is unnecessary or inappropriate.[2]
If the Commission chooses to carry out an investigation, the Commission then has the power to:[3]
seek to resolve the matter, as appropriate;
serve a notice to the relevant person requesting the removal of the electronic communication; or
advise the complainant of any court action that can be applied to the High Court of Fiji.
Orders
After the Commission undertakes its investigation, applications may be made to the Court for:[4]
the removal of the relevant electronic communication;
a correction to be published;
an apology to be published;
the respondent to not send similar communications to the applicant or encourage any other person to send similar communications to the applicant; or
the respondent to not engage in any similar conduct.
The Court may also make any other order, including an order for the payment of monetary compensation or damages as the court deems just and appropriate in the circumstances.
Penalties under the Act
Failure to comply with the Act may attract the following penalties:
an individual may be liable to a fine not exceeding $20,000 or imprisonment for a term not exceeding 5 years, or both;[5] and
a body corporate may be liable to a fine not exceeding $100,000 and for a director, CEO, manager or officer a fine not exceeding $50,000 or imprisonment for a term not exceeding 7 years or both.[6]
Further penalties may also be incurred for failing to comply with an order, including[7]:
an individual may be liable to a fine not exceeding $5000, or imprisonment not exceeding 6 months or both;
a body corporate may be liable to a fine not exceeding $20,000 and for a director, CEO, manager or officer in charge to a fine not exceeding $10,000 or imprisonment for a term not exceeding 1 year, or both.
These penalties not only extend on what was previously available under the laws of libel in Fiji, the penalties under the Act brings are more in line with similar regimes, such as that under New Zealand’s Harmful Digital Communications Act 2015, which can attract a two-year prison sentence.
Conclusion
The Act is Fiji’s first concerted attempt to get serious on harmful electronic communications. Not only does the Act intend to open the process of seeking redress, it also looks to significantly increase the penalties available to the Courts in order to provide remedies and prevent repeat offenders.
Victims of harmful electronic communications will now be able to seek assistance from the Commission, including for the removal of damaging content in circumstance where the harm would not usually be covered by defamation and libel law. Perpetrators also face large fines and multi-year prison sentences, meaning people should think twice before clicking “post.”
This article is for general information and should not be relied upon as specific legal advice. Should you have any questions or comments concerning the information set out in this article please contact our team at Haniff Tuitoga Lawyers.
[1] Online Safety Act 2018, Objectives, Section 3
[2] Ibid, Section 15 (1)
[3] Ibid, Section 14 (3)
[4] Ibid, Section 22
[5] Ibid, Section 24
[6] Ibid
[7] Ibid, Section 23
