Abuse of Process

Using the Harmful Digital Communications Act to Stifle Political Speech

This is an article about the way that the Harmful Digital Communications Act 2015 was misused to try and shut down political speech and opinion. The story involves two cases which came before the District Court. They describe how a supporter of the Chinese Communist Government tried to use the Act to have articles critical of the Communist Government taken down from Internet platforms. What is of concern is that New Zealand domestic legislation was being used – or misused as it turned out to be – to stifle political commentary that was critical of a repressive and authoritarian regime.

In this article I start by setting out a background to the Harmful Digital Communications Act (HDCA). How and why the legislation came to be is fading into the mists of time. Many commentators seem to assume that, like Athena, it sprung fully formed from the head of the Legislature. I shall discuss its genesis and its initial rationale before moving on to discuss the two cases where attempts were made to shut down political speech. The facts and details of each case are taken from the decisions of the Court.

A Law Commission Investigation

In October 2010 the then Minister of Justice, Simon Power, directed the Law Commission to investigate and report upon the state of the law regarding the relationship of bloggers and the news media.

In addition, the terms of reference required the Law Commission to consider the problem of online speech harms. In particular the Law Commission was asked to consider whether the existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and, if not, whether alternative remedies may be available.

In December 2011, the Law Commission published its Issues Paper “The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age”. Part 2 of the Issues Paper addressed speech harms and the adequacy of the then current legal sanctions and remedies.

After discussing the submissions that had been received from various organisations, the Law Commission observed that the existing and potential harms were significant, particularly for young people whose lives were increasingly enmeshed in social media. Their proposals involved a combination of legislative amendments and alternative complaints procedures.

First, a review of the current law including the Harassment Act 1997, the Telecommunications Act 2001, the Human Rights Act 1993 and the Privacy Act 1993 was recommended. A new offence of malicious impersonation of another was proposed.

Secondly, it was recognised that those who have been the victim of harassment or bullying, or whose reputations have been unjustifiably damaged, simply wish for the activity to stop or for the offending material to be removed. And yet, often these people feel they have no avenue of complaint or means of redress.

Two options were proposed. The first was the establishment of a Communications Tribunal that would operate at a level lower than the court system and which could administer speedy, efficient and relatively cheap justice to those who had been significantly damaged by unlawful communications. It was suggested that the Tribunal would only deal with cases which it judges would have met the threshold of a breach of the law. It should not be a port of call for those with insubstantial complaints.

Harm was an important factor and must have resulted or be demonstrably likely to result. That harm might be financial, or might be psychological harm such as distress, intimidation, humiliation or fear for safety.

There would be no power to impose criminal sanctions but other forms of civil enforcement would be available including the abilities to award monetary compensation up to a prescribed level; to order publication of an apology or correction; to order that a right of reply be granted; to order that the defendant cease the conduct in question (a type of injunction); and to make takedown orders against either the perpetrator or an innocent avenue of communication such as an Internet Service Provider (ISP). It might also make a declaration that statements made about the victim are untrue. Failure to comply with an order would be an offence.

The second option was the establishment of a Communications Commissioner — possibly attached to the Human Rights Commission. The role of this person would be to provide information and, where possible, assist in resolving problems in an informal manner, for example, through mediation. Where appropriate, he or she could also make recommendations to responsible authorities and individuals with the aim of preventing problems or improving the existing situation.

In cases of serious harm, the Commissioner could refer a complainant to the Police. In other cases, many of the harms discussed above could be resolved informally by a person with some authority contacting a website administrator to draw their attention to objectionable material and identifying the harm the post is causing or how it may be in breach of the law. A key function of the Commissioner would be to assist citizens to access the law.

There would be investigative powers vested in the Commissioner but no enforcement powers.

Submissions were called for and closed at the end of March 2012. From that time, the Law Commission began work upon its report to the Minister, but events moved swiftly.

The Herald Campaign

In the first quarter of 2012, the New Zealand Herald ran a series of in-depth articles upon the phenomenon and dangers of cyberbullying. In addition, New Zealand’s Coroners, Police and the Post Primary Teachers’ Association (PPTA), which represents secondary school teachers, all expressed concerns about cyberbullying and the ways in which the abuse of communication technologies was contributing to truancy, school failure and a range of adolescent problems including depression, self-harm and suicide.

