0
Contact Us
24/03/2025·4 mins to read
High Court bites down on harmful communications
The High Court’s recent judgment in Tucker v Pere [2024] NZHC 3209 puts a spot light on the remedies available under the Harmful Digital Communications Act (HDCA), extending protections to small business owners, and clarifying the responsibility of people who administer webpages over comments left on the pages.
Litigation Partner, Jania Baigent spoke to the NZ Herald’s Tech Insider about the implications of the decision for small business owners facing social media attacks. Read the article here (paywall).
Key takeaways
- Small business owners may rely on the HDCA for protection against harmful online content: The Court recognised that an attack on a small business will often be seen as an attack on the proprietor personally. In doing so the court opened the door to proprietors accessing HDCA remedies even if the harmful digital communications did not directly or explicitly refer to the affected individual.
- Owners of webpages may be held responsible for other people’s comments: Owners of websites and Facebook pages can be treated as “online content hosts” and held responsible for the comments of others when left on their pages, even if the original posts did not breach the communication principles.
- A fetter on freedom of expression: Where the harmful impacts of the digital communication are considered to be disproportionate, the Court will be prepared to limit freedom of expression rights. Proportionality is increasingly exaggerated by the uncontrolled dissemination of content on social media platforms.
Background to the decision
Mr Tucker made a series of posts on his Facebook page alleging that he had witnessed animal abuse while working at Hamilton doggy daycare and pet hotel Metro Paws. Ms Pere was the managing director of the companies that operated the daycare and hotel.
Mr Tucker’s post was shared over 200 times and received hundreds of comments, many of which were threatening towards Miss Pere and Metro Paws staff.
Mr Tucker went on to create a website and Facebook page called “Political Action for Animals Waikato” (PAAW) for the purpose of pushing the SPCA to prosecute Metro Paws. These contained further references to the ‘owner’ and to employees of the business, despite Mr Tucker making efforts to redact names.
Ms Pere claimed to have suffered serious harm as a result of Mr Tucker’s posts and the comments made on those posts.
Despite the posts being about a business and not an individual, the District Court made orders against Mr Tucker requiring him to take down the website and Facebook posts, to refrain from making similar posts and to not encourage other persons to engage in similar behaviour. Mr Tucker appealed the District Court’s decision.
High Court judgment
The High Court upheld the District Court’s decision, finding that while the case was “not clear cut”, there had been repeated breaches of the following communication principles:
- a digital communication should not be threatening, intimidating or menacing;
- a digital communication should not be grossly offensive to a reasonable person in the position of the affected individual; and
- 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.
The court found that Ms Pere’s evidence met the threshold of serious emotional distress, with Ms Pere being subjected to anonymous calls, threatening text messages and abusive comments causing anxiety, sleeplessness and a feeling of insecurity within her home.
What does this mean for you?
The decision provides guidance for both owners of websites and Facebook pages and small business owners who have found themselves the subject of potentially harmful communications online.
Owners of websites and Facebook pages
Under the HDCA, the court can make orders requiring an “online content host” to take steps or refrain from certain conduct.[1]
Here, while Mr Tucker’s own content was not threatening, menacing or intimidating in the manner contemplated by the HDCA, the comments of his followers were. The Court found that Mr Tucker was an “online content host” in respect of both his personal Facebook page and the PAAW page because he could control the information on those pages by deleting messages, blocking posts or disabling comments all together.
The High Court decision confirms that people who own and/or control websites will be responsible for comments posted by others. Those hosts need to take care that their content is not generating comments which would fall within the ambit of the HDCA, such as threatening, intimidating, or offensive comments. Even where content can be seen as an expression of free speech, the Courts may find that a limitation is reasonable and justified in light of the harm caused to the affected individual (as found in that case).
Small business owners
The decision provides welcome news for small business owners as it deals with the “live issue” of communications being directed at businesses, rather than individuals (as discussed in our previous FYI here). This was a continuation of earlier High Court decisions Tranter v Kemp[2] and Hooper v Gee[3], where multiple references to the ‘owner’ or the business would be perceived by others to be Ms Pere as an individual.
Although businesses and companies cannot suffer emotional distress, it is clear from the decision that the interests of the individual and the business can be so intertwined that an attack on a small business can be seen as an attack on the proprietor personally. Ms Pere was the face of the family-owned business and worked there full time, as such, she became the target of “emotional outrage and outpouring” that resulted from the posts.
Freedom of expression
The Court also engaged with the interaction between the right to freedom of expression and harmful digital communications, but readily found that limitations of the civil right can be justified where its impact becomes disproportionate to the goal of the communication.
The Court found that the evidence of harm (as a result of threats of abuse and violence) outweighed the interests of freedom of expression, despite the significant public interest, good intention, and attempts to minimise harm.
The decision shows that the Courts will be ready to put a fetter on freedom of expression in this jurisdiction, no matter how purportedly noble the cause is. The result reflects the purpose of the HDCA to deter and mitigate harm to individuals by digital communications, and to provide victims with an efficient means of redress.
However, while the Court found that such a fetter was justified in this case involving threats of abuse and violence, care will need to be taken if the HDCA is used to defend small businesses, rather than affected individuals. Cases involving business rather than personal interests begin to stray from the purpose of the HDCA and clear justification should be required before limits are imposed on freedom of expression rights.
Special thanks to Elizabeth Keall-Ross and Tawhiwhi Watson for their assistance in writing this article.[1] Section 4, HDCA: online content host, in relation to a digital communication, means the person who has control over the part of the electronic retrieval system, such as a website or an online application, on which the communication is posted and accessible by the user
[2] Tranter v Kemp [2020] NZHC 1257
[3] Hooper v Gee [2022] NZHC 1854
