More misuse of Harmful Digital Publications Act?

The Harmful Digital Publications Act was promoted as a way to address online bullying, especially of young people, but here is another claim that it has been used to try to suppress critical information. ‘Mason Bee’:

There is a flaw in New Zealands Harmful Digital Communications Act that is being exploited to take down content on the Internet. Because most allegations have to go through the Approved Agency (NetSafe) before going to the courts anyone can start a trivial, frivolous, or vexatious case with them without having to prove that they had suffered the level of serious emotional harm that is required by the law.

I don’t know whether the HDCA is effective at addressing online bullying and abuse, but it has been misused be vexatious online bullies since 2015. A year before the HDCA came into force some of the worst online abusers in New Zealand duped a judge in trying to prosecute me and shut this site down because I kept exposing there attacks here. See:

I was notified again recently be Netsafe of a complaint from the same person, Marc Spring, who didn’t like being exposed here or in the Whale Oil book, along with co-online bully Cameron Slater.  Once again Spring appears to have not followed procedures defined in the act properly.

Mason Bee:

To make matters worse, NetSafe doesn’t appear to be keeping any records of the numbers of these cases. When asked how many public figures had sought to use the process they refused the OAI request on the grounds that they would have to search over 7000 records. With almost 3000 of those records coming from 2018 this is a hidden problem that is only going to get worse.

Netsafe have a job to do, and have to try to deal with both legitimate and frivolous or vexatious complaints.  I found them ok to deal with, but they didn’t provide me with any details about the complaint. They can only liaise and moderate, and if that doesn’t resolve issues it can become a police or court matter if there is merit in the complaint (although as I have found out, cases without merit resulted in lengthy and costly court proceedings).

Mason Bee:

How do I know this? Because I was targetted by a minor politician who decided to use the NetSafe process and demand that I change a post and cease writing about her in the future.

That post is titled Suzie Dawson and the Whistle-blower

This is the story of how I have ended up in the unenviable position of whistle-blowing on Suzie Dawson and Internet Party New Zealand.

This is the story of how I have ended up in the unenviable position of whistle-blowing on Suzie Dawson and Internet Party New Zealand.

It all came to a head for in March of 2019 when I wrote a post called Who is Suzie Dawson: Exile or Fraud? In it I questioned her claims, her history, warned people about her conduct, asked more questions and published a, then unanswered, complaint to the Secretary of the Internet Party saying I believed she had;

When the Internet Party Secretary replied, almost a month after the initial complaint, he refused to escalate the complaint and dismissed it as personal attack, not in the interests of the Party and because I had already published it online. Nothing was heard from Suzie during this time and she continued to ask for donations using the name and imagery of the Internet Party.

Then, in May, I received an email.

The same standard email I received from Netsafe saying they wanted to chat about a complaint that had been made.

At first I was absolutely sure it could not be Suzie Dawson. There was no way that a public figure who purports to fight for whistleblowers and journalist’s could be stupid enough to try and invoke a law made to protect teenagers from online bullying in order to silence criticism against her.

It turned out I was wrong. Suzie Dawson, in an act of lawfare, used New Zealands Harmful Digital Communications Act (2015) to try and get me to remove statements from my website and to stop me writing about her in the future. She used a cyberbullying law to try and remove my right to Freedom of Expression.

I doubt there is a more perfect example of how she really feels about whistle-blowers or journalists.

If I had not been in a position where I had access to legal advice it is likely I would have been forced to alter or withdraw my posts, possibly even take down my website, in fear of litigation.

I’m not going to make any judgment on this specific issue, I’m merely giving it more of an airing because both online abuse and misuse of the HDCA and the courts as a weapon by online bullies, or of attempts to suppress information by people involved in politics is of  public interest.

If Suzie Dawson wants to put her side of the story forward in response here in a reasonable manner I offer her a right of reply.

I presume that legitimate complaints of online bullying are being dealt with by Netsafe, and some of them surface as prosecutions in the courts.