In May 2012, in response to these concerns, the Minister responsible for the Law Commission, the Hon Judith Collins, asked the Commission to fast-track part of the project reviewing the adequacy of the regulatory environment for dealing with new and traditional media in the digital era. The Law Commission started work on a Ministerial paper which was presented in August 2012.

The Ministerial Briefing Paper

This paper recommended:

(1) the creation of a new criminal offence tailored for digital communication;

(2) amendments to the Harassment Act 1997, the Human Rights Act 1993, the Privacy Act 1993 and the Crimes Act 1961 to ensure that the provisions of these Acts can be readily applied to digital communications;

(3) the establishment of a Communications Tribunal to provide citizens harmed by digital communications with speedy, efficient and cheap access to remedies such as takedown orders and “cease and desist” notices; and

(4) new legal requirements for all New Zealand schools to help combat bullying of all kinds, including cyberbullying.

Following upon this briefing, the Harmful Digital Communications Bill was introduced by the Government in 2013. It was sent to Select Committee which reported back with a number of changes.

Before the Bill was enacted, the Government introduced a further Supplementary Order Paper with a number of minor changes and a redrafting of the “safe harbour” provisions which were later enacted as ss 23–25. The Bill was passed into law and received the Royal Assent on 2 July 2015.

The Act Becomes Law

Sections 3, 4, 5 and 6 commenced in November 2015, as well as s 22 dealing with the offence of causing harm by posting a digital communication, ss 23–25 dealing with the “safe harbour” provisions for an online content host, and amendments to the Harassment Act, the Privacy Act, the Human Rights Act and the Crimes Act. The other sections, including the civil enforcement regime, awaited the drafting of regulations and rules before coming into force in November 2016.

The Civil Enforcement Regime

The civil enforcement regime provisions of the HDCA were employed in the cases in question and which I will discuss shortly.

The regime was designed to address certain types of speech harms. The term does not appear in the Act but was a term used by the Law Commission to describe a process whereby an individual affected by a harmful digital communication may avail him or herself of civil remedies in the District Court.

Before the Court may consider an application, the matter must be referred or have been considered by an Approved Agency which is Netsafe. The Agency may resolve or attempt the resolve the matter. If it does not do so then and only then may the Court go on to consider whether or not to make orders under section 19.

Section 19 Orders

The Court may make 1 or more of the following orders against a defendant:

(a) an order to take down or disable material:

(b) an order that the defendant cease or refrain from the conduct concerned:

(c) an order that the defendant not encourage any other persons to engage in similar communications towards the affected individual:

(d) an order that a correction be published:

(e) an order that a right of reply be given to the affected individual:

(f) an order that an apology be published.

Orders may be made against Online Content Hosts and Internet Service Providers but they are not relevant to this discussion.

There are 11 factors that the Court must take into account before making a section 19 order.

The factors are:

(a) the content of the communication and the level of harm caused or likely to be caused by it:

(b) the purpose of the communicator, in particular whether the communication was intended to cause harm:

(c) the occasion, context, and subject matter of the communication:

(d) the extent to which the communication has spread beyond the original parties to the communication:

(e) the age and vulnerability of the affected individual:

(f) the truth or falsity of the statement:

(g) whether the communication is in the public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the affected individual or complainant:

(j) the technical and operational practicalities, and the costs, of an order:

(k) the appropriate individual or other person who should be subject to the order.

It should be noted that the fact that the communication is true does not provide a defence. It is a factor that must be weighed. Similarly, unlike section 17 of the Harassment Act, the public interest is not a defence but a matter to be weighed.

Where the Court is doing anything provided in section 19, it MUST act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. This is a clear legislative direction to consider Bill of Rights issues, especially the right of free expression guaranteed under the Bill of Rights Act.

In addition that Court must be satisfied that one or more of the Communications Principles contained in section 6 of the Act have been breached. The Communications Principles are really no more and no less than rules for polite discourse and are as follows:

Principle 1 - A digital communication should not disclose sensitive personal facts about an individual.

Principle 2 - A digital communication should not be threatening, intimidating, or menacing.

Principle 3 - A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4 - A digital communication should not be indecent or obscene.

Principle 5 - A digital communication should not be used to harass an individual.

Principle 6 - A digital communication should not make a false allegation.

