Two well-known social media personalities are the subject of a recent High Court judgment (Hooper v Gee [2022] NZHC 1854) which provides useful guidance on the application of the Harmful Digital Communications Act, and demonstrates when social media blogging crosses the line from critique and debate to a harmful digital communication.

Key takeaways:

• Owners of small businesses may have standing to bring proceedings under the Harmful Digital Communications Act for comments directed at their business profiles, if posts attack the owners personally.

• Although online debate in today’s social media environment may often adopt vulgar and offensive terms (on both sides of the debate), the Courts will still take action if it crosses a line, and provide strong protective orders.

• Orders under the HDCA should be no broader than necessary, in order to be consistent with freedom of expression rights under the New Zealand Bill of Rights Act. In this case, it meant limiting to one year the orders restraining Ms Hooper from posting about Ms Gee on any social media platforms.

Background to the decision

This High Court judgment concerned social media posts the appellant (Pebbles Hooper - a well-known social media personality) made about the respondent (Bernadette Gee - the owner and operator of Magnolia Kitchen). Both women had a substantial number of followers.

In 2020, Ms Hooper made a variety of social media posts, predominantly on Instagram, about Ms Gee over the course of several months. Although about Ms Gee in her personal capacity, the posts were directed at the Magnolia Kitchen Instagram page. The posts alleged that Ms Gee was breaking Covid-19 lockdown restrictions by continuing to operate her food business and that Ms Gee was an abusive parent causing injury to her children and allowing them to drink alcohol.

Other social media users commented on Ms Hooper’s posts, also making negative comments towards Ms Gee. Ms Hooper and others also contacted Oranga Tamariki about Ms Gee’s alleged behaviour. Oranga Tamariki ultimately found these complaints were unsubstantiated.

In accordance with the processes required under the HDCA, Ms Gee made a complaint to Netsafe, and then made an application to the District Court seeking orders against Ms Hooper. The District Court upheld Ms Gee’s application, ultimately ordering that Ms Hooper:

1. Take down or disable material relating to Ms Gee or Magnolia Kitchen;

2. Cease posting any online content regarding Ms Gee or Magnolia Kitchen; and

3. Was not to encourage anyone else to engage in such communication.

High Court judgment

On appeal, the High Court acknowledged that it is part and parcel of the right of freedom of expression for social media users to comment on the types of matters that Ms Hooper had addressed in her posts. It also observed that in today’s social media environment some “critique” or “debate” will be in what some might consider to be “vulgar and offensive terms”.

However, the Court found that publicly and repeatedly describing Ms Gee in terms such as a narcissist and psychopath and insinuating that she was an emotional, and potentially physical, abuser of her children was not debate or critique but personal attack. Therefore Ms Hooper had breached the communication principles under the HDCA, in particular:

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

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

The Court was also satisfied Ms Gee had suffered serious emotional distress as a result of the cumulative effects of Ms Hooper’s social media posts. This finding was based on the content and sustained nature of the posts themselves, and particularly the repeated allegations that Ms Gee was abusing her children. Interestingly, the Court held that medical evidence does not necessarily need to be provided to establish distress, and did not consider the medial evidence filed in the case to be particularly helpful.

As the HDCA had been engaged, the High Court held the District Court had been right to make orders under section 19 of the HDCA. However, the Court considered that the orders made by the District Court had been overly broad, recognising that any orders ought to be framed as narrowly as is appropriate, so as to be consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act. The Court found that orders should have been limited to posts about Ms Gee, and not have extended to her Magnolia Kitchen business. The Court ordered that Ms Hooper is not to post to any social media platforms about Ms Gee (or encourage any other person to do so). The Court also made the order time bound, to lapse in around a year on 1 August 2023.

What does this mean for you?

Despite data and privacy concerns, people continue to use social media platforms as a forum for debating and critiquing the actions of others. However, this decision shows the informal nature of social media does not give users carte blanche to post whatever they want. The judgment expressly recognised that some of the language used by Ms Gee was also inappropriate, but this did not mean that orders could not be made in her favour.

Although Ms Hooper’s posts were ostensibly directed at Ms Gee’s business profile (Magnolia Kitchen), the Court still found that Ms Gee had standing to bring an application under the HDCA because it would have been “artificial” to suggest that the posts did not critique Ms Gee personally rather than the Magnolia Kitchen business. For small business owners, this means that you will not necessarily be barred from bringing proceedings under the HDCA for social media posts directed at your business, if they are harmful to you personally.

The bespoke nature of the final orders reflects the court’s willingness to give weight to the right of freedom of expression, but also to protect individuals from harmful posts. Although the court’s order was ultimately very broad (Ms Hooper is prevented from posting anything about Ms Gee on any social media platform), the restraint was limited to a duration of one year. The court recognised that it could be difficult to determine when social media posts turned from critique and debate into harmful digital communications but was ready to provide protections against the public and repeated personal attack. Users should be careful when offering debate or critique of others on social media and ensure that the language they use does not veer into unnecessarily harmful material.

Special thanks to Elizabeth Keall for her assistance in writing this article.