But I think that more information about misuse and abuse of the HDCA is needed. This is an important public online issue.

I think that it is important that Netsafe deal with valid complaints of online bullying, but also that people are aware their rights when subject to frivolous or vexatious complaints. The more extreme examples will be obvious, but there is likely to be a more murky middle.

Misuse of Harmful Digital Communications Act?

Is this a legitimate use of the Harmful Digital Communications Act? Or a businessman being held to account by media using it to punish journalism?

Newsroom: Avery targets Newsroom over ‘digital harm’

Former New Zealander of the Year Sir Ray Avery has laid a complaint against Newsroom.co.nz under the Harmful Digital Communications Act over a series of news reports on his background, products and promises.

Avery has told Netsafe, the legal agent for considering complaints under the Act, the reports have caused him serious emotional distress and amount to a form of digital harm – and wants Newsroom to consider removing them and to agree not to write further news stories about him.

“Ray believes these are written with the purpose of harassing him and contain false allegations,” Netsafe has told Newsroom.

It is one of the first times the Act has been used against a media company publishing news reports. Most instances envisaged by Parliament and which have been the subject of complaints have been online and social media harassment.

I thought that was the intent of the Act. Rich business people have other legal options.

The law aims to deter, prevent and lessen harmful digital communications. This includes cyber bullying, harassment and revenge porn posted online through emails, text, websites, applications or social media.

Netsafe executive director Martin Cocker said the Act did not exempt media coverage, although most complaints focused on individuals using digital media against other individuals. It was not up to his agency to determine if a breach of the Act had occurred but to try to resolve the dispute. It was for the complainant if he wanted to take the matter on to the district court.

Newsroom aren’t backing down

In his complaint, which Netsafe has referred to Newsroom for response, Avery cites five of the numerous stories this site has published on his planned public fundraiser of $4 million for LifePod incubators, his previous product promises, and the views of more than a dozen people who had worked with him in the past.

Newsroom found none of the three main products highlighted on his charity Medicine Mondiale’s website had gone into production, that the LifePod had not yet been granted international standards certification and clinical trials said to be underway in India could not be independently confirmed.

Exaggerated claims by media of his role at the Fred Hollows Foundation helping people regain their sight had been perpetuated over the years in coverage of his personal awards such as the 2010 New Zealander of the Year title.

Avery acknowledged in a taped interview with Newsroom that a key aspect of the LifePod fundraiser, that the products would help save one million babies, had been a ‘marketing’ number.

Last week, when the Netsafe complaint landed at Newsroom, we were ready to publish a further investigation – and did so – showing Avery emailed a University of Auckland researcher in 2015 trying to have a journal article on a trial of his Acuset IV drip product suppressed – telling the academic: “You really don’t want this from a career perspective”. Avery told Newsroom the university did not have his permission to publish the results of its research.

I obviously don’t know all the details, but on the surface I think this looks like an attempt to punish or coerce media coverage that Avery doesn’t like.

I don’t think this is what the Harmful Digital Communications Act was intended for.

(I may have been the first person taken to court over the Harmful Digital Communications Act, in 2015. The numpties tried it on a year before it came into effect, and an embarrassed judge quickly threw it out when this was pointed out. One of those numpties is still trying to blame their incompetence on the Court.)

Farrar only blames the judge

David Farrar has posted at Kiwiblog again on the court order that disrupted this site a couple of weekends ago – Judge got it wrong on HDCA.

Amazingly the Judge did not realise the provisions of the Harmful Digital Communications Act which he relied on, were not to come into force for a couple of years.

I’m shocked a Judge would make such a wide ranging order, and not even have properly read the Act to realise most of it was not in force yet.

Comments on that post show that while the judge was ultimately responsible and allowed a mistake to go through he rectified it as soon as he  was aware of the problem.

Comments also do what Farrar didn’t, they pointed out the incompetence (at best) of person or persons involved in the court order, Marc Spring by the look of things with the assistance of Dermot Nottingham.

Here’s some of the comments, by people with obvious legal backgrounds.