Principle 7 - A digital communication should not contain a matter that is published in breach of confidence.

Principle 8 - A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9 - A digital communication should not incite or encourage an individual to commit suicide.

Principle 10 - A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Interim Orders

Importantly for the cases under discussion, the Court may make any section 19 order as an interim order which will subsist until final orders are made. Interim Orders may be made without notice to the other party.

The anomaly here is that the Court may make a takedown order on an interim basis but after a further consideration may reverse that order and allow the content to be reposted.

It should also be remembered that Approved Agency reference and assessment must take place before an interim order may be made.

The Background to the Cases

Peng (Portia) Mao is a veteran free-lance journalist who covers China-related issues in New Zealand as well as other subjects. Ms Mao wrote a number of articles about China and was involved as a researcher for a Stuff documentary entitled The Long Game.

Zhihong (Morgan) Xiao, an Auckland Transport employee, is a former local body candidate and frequent commentator on social media about China-New Zealand matters.

Some of Ms. Mao’s articles focussed upon Mr Xiao’s activities. She questioned whether Xiao had lived in New Zealand for 15 years as he had claimed, further suggesting he had been "fired by his boss". The articles were produced in the context of Xiao standing as a candidate in local body elections and were claimed to be in the public interest.

In addition Mao was asked in a WeChat group of around 500 members to answer some questions that had been asked by Xiao, including what Mao and others did in the documentary and how much they had been paid.

In a reply Mao referred to Xiao as "only worthy of being a dog". This was claimed to be a metaphor for Xiao's behaviour, implying that he was a "running dog", or propagandist, for the Chinese Communist Party in attacking the documentary.

In July 2024 Xiao brought proceedings under the HDCA citing Mao’s stories, claiming that her comments were defamatory, hurting his dignity and causing him to suffer "mental pressure".

On 29 July 2024 the Court made interim orders requiring Ms Mao to take down articles she had posted online regarding Mr Xiao and to apologise to him. Ms Mao had no opportunity to be heard at the time these orders were made.

The Judge stated that in terms of s 19(5) of the Act in making the order he had taken into account

“the content of the communication and its insulting, hectoring and tendentious tone, the extent to which the communication is spreading and the purpose of the communicator which seems to be to cause harm to the applicant.”

Mr Xiao’s Application

In his application Mr Xiao said that he had made a complaint to NetSafe and attached the complaint summary. His application was with respect to what he asserted were harmful digital communications made by Ms Mao. He provided contact details for Ms Mao.

Mr Xiao made his application “without notice". He did so by ticking a box requesting that the application be dealt with on that basis.

The explanation in that part of the application document states:

“Most applications will be processed as "on notice", which gives the defendant a chance to respond. If your application is urgent, for example in cases of ongoing serious emotional distress, your application can be processed “without notice", where the defendant doesn't have a chance to respond unless the Court says otherwise”

Mr Xiao sought orders against Ms Mao requiring her to take down or disable material, stop what she was doing and not do it again, not encourage anyone else to engage in similar communication and to publish an apology.

His narrative of the grounds read as follows:

“Portia (Peng) Mao constantly defames and bullys me online, defame me as “fired by his boss", which is defamatory and untrue, and calls me "dog" in many Wechat groups and also published articles calling me “worse than dog". She also has bad-mouthed me online and offline since 2019 uncontablly. As a public person my dignity is badly hurt by Portia’s malicious words which were widely published in NZ Chinese community. I also suffered mental pressure every time she did so.”

It was also alleged that Ms Mao had forwarded the article in question to a number of WeChat groups.

In support of his application Mr Xiao filed an affidavit. The contents of that document are set out in full in Judge McIlraith’s decision but it does contain some signposts about the nature of the application and why takedown orders were sought.

“Portia and I belong to different political parties; she is a member of Act, and I'm a member of Labour. We also have very different backgrounds and views on international matters. However, we are both New Zealanders, and I believe we should strive to be civilised human beings. Political differences should not be a reason for long-term defamation and bullying at me.”

“I am a well-known writer, election candidate, and government worker with a good reputation. As a person, I have dignity, and many of my friends are also witnessing this online bullying towards me. I can no longer tolerate her constant badmouthing.”

Despite Mr Xiao’s comments to the contrary clearly there was a political dimension to his complaint. In addition, it was made clear that there were elements of journalistic activity and commentary on both sides of the case.

