Safe harbour: Should we be worried? An analysis of Clause 20 of the Harmful Digital Communications Bill, and its application to the law of defamation

Abstract

Liability of internet intermediaries for content created by third parties is a contentious area of defamation law. Recently, the law in New Zealand has begun to depart from English law, and move closer to strict liability. Parliament has responded with a ‘safe harbour’ in clause 20 of the Harmful Digital Communications Bill, which will provide online content hosts with conditional immunity from liability for content created by others. The author supports the creation of a legislative safe harbour for internet intermediaries, but highlights a number of deficiencies with clause 20 as currently drafted. This paper analyses the existing law, including possible defences, and clause 20. It also looks to other jurisdictions’ safe harbours, and concludes with recommendations on how clause 20 ought to be improved.