E-signatures and electronic transactions, plus laws against spam and upsetting digital messages.
Harmful digital communications
Intent of the Act
The Harmful Digital Communications Act (HDCA) aims to deter, prevent and lessen harmful digital communications.
Digital communications are any form of electronic message, including texts, emails, photos and recordings.
Harmful digital communications include cyber bullying and harassment, eg:
- sending or publishing threatening or offensive material
- spreading damaging rumours
- sending or publishing sensitive personal information, eg embarrassing photos and videos.
Harmful Digital Communications Act (HDCA)(external link) — Legislation.govt.nz
Your rights under the HDCA
The HDCA has 10 communication principles, which say a digital communication should not:
- disclose sensitive personal facts about a person
- be threatening, intimidating or menacing
- be grossly offensive
- be obscene or indecent
- be used to harass a person
- make a false allegation
- break confidences
- incite or encourage anyone to send a deliberately harmful message
- incite or encourage a person to harm themselves or commit suicide
- denigrate a person’s colour, race, ethnic or national origins, religion, gender, sexual orientation or disability.
If you receive a digital communication that breaks any of these principles, you can complain to Netsafe. If they can't resolve your complaint, you can apply for court orders against the author or host of the communication. If you make a complaint or take court action, point out which principles have been broken.
The HDCA also makes it illegal to post a digital communication with the intention of causing serious emotional distress to someone else.
If things go wrong
Ask for harmful digital content to be removed
Make a complaint to the host of the online content. Most hosts provide a way for users to make complaints. Check also for any rules content authors must follow, eg community standards.
It helps if your complaint clearly identifies:
- your name, telephone number, physical address and email address
- specific content you want removed
- why you believe it is unlawful or breaches the communication principles, and has caused harm
- if you agree to your personal information being released to the content's author.
Make a complaint to Netsafe
The HDCA empowers Netsafe to investigate alleged breaches of the 10 principles and help find a resolution. If the person making the complaint isn't happy with the outcome, they can apply to the district court, eg for a takedown order, against the author or host of the allegedly harmful content.
Report and incident(external link) — Netsafe
Contact the Police
Contact the Police if the communication causes you serious emotional distress (eg an intimate image of you posted without your permission) is otherwise harassing, encourages suicide or threatens your safety.
Harmful Digital Communications Act FAQs(external link) — Office of the Privacy Commissioner
Example — Private photos
While they were in a relationship, Mark occasionally sent Kate naked pictures of himself when she was away on business. After they break up, Kate posts the pictures online. As her intention is to cause him emotional distress, Mark reports it to the Police. Mark can also ask Netsafe to help get the photos removed. If this doesn't work, Mark can apply to the district court for a takedown order.
Keep your devices and information safe with strong passwords. Find more cyber security tips on the CERT NZ website.
Getting started with cyber security(external link) — CERT NZ
Intent of the Unsolicited Electronic Messages Act
The Unsolicited Electronic Messages Act (UEMA), also called the anti-spam law, makes it illegal to:
- send spam to, from or within New Zealand
- use harvesting software to create address lists to send unsolicited commercial electronic messages, eg emails or text messages.
Unsolicited Electronic Messages Act(external link) — Legislation.govt.nz
Your rights under the UEMA
If you receive spam messages, you can complain to the DIA. They can fine an organisation sending the messages.
Spam is unwanted electronic commercial messages including emails, texts, faxes, SMS messages and multi- media message services. Spam is used to:
- promote products or services
- direct you to websites, social media site or shops.
Spammers might harvest email addresses from the internet, eg from websites or discussion boards, and add these to the spammer’s database. Sometimes they hack into — or are given access to — subscriber lists or databases.
Spammers may also use a computer programme to guess your email or phone number based on popular words, names and numbers.
When the UEMA applies
It covers commercial electronic messages, including email, faxes, instant messages and SMS (texts) sent to, from or within New Zealand.