Notice to Ms Mao

Because the application had been dealt with without any notice to Ms Mao she was not, of course, aware of the application or the judgment of the Court.

It was only when Mr Xiao sought that the orders be sealed and contemporaneously Ms Mao sought clarification as to what had occurred (after hearing of postings by Mr Xiao on social media) that Ms Mao was provided with a copy of the Court's decision.

It was not until 13 September 2024 that Ms Mao was ultimately provided with the original application made by Mr Xiao, the original judgment, the orders and the Court's minute.

She filed a notice to be heard on 1 October 2024 and subsequently an application to change or remove a Harmful Digital Communications order under s 20 of the Act.

The Case Comes to Court

The matter came before Judge Richard McIlraith on 2 May 2025. Obviously the matter was unable to be completed on that day and further hearing time was allocated on 29 and 30 May 2025. The Judge delivered his decision on 11 June 2025.

The Judge started by considering the pre-requisites before the Court can consider making an order under ss 18 or 19 of the Act.

He then considered whether or not the application should have been made on a “without notice” basis. The Judge observed

“Read objectively, Mr Xiao’s application and affidavit in support conveyed a sense of urgency on his part. It also said “NetSafe and I believe that mediation may worsen the situation as Portia might write a report about NetSafe's involvement". Mr Xiao said in evidence that this was stated after a verbal discussion with NetSafe”

The argument advanced on behalf of Ms Mao was that

“a “without notice” application was made by Mr Xiao without sufficient reason being provided for that approach as this was not a particularly urgent situation. To compound the difficulty, he deliberately (or otherwise) provided an incorrect email address for Ms Mao. Ms Mao was therefore never notified of Mr Xiao’s application. One email was apparently sent by the Registry which bounced back due to the incorrect details having been provided.”

Furthermore, no reasons were given by the Judge dealing with the “without notice” application. It was advanced on behalf of Ms Mao that this led to Mr Xiao “gloating online" about having won the case stating that Ms Mao had been "severely humiliated in New Zealand's mainstream society (not just in court)”.

But what was of further concern was the fact that Mr. Xiao knew that Ms Mao did not know about the proceedings and that her posts had to be taken down although she was unaware of what was happening. Mr. Xiao said:

“the defendant's illegal circumstances were serious, and the facts were clear, so the Judge did not give her a chance to defend herself before making the verdict… So when Portia Mao lost the case, she probably didn't even know that I was suing her".

It was argued by Ms. Mao’s lawyer, Mr Callum Frederic that this indicated that Mr Xiao’s application amounted to an abuse of process. It was also noted that Mr Xiao’s involvement of NetSafe left a lot to be desired. Ms Mao never received any contact from Mr Xiao prior to finding out about the orders being made by the Court. She was also never contacted by anyone from NetSafe.

The NetSafe report of attempts to resolve the matter states that Mr Xiao had claimed to contact Ms Mao directly in an attempt to resolve the issue. Ms Mao was never personally contacted.

In his evidence Mr Xiao accepted that he had never contacted Ms Mao directly and said that he had simply posted online in response to her article in July criticising its contents. His statement to NetSafe was apparently inaccurate.

Although the Judge was unable to conclude that Mr Xiao’s actions were in bad faith he was seriously concerned at the way he has approached his application.

The Judge hearing the “without notice” application was in an unenviable position. Mr Xiao was self-represented. Unlike many applications made pursuant to the Act, what on its face appeared urgent was not, in fact, urgent.

There was virtually no context provided by Mr Xiao. It is now apparent that this application should not have been made “without notice” as there was nothing that justified such urgency.

Judge McIlraith was concerned as to the lack of information provided by Mr Xiao and the absence of relevant context to the complaint.

The Judge was also concerned at the way in which Mr Xiao seems to have used the Netsafe process. There was no reason to why Ms Mao should not have been contacted by NetSafe.

There was no evidence as to why any conclusion could have responsibly been reached and, according to Mr Xiao, that any attempt to discuss the matter with Ms Mao would simply “worsen the situation as Portia might write a report about NetSafe's involvement".

Communications Principles and Harm?

It was suggested that some of the communications by Ms Mao made a false allegation and breached Communications Principle 6. The judge was not satisfied that this was the case. He went on to consider the allegation made by Ms Mao that Mr Xiao was “worse than a dog”.

