A judge has overturned a gag order on a NZ-Chinese journalist. Photo / 123rf
A court decision has been labelled a “huge victory” for freedom of speech and sparked calls for a deeper review of the Harmful Digital Communications Act.
A District Court judge says he is “seriously concerned” about the way an Auckland-based, pro-Beijing political activist successfully sought a court order to gag a NZ-Chinese journalist.
The judge has overturned the gag order, which was imposed by another District Court judge during a hearing that was held “without notice”, meaning the journalist was unaware of the legal move and had no opportunity to outline her own position.
The decision is a “huge victory for free speech” but also raises concerns about how the Harmful Digital Communications Act (HDCA) is being weaponised to silence dissent, says the Free Speech Union.
Political activist Morgan Xiao is a self-described “political commentator”, “public figure” and “social activist” who comments on China issues and is a former Auckland local body politics candidate.
He took exception in 2024 to articles and online commentary by freelance journalist Portia Mao, whose work credits include the Herald on Sunday, Newsroom and Stuff. She last year helped work on Stuff’s The Long Game documentary, which delved into interference operations of the Chinese Communist Party in New Zealand.
Xiao, a member of the Labour Party in New Zealand, takes a pro-Beijing view on issues and has previously criticised the likes of China academic professor Anne-Marie Brady in some of his commentary.
In his application under the HDCA, Xiao wrote: “Portia (Peng) Mao constantly defames and bull[ies] me online, defame[s] 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 [a] dog’.
“She also has badmouthed me online and offline since 2019 ... As a public person, my dignity is badly hurt by Portia’s malicious words, which were widely published in [the] NZ Chinese community. I also suffered mental pressure every time she did so.”
Xiao sought orders from the District Court requiring Mao to remove the articles, stop what she was doing and not do it again, and issue an apology.
Representing himself legally, he made his application “without notice”, meaning Mao was not aware of the application and therefore did not have the opportunity to present her case to the court.
The court granted the order in July last year, including the requirement for Mao to publish an apology.
It was only when Xiao sought that the orders be sealed and Mao sought clarification on what had occurred that she was provided with a copy of the decision.
The District Court clarified on September 5 that it was an interim order and that Mao could file a notice to be heard or apply to change or remove the orders that had been made.
She sought to remove the order.
In a ruling this week, Judge Richard McIlraith said Xiao’s application “did not overtly address why it was made on a ‘without notice’ basis”.
“Read objectively, Mr Xiao’s application and affidavit in support conveyed a sense of urgency on his part,” said the judge.
“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. He had no record of that discussion.”
Mao’s lawyer Callum Fredric argued there were “no reasons” given by the judge for dealing with the application on a “without notice” basis, “rather than giving a direction that the application be heard on notice”.
“This subsequently 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)’. Mr Xiao also gloated online about the fact that Ms Mao did not know about the proceedings.”
Fredric submitted that Xiao’s application had been an “abuse of process itself”.
Xiao had complained to Netsafe, as required when seeking an order under the HDCA. In its own report, Netsafe said that Xiao had claimed he had contacted Mao directly to try to resolve the issue.
However, Mao was never personally contacted, the judge said.
“[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,” said Judge McIlraith.
“Mr Fredric framed this approach by Mr Xiao as an abuse of process. It certainly gives rise for real concern.
“I have not been able to conclude that Mr Xiao’s actions were in bad faith and an abuse of process, but it is fair to say I am seriously concerned at the way he has approached his application.
“I was not prepared to dismiss Mr Xiao’s application on the grounds that it was frivolous or vexatious, but I have to say his approach has left a lot to be desired. His application has been saved purely as a result of the fact that he was representing himself, as he was quite entitled to do, and he was also entitled to take the standard form at face value.
“On balance, I accept that while not often requiring an interpreter, English is not his first language, and his evidence that he assumed he would be contacted by the registry if further information was required was therefore not unreasonable.”
The judge then tackled the question of whether Mao’s articles and communications were actually in breach of the act and harmful.
He referred to one of the communications, a comment that Mao made on a social media platform in which she referred to Xiao as “only worthy of being a dog”. It was in response to an article by Xiao.
“I heard a great deal of evidence about the use of this expression in Chinese culture,” said Judge McIlraith.
He considered there was a consensus that it was a commonly used expression that referred to someone as being in a subsidiary position.
“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.”
The judge looked at other online material, including a translation of one passage, which Xiao stated read as: “He is really not a dog. A more accurate description is that it’s just the piece of s*** that dogs love to eat the most.”
However, the judge said, Mao did not accept that this translation was accurate.
The judge said that, irrespective of the exact meaning, this article could breach section 3 of the HDCA.
However, an assessment had to take into account Xiao’s circumstances, given his “highly active role in debate at the time” about the Stuff story, which Mao had helped with.
“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 my view, there was also no breach of other principles.”
In order for there to be a breach, harm was also required.
“There was simply no independent evidence of harm being caused to Mr Xiao in respect of any of the articles about which he has complained,” said Judge McIlraith.
“As such, the threshold required in s12 of the Act has not been met. No orders can be made. Ms Mao must succeed in her application to have the orders previously made discharged.”
Xiao told Newsroom he had no regrets about the case and was considering appealing.
Mao told the website: “I could hardly believe that something like this could happen in New Zealand, a democratic country governed by the rule of law.”
Free Speech Union chief executive Jonathan Ayling said the overturning of the order was a “major victory” for free speech.
“We’re thrilled that Portia Mao, represented by the Free Speech Union, has won her court case and is no longer gagged by New Zealand law after calling out the Chinese Communist Party’s overreach in New Zealand. This is excellent news for all Kiwis.
“The court also rightly warned against weaponising legal tools to silence criticism, especially in political debate. The HDCA, while created with good intentions, has been weaponised now in a number of cases to silence dissent.
“Portia’s victory is a huge step in pushing back on this flawed law. It was also essential for ensuring criticising foreign powers remains a legal right in New Zealand.”
He said the union was embarking on “extensive work to thoroughly review the HDCA, analysing all decisions ever made under it”.
The results of this work would be presented to the Minister of Justice later this year.
Editor-at-Large Shayne Currie is one of New Zealand’s most experienced senior journalists and media leaders. He has held executive and senior editorial roles at NZME including Managing Editor, NZ Herald Editor and Herald on Sunday Editor and has a small shareholding in NZME.
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