Connectivity has made the access to information easier in this modern age, but it has also led to the increase in harmful online behavior such as cyberbullying, cyber stalking, internet trolling and exposure to offensive or harmful content, amongst other things. After much debate, Fiji has introduced the Online Safety Act, 2018 (the “Act”) to promote online safety and deter adverse online behavior and misuse of personal information. While it was enacted on 18 May 2018, it will not come into effect until the commencement date is gazetted.

At the date of writing the Online Safety Act has not appeared in the Fiji Government Gazette and therefore the legislation is not, as yet, in force. We will amend this update when it is “gazetted”.

In this commercial law update, we consider how this newly-introduced Act is intended to work.

The Online Safety Commission

The Act establishes the Online Safety Commission (the “Commission”) as a body corporate which may receive complaints from any individual who has reason to believe that he or she is the target or recipient of electronic communication intended or likely to cause harm. Where the target is an individual under the age of 18 (“child”), the complaint may be lodged for them with their consent by a parent, legal guardian or school principal or Head Teacher. In the case of persons with mental incapacity, their legally appointed representative may file a complaint on their behalf.

The Commission investigates as it sees fit, after which it may respond by seeking an appropriate resolution, serving a notice requesting the removal of the offending material or by advising the complainant of any action that can be taken through an application to the High Court of Fiji (the “Court”). If the Commission is of the view that the subject matter or nature of the complaint is unlikely to cause harm to any person, is frivolous or vexatious, or that further action is inappropriate, it may refuse or cease to investigate. However, the complainant must be notified of the right to seek court orders under section 22.

Proceedings in Court

Section 17 of the Act provides for those who may apply to the Court for the issuance of an order under Section 22. Similar to complaints lodged with the Commission, proceedings may be brought before the Court by an individual who alleges harm or possible harm resulting from an electronic communication, a parent or legal guardian or school Principal or Head Teacher or a delegate in his or her place with the consent of the child concerned, or a legally appointed representative for an individual with mental incapacity. In addition, the Commission may also apply with the consent of the individual who has lodged a complaint under the Act or the Police if the electronic communication poses a threat to an individual’s safety. However, this should only be done if the Commission has first received the complaint and has had a reasonable opportunity to assess it.

When the Court considers a complaint filed with the Commission, it must consider whether there has been an attempt at resolution through mediation, and may refer it back to the Commission. Where necessary, the Court may even make interim orders.

What orders can a Court make?

Upon applications made pursuant to Section 17 of the Act, the Court may make orders against the respondent as well as a person controlling a website or online application on which the electronic communication is posted and accessible by the user (an “online content host”).

Orders against the respondent may include one or more of the following:

· the removal of relevant electronic communication

· the publication of a correction or apology

· restraining orders against similar communications with the complainant or continuation of such conduct

· such other orders, including payment for monetary compensation or damages as the Court deems just and appropriate.

In relation to an online content host, orders may include one or more of the following:

· the removal of public access to material that has been posted or sent

· the release of the identity of the author of unknown communication to the Court

· the publication of a correction

· allowing a right of reply to the applicant.

In the absence of a reasonable excuse, failure to comply with any of the abovementioned orders is an offence and upon conviction, an individual is liable to a maximum penalty of $5,000 and/or 6 months imprisonment. For a body corporate, the maximum penalty is $20,000 with $10,000 and/or 1 year imprisonment for a director, manager or an officer that is in charge for the time being.

Offences and Penalties Imposed by the Act

It is an offence pursuant to Section 24 of the Act to post an electronic communication that:

· is done with the intention of causing harm to an individual

· would cause harm to an ordinary reasonable individual in the position of the individual

· causes harm to the individual.

Upon conviction, the individual is liable to a maximum penalty of $20,000 and/or 5 years imprisonment. Where the offender is a body corporate, the maximum penalty is $100,000, with $50,000 and/or 7 years imprisonment for its director, manager or officer that is in charge for the time being.

The Act stipulates factors that the Court may take into account in determining whether a post would cause harm, and these include:

• extremity of the language, images or video used
• age and characteristics of the individual involved
• whether the communication was anonymous or repeated
• the extent of its circulation
• whether it is true or false
• context in which it appeared.

Section 25 makes it an offence to post an intimate visual recording of an individual without their consent or even threaten to do so. Where there is consent, it must be voluntary, expressed and informed and excludes that of a child. Upon conviction of this offence, the applicable maximum penalty for an individual is $20,000 and/or 5 years imprisonment. Where the offence is committed by a body corporate, it is $100,000 and $50,000 and/or 7 years imprisonment for a director, manager or officer in charge for the time being.

Power to make regulations

The Minister of Communications is empowered under Section 28 to make regulations necessary for achieving the purposes of the Act. This includes prescribing offences and penalties with the limits of $50,000 and/or 7 years imprisonment for an individual, and $100,000 for a body corporate.

This commercial law update is not, and should not be relied on as, legal advice. It is provided for information purposes only.