The Judge noted that context needed to be considered. He noted that Ms Mao had worked as a journalist on a Stuff documentary entitled “The Long Game". This was aired on Stuff on 13 June 2024. Ms Mao worked as a researcher for the project. This was clearly a controversial documentary. Its focus was on what was said to be Chinese Communist Party influence in New Zealand.

Mr Xiao published three consecutive articles attacking The Long Game and those who were involved in it. The final article which referred to Ms Mao posed nine questions. The first question asked what Ms Mao and others did for the documentary and how much they had been paid.

Members of Ms Mao’s WeChat group sought a response and it was in her reply that Ms Mao said that Mr Xiao was only worthy of being a dog.

The Judge considered the evidence relating to the use of this expression in Chinese culture. He found it was commonly used and referred to a person in a subsidiary position. He noted that it

“ is frequently used in the context of a "running dog", in other words a dog undertaking tasks for its master. It is in a sense to some extent derogatory and belittling. It is, however a commonly used expression it would appear and I note that it is one which Mr Xiao has frequently used himself.”

He also noted that Ms Mao explained that the expression was a metaphor for Mr Xiao’s behaviour implying that he is the Chinese Communist Party’s “running dog" by reference to the consecutive articles that he had written attacking the Long Game documentary. She referred to him as in essence being a CCP propogandist.

Another article which formed the basis of Mr Xiao’s complaint was one that Ms Mao did not write but reposted. There was dispute about the precise meaning of the words used but irrespective of the precise meaning of the words, the reference that he was just the piece of shit that dogs love to eat the most or words to that effect were in breach of Principle 3 and were grossly offensive to a reasonable person in the position of the affected individual.

But as has so often been said, in the law context is everything. The Judge noted that an assessment must take into account Mr Xiao’s circumstances given his highly active role in debate at the time about the Long Game.

It was noted that this cannot have been unexpected criticism. Grossly offensive must be given its natural meaning. The article was not grossly offensive to him in his circumstances. In the Judge’s view view there was also no breach of other principles.

Proof of harm – serious emotional distress - was critical to the application. The Judge found that there was no independent evidence of harm being caused to Mr Xiao in respect of any of the articles about which he has complained.

Furthermore, it was not a case where harm could be inferred. Mr. Xiao had a history as a regular and robust commentator in the local Chinese communityand wrote in very robust terms.

A number of examples were traversed in the evidence. Although Mr Xiao said in evidence he had learned to moderate his comments his reaction in online posts to the Court’s earlier decision suggested otherwise. The Judge was not satisfied that Mr Xiao had suffered serious emotional distress.

That would have been an end to the matter but the parties had filed comprehensive submissions and the Judge felt obliged to comment upon them had he found the threshold had been reached.

Once again, context was important. While each communication taken out of context was at first blush potentially alarming, once context is added there was a completely different flavour to them.

This context that was totally absent from Mr Xiao’s “without notice “ application, or his complaint to NetSafe.

In addition, it appeared that Mr Xiao himself was responsible for many of the communications being read by others and he had clearly and deliberately contributed to the ongoing spread of the articles.

It was also noted that Mr Xiao had been involved in a significant number of legal proceedings including High Court defamation proceedings and was extremely active online choosing to become involved in many political debates particularly regarding Chinese politics in the Chinese community in New Zealand. He was considered by the Judge to be a highly assertive individual who was vigorously involved in political life and political debate, well used to the rough and tumble of political life.

The Judge noted – and it would seem with concern – that counsel argued and the Judge agreed

“Mr Xiao describes himself as a public figure and political candidate yet effectively seeks a permanent order prohibiting a prominent journalist publishing articles that are in any way critical of him. He submitted that the making of a final order cannot possibly be a justified limitation on the freedom of expression guaranteed under s 14 of the New Zealand Bill of Rights Act. He noted that many journalists in New Zealand regularly publish articles about political figures which are far more strident in their criticism than Ms Mao’s articles and are published far more frequently to a broad audience.”

The Judge also noted that

“the case has demonstrated the danger of “without notice” applications being made under this Act and the regrettable delay in a defendant having the opportunity to be heard.”

Thus the orders that had earlier been made were set aside.