In the Hager decision, the High Court made it plain that all relevant information, both factual and legal should be placed before a Judge who is considering an application made without notice to the other side.

A number of things should have been made clear to the Judge by the applicant. First, the Act under which the order was obtained was not yet in force. Second, the order requiring YourNZ to appoint a moderator was not available under the Act in any event. Third, there was no reason why George should not have been served with the application and given the opportunity to be heard. Presumably none of this was advised to the Judge. If that was done in the knowledge that the grounds did not exist, it seems a clear attempt to pervert the course of justice. If not, it says something about the legal skills of the applicant.

It is also a worry that a Judge, faced with a lay litigant invoking novel powers to abrogate the right to freedom of speech, should grant such an order without checking that he was able to do what he was being asked.

That is a worry.

The District Court Judge, Gary Harrison, is well respected by his colleagues and has a solid pedigree in law dating all the way back to being Justice Mahons assistant in the Erebus Inquiry. Clearly he had a bad day and dropped the ball but it is to his credit to have acted quickly to withdraw his decision when he realised the facts and law, as presented, were quite wrong.

Sounds fair.

Seems the lawyer who sought the order needs to be hauled up before a disciplinary committee. The lawyer is as much to blame as the judge for the foul-up, indeed significantly more so. This is even more so in an ex-parte application (where the judge makes a decision without hearing from the other party because of urgency etc). In such a case the person seeking the application is obliged to put all relevant stuff before the judge, not just the stuff that aids the application.

Litigants do not like the other party spouting off publically about matters before the court and judges tend to side with this. I possibly see the original judge’s ruling as being to in aid of stopping public disclosure of matters concerning the case. This could also explain why the judge is reluctant to release the papers concerning this to the other party. Perhaps the judge is being excessively sensitive about this or may have real concerns.

Except that in this case it was the litigants who spouted off publicly about matters they had put before the court.

I assumed that the order was applied for by a litigant in person. If it was a lawyer who made the application it is serious misconduct. The Judge in making any order under that Act is supposed to give a written decision; it would have been interesting to see that but I suppose that as the Act was not even in force, there is no need for the Judge to comply with it.

There’s been no indication a lawyer was involved. Why wouldn’t it  still be serious misconduct for a lay litigant?

Well, either that or apparent negligence (if we are going to be slightly charitable about it).  If there was a lawyer on either side then the judge should have been told.  If there were no lawyers involved then we get to whether the judge checked that the legislation was in force!

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball.

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball

And:

Yup, it is up there.

However, I think he will realise that and he will be kicking himself.

In his defence he might have relied on the supporting memorandum from the applicant and decided not to go behind it to check his jurisdiction under the enabling act.

And:

I had assumed that the person was represented and that it was a High Court proceeding. A High Court judge would have a ‘clerk’ (generally a junior lawyer) to check out these things. A District Court judge may not have had such assistance and so bears the onus of having to verify things but in practice often has to rely on memory or instinct or he/she would not get anything done.. A District Court judge would not have the time to reflect on things that a High Court judge would.

It was District Court.

Interesting comments.

Ultimately it was the judge’s responsibility as he signed the court order. But the appalling stuff ups,  either through incompetence or a deliberate attempt to pervert the course of justice, seem to have been due to the actions of non-lawyers. One way or another they seem to have tried to con the court.

I don’t know why David Farrar only blamed the judge.

Harmful Digital Communications Act

The Harmful Digital Communications Act passed it’s last vote in Parliament today with only five votes against. David Seymour had already stated his opposition but Greens also allowed a rare split vote with four of their MPs breaking ranks.

There’s plenty of doom and gloom and ‘the end of the online world as we know it’ comment in social media.

They could get really radical and act like responsible and respectful adults. But it’s easier to blame Government attempts (probably flawed) to protect people from unnecessary abuse and bullying.

Do unto others as you would find acceptable to have done to you sort of thing.

One can hope.

What should really happen is that Members of parliament and political parties should lead by example. There’s probably less hope for that.