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Opinion
Home / The Listener / Opinion

Law & society: Severe distress must be proven for the law against harmful communications to kick in

David Harvey
Opinion by
David Harvey
Law & society columnist·New Zealand Listener·
15 Oct, 2025 05:00 PM3 mins to read
David Harvey is a retired district court judge

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The act requires proof of emotional harm and can no longer be used for reputational protection. Photo / Getty Images

The act requires proof of emotional harm and can no longer be used for reputational protection. Photo / Getty Images

The Harmful Digital Communications Act 2015 arose from a concern about cyberbullying by young people. It creates an offence of intentionally causing harm by posting a digital communication. It also provides a structure by which those claiming harm from the communication can have the item taken down, along with other remedies.

The act defines harm as “serious emotional distress”, which must be shown before the law’s remedies apply.

Since its enactment, the scope of the act has been extended. It now applies to intimate visual images and it is proposed this category will be extended to include “deep-fakes” created by artificial intelligence.

However, in two recent cases the provisions of the act have been used to try to stifle political discussion. In July 2024, Morgan Xiao used it to obtain without-notice interim orders from the Auckland District Court forcing freelance journalist Portia (Peng) Mao to delete articles, take down social-media posts and publish an apology about a former local-body candidate active in China-NZ political debates. Mao was not served before the orders were made.

Nearly a year later, Judge Richard McIlraith discharged the orders, stressing the dangers of without-notice applications and the absence of evidence of “serious emotional distress”. The judge found no independent evidence of harm being caused to Xiao in respect of any of the articles about which he complained.

But this is not the only case where Xiao has attempted to deploy the provisions of the act to silence comments. He sought orders against Stuff journalist Justin Wong for reposting a story and emailing questions for an article.

In July, Judge Kate Davenport dismissed the application, remarking it would be unlikely “if simply sending an email requesting answers to questions which Mr Xiao could choose not to respond to amounted to a harmful digital communication”.

In the Mao case, the court emphasised context. Mao was reporting on matters of public interest including election candidacy and a debate over the Stuff documentary The Long Game. And there was no independent evidence of harm meeting the statutory threshold.

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In a case in 2024, the High Court upheld orders under the act where posts about a small business triggered threats and pile-ons. It confirmed “online content hosts” can be responsible for comments they allow to remain and that justified limits may be placed on free expression when disproportional harm is shown.

Although not a political-speech case, it demonstrates the court’s proportionality analysis and its willingness to restrain speech in non-public-interest contexts. The same proportionality approach protects political comment when harm is not proven.

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Although the attempts to use the act were temporarily successful in the Mao case, the recent decisions show our courts are actively rebalancing towards free expression, demanding real proof of serious harm, restoring adversarial process and recognising the heightened protection for journalism and public-interest debate.

Courts look hard at public-interest context, journalistic function and the chilling effect of orders, and in future care will be needed to ensure journalistic function and political comment are not snared in the act’s application.

Furthermore, without the element of serious emotional distress, the act cannot be used for reputational protection.

The two cases emphasise that attempts to repackage defamation or discomfort into harm claims under the act have met resistance, particularly when they target core journalistic activity such as asking questions or reposting news.

That corrective trend undertaken by the courts narrows the space for using the act to stifle political comment while preserving remedies for truly harmful digital conduct.

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