But Wait, There’s More

But that was not the end of Mr Xiao’s involvement with the HDCA and with his attempts to stifle political discussion by using the provisions of the legislation.

In August and September of 2024 Mr. Xiao made applications under the HDCA against a Post journalist named Justin Wong.

Mr Xiao’s concerns about Mr Wong were when he reposted an article that Ms Mao posted an article on her LinkedIn profile. Mr Xiao asserted that this reposting encouraged people to take action against Mr Xiao.

Mr. Xiao sought orders that Mr Wong stop doing what hje was doing and not do it again, nor should he encourage anyone else to engage in similar communications.

This time the application was made on notice. There were two parts to the complaint. The first was that Mr Xiao claimed that Mr. Wong had been

“encouraged by Portia Mao to make false allegations and harassment on me and further encouraging others to harm me (sic). Netsafe summary has agreed that Justin Wong involves harassment and encouraging others to harm me , correspond to the violation of HDCA Principles 5 and 8. The matter of false allegations however I believe is arguable and needs to be determined by the Court.”

The second part of the complaint was that on 29 July 2024 Mr Wong emailed Mr Xiao and asked him a number of questions for an article he was going to run in the Post.

These questions referred to Mr Xiao’s comments on a WeChat post about a story by a Chinese journalist (Ms Mao) about Taiwanese independence and included a question as to whether Mr Xiao was “intending to intimidate the journalist or block her access from the diaspora”.

Mr. Xiao complained to Mr Wong’s employers at Stuff media who supported Mr Wong’s questions. Mr Wong repeated the questions in an email dated 6 August 2024.

Mr. Wong in answer to Mr Xiao’s claims justified the reposting of Ms. Mao’s article on LinkedIn, noted that Mr Xiao’s response to the questions was evasive, made the point that trying to ascertain if Mr Xiao’s opinions as expressed were personal or those of his employer AT, suggested that the first application was an attempt to harass Mr Wong and weaponize the HDCA by trying to prevent him from expressing his genuinely held views and legitimate public interest reporting and that as far as the second complaint was concerned his article was a matter of public interest and concern.

Mr Xiao disagreed, suggesting that the purpose of the interview was to run a story about a “culture of fear and intimidation inside New Zealand’s mainland China diaspora against those who publicly criticize the Chinese communist party and was an attempt to portray him as someone who intimidated people.

The application came before Judge Davenport KC on 2 July 2025, some weeks after Judge McIlraith had delivered his decision.

The Wong Hearing

The Judge considered the issue of eligibility to bring the proceedings and concluded that

“Mr Xiao is eligible to bring these proceedings because he alleges that he will suffer harm because of the digital communication. He satisfies the requirements of s 12 HDCA Act for the first complaint as he has a report from Netsafe who had a reasonable opportunity to assess the complaint and indicate what action, if any, to take.”

The second complaint had not been referred to Netsafe and thus the threshold in the Act had not been met.

The Judge went on to consider whether there had been a breach of the communications principles in section 6 of the HDCA.

Mr Xiao had claimed that there were breaches of principles 2, 5, 6 and 8. The Judge had to consider if these principles had been breached, whether the breach was serious and repeated and whether the breach had caused or was likely to cause harm to an individual.

The Judge then made the following observation about the purpose of the Act:

“But have the communication principles been breached at all? The Harmful Digital Communications Act exists for the purpose of protecting society and individuals from those who would harm them by making digital communication at the time of an increasing number of keyboard warriors and trolls. It is important that there are mechanisms for people to apply to have the issues resolved and the harmful communication removed.

However, it is not a mechanism for the suppression of genuine debate and discussion. Parties may of course express different opinions without being in breach of the HDCA if they are not “harmful”- that is intended to intimidate, harm, defame, harass and to make false allegations or to encourage others to do these things. It is always a mixed question of fact and law. In this case I have determined that the communications between Mr Wong and Mr Xiao do not amount to harmful digital communications under any of the Communication Principles. (My emphasis)

The Judge observed that the articles on LinkedIn can be characterised as legitimate expression of a different opinion about the involvement of the Chinese party and government in New Zealand.

There was no intimidation or threats by Mr. Wong in simply reposting the article. Robust debate, provided it does not stray into insult, is not a breach of the HDCA and the fact that Mr Xiao disagreed with Ms Mao’s position and/or her characterisation of him as being someone who has threatened her did not in these circumstances amount to a breach of Principles 2, 6 or 8 by Mr Wong.