When the UEMA doesn't apply
The UEMA does not cover:
- internet pop-ups
- response to a quote
- confirming a previously agreed arrangement
- warranty information
- factual information about an ongoing relationship, eg gym membership
- employment or benefit information
- products or services relating to a previous transaction.
Businesses can legally send you commercial electronic messages if you consent, eg you signed up to their newsletter or asked for a quote, and the message includes:
- accurate information about the business and its contact details
- a free way to unsubscribe that works within five business days.
Consent is more than just not clicking “unsubscribe”. Businesses may use an existing list or database of customers if their consent is already on record. You can agree verbally but the business should keep a record of this.
If things go wrong
The Department of Internal Affairs (DIA) enforces the anti-spam law. You can complain to the DIA if:
- you did not consent to being contacted
- you unsubscribed and continued to receive spam.
Businesses can be fined up to $500,000 and ordered to:
- pay you compensation for any loss suffered as a result of the spam
- pay damages equal to the profit they made through sending the spam.
Complain about spam(external link) — Department of Internal Affairs
Example — Spam text
Mary gets a text message telling her she's won a large amount of money in a European lottery. She replies to the text, and is asked for her email and an admin fee to receive her winnings. But she has not won any money. It's an advance fee fraud spam sent to lots of people. Mary reports it to DIA by forwarding the text to 7726.
Electronic transaction rules and rights
Intent of the Contract and Commercial Law Act
The Contract and Commercial Law Act (CCLA) sets out:
- when an electronic contract is formed
- when electronic communications are sent and received for legal purposes.
Under the Act, certain legal requirements that need to be made in writing can be met in an electronic form.
Contract and Commercial Law Act(external link) — Legislation.govt.nz
Your rights under the CCLA
Electronic transactions or communications are just as legal as those made on paper. Contracts made through electronic communications (e-commerce) and social media such as Facebook (f-commerce) are all legally binding as long as they are validly made.
When a contract is formed electronically
A contract is formed:
- by email or text, when the acceptance email or text arrives at the seller's email address or mobile number — not when it's read or sent
- when you buy something online, either after you see an order confirmation page or receive email confirmation
- for online auctions, eg Trade Me or eBay, when the time limit set by the seller is reached and the highest bidder has met the reserve price. The highest bidder must complete the purchase at that point.
If you buy something online from an overseas seller, your rights may still apply, but resolving issues and claiming your rights can be difficult.
Example — Highest bidder
Fiona has an automatic bid up to $150 on a bike being sold on Trade Me. When the auction is closing, she wins the bid and the bike is sold to her. Fiona changes her mind the next day. But she can’t cancel the sale unless the seller agrees to do so. The sale is a binding contract.
Private sales and second-hand goods
When you can provide something "in writing" electronically
You may provide something in writing electronically as long as it meets the general principles of contract formation and the specific requirements of the Electronic Transactions Act 2002, which requires electronic transaction requirements to meet sane paper-based legal requirements.
- the information must be easily accessible to use
- the recipient agrees to get it electronically, eg a scanned application form rather than a printed form.
Legal requirements for electronic transactions apply to all New Zealand laws, unless a law has its own rules about how information is recorded, given or kept, eg making a valid will.
Contracts and sales agreements
A signature usually proves someone's intention to enter into a contract. You can either print out documents and provide a scanned copy of your handwritten signature, or sign the documents electronically (e-signature).
To be accepted under the CCLA, an e-signature must clearly:
- identify the person signing (name, position and organisation)
- show they approve of the information in the document (statement agreeing to be legally bound by it)
- be appropriate and reliable given the purpose and circumstances in which the signature is required.
When an electronic transaction is sent and received
You send an electronic communication at the time it first enters an information system outside your control. With emails, this is usually when you hit send and an email enters the receiver’s server.
You receive an electronic communication at the time it enters your information system. For example, an email is received when it enters your inbox. In any other case it's received when the receiver becomes aware of it.