Alternatively the Judge was of the view that if she was wrong, then the breach had not been so serious as to require a remedy. Mr Wong had removed the post from LinkedIn and there had been no asdverse comment or harm to Mr Xiao.

The Judge went on the consider the email with the questions that had been put to Mr. Xiao. It was a digital communication but did it cause serious emotional distress? The Judge held it could not and observed:

“The email was not designed to harm Mr Xiao as it just asked a series of questions which Mr Xiao was free not to answer. It was designed to seek information for the publication of the article which was published subsequently…

The questions were not liked by Mr Xiao, and he complained to Mr Wong’s manager about them. Nonetheless asking questions for an article to be published did no objective harm to Mr Xiao. The questions were not intended to intimidate, harm, defame, harass or to make false allegations or to encourage others to do these things – they were information gathering.”

The Judge went on to make the following ringing and principled comment

“It would be a sad state of affairs if simply sending an email requesting answers to questions which Mr Xiao could choose not to respond to amounted to a harmful digital communication without more….It is an attempt to prevent genuine reporting of different views from those held by Mr Xiao. No party can use the Act to muzzle genuine comment and different views.”

Mr. Xiao’s application was dismissed.

Commentary

Ms. Mao’s application to set aside the interim orders was backed by the Free Speech Union. Barrister Callum Frederic was briefed to appear for her. Mr. Wong was represented by media law expert Robert Stewart KC. Mr Xiao represented himself.

The first case illustrates the care that must be employed in the initial stages of a case reaching Court. It is the practice for the file to be referred to a Judge who must determine whether the threshold matters in section 12 HDCA have been reached and to make directions as to the future conduct of the case including directions as to service and timetabling orders if these are necessary.

Because many applicants see the “without notice” process as advantageous and one which can put the other side on the back foot, such applications are made. These applications, as Judge McIlraith observed, must be carefully scrutinized.

In the first case political speech and commentary were an issue. Although it is not directly relevant, in the United States under the freedom of speech provisions of the First Amendment, political speech and discourse is accorded the highest protection and is subject to a strict scrutiny test.

That test is not available in New Zealand and political speech falls under the protections of the freedom of expression provisions of the New Zealand Bill of Rights Act. In these days where political speech can be very robust and more often than not performative in nature, where hyperbole seems to dominate and where partisan positions are taken and will yield no quarter it would be of advantage if similar protections to those in the US could be afforded to political speech.

There is a second element common to both cases and that is the journalistic element. Journalists are entitled to a number of privileges and protections. This was made clear when Police executed a search warrant in September 2014 on journalist Nicky Hager’s home and seized computers and electronic gear.

When the lawfulness of the search was challenged one of the claims made was that police were obliged to fully inform the judge of issues for and against granting the search warrant. Nicky Hager was described in the application for the warrant as a "political author", not emphasising that Nicky Hager was a journalist, even though the Crown accepted that he was one.

As a journalist privilege would attach to protect the confidentiality of information in his possession. The Judge issuing the search warrant was not told about that.

The Xiao cases do not involve journalistic privilege or the issue of a search warrant but as the Hager case makes clear journalists occupy a special position as representatives of the Fourth Estate and Judges must be alive to ensure that journalistic comment is not restricted or stifled as was the case with the making of the interim orders in the first case.

One cannot read these cases without developing a suspicion that some of the concerns that have been expressed by commentators such as Professor Anne-Marie Brady about Chines Communist infiltration into New Zealand society may not have some merit. Here was a case where an outspoken critic of the Communist regime was publishing material, largely for the Chinese community and was involved in a documentary critical of the regime.

Censoring criticism is a well-known ploy of totalitarian regimes – the Government of the People’s Republic of China is well versed in it and its myriad forms. It must be of concern, therefore, that legislation designed to address cyberbullying and material that causes serious emotional distress, and which allows in proven cases for the material to be removed, should be deployed as it was by Mr Xiao to shut down criticism and views of which he disapproved.

Fortunately for Ms. Mao, Mr Wong, the integrity of the HDCA and for the future of robust online debate the Courts would not uphold Mr Xiao’s spurious claims.

If you enjoyed this piece and would rather keep it casual , buy me a coffee.