How a law to stop cyberbullying can be used as a tool to silence
Sunday, 19 October 2025
Free-speech advocates say the Harmful Digital Communications Act has been exploited, raising fears the law could be used as a tool of foreign interference and intimidation against journalists. Amelia Wade investigates.
No one could question Portia Mao’s tenacity; the Chinese-language journalist has been ferocious in her two-decade pursuit of reporting what few others do.
But it’s made her a target. She’s faced multiple lawsuits and spends much of her time working out how to fight them.
“I know we will win, but it takes too much of my time - I cannot concentrate,” she says.
“I’m still trying to write as much as possible but I have to spend so much time dealing with these things.”
Mao assisted Stuff with its 2024 documentary, The Long Game, about Chinese Communist Party interference operations in New Zealand. Soon after it was published, she felt the backlash.
Failed local politician and Beijing supporter Morgan Xiao claimed online that Mao was “anti-China” and sent messages about her on the Chinese social media platform WeChat. He also took issue with her stories about Chinese political influence in New Zealand.
Xiao, a former Auckland Transport parking warden, in July of 2024 successfully filed in the district court for interim takedown orders under the Harmful Digital Communications Act (HDCA) for two of her articles, which contained critiques of Xiao, his actions and his politics, claiming they caused him “serious emotional harm”.
It was filed “without notice” so Mao wasn’t told about the case until she heard about it from a friend. An interim order was granted, her articles had to be taken down and she had to apologise - however this was all ordered without her knowledge and without the opportunity to tell the judge her side.
It wasn’t until September that year that Mao was provided with a copy of the decision - a month later she filed a notice to change or remove the ruling.
In May the case was heard and then in June, almost a year after Xiao first filed, Judge Richard McIlraith overturned the takedown order.
He raised concerns about the process.
“The case has demonstrated the danger of ‘without notice’ applications being made under this Act and the regrettable delay in a defendant having the opportunity to be heard.”
Mao was not the only person Xiao has filed HDCA complaints against.
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The Post journalist Justin Wong wrote an investigation into the backlash Mao experienced, including comments made by Xiao. In the course of his work, he contacted Xiao.
Xiao then began the HDCA process against Wong.
His grounds, according to claims he made in his application to the court, was that Wong had been “encouraged by Portia Mao to make false allegations and harassment on me and further encouraging others to harm me [sic].”
After Wong’s article ran, Xiao made another application under the HDCA, claiming the story contained false allegations and was an attempt to harm him.
The court eventually also threw out the case against Wong with Judge Kate Davenport ruling the harm Xiao claimed to have suffered was not serious enough. He was also ordered to pay $4899 in costs.
“It would be a sad state of affairs if simply sending an email requesting answers to questions which Mr Xiao could choose not to respond to amounted to a harmful digital communication,” her decision said.
“It is an attempt to prevent genuine reporting of different views from those held by Mr Xiao. No party can use the Act to muzzle genuine comment and different views.”
A tool to gag
The dual cases have raised concerns about how the HDCA can be used as a tool to stifle journalism and silence political debate.
Former Lower Hutt mayor Campbell Barry has used the law to shut down a Facebook page - which he says exposed he and his family to harm online. While the Free Speech Union said the page amounted simply to public scrutiny Campbell Barry told the court he and his wife felt unsafe at home, and that posts contained “false allegations and threats”. The court, in response to Barry’s affidavits, agreed and ruled the page had breached principles of the HDCA and ordered that Meta shut down the page and that any identifying information about who was running it be revealed.
Media lawyer Robert Stewart KC represented Wong in his case, facilitated by Stuff as Wong’s employer.
“In Justin's case, it was effectively weaponised to prevent him, or try and prevent him from pursuing his legitimate and lawful business of being a reporter and reporting on the actions of people who have a bit of a public profile or who involve themselves in important debates, like Mr Xiao seemed to do.”
Stewart views the HDCA as an important piece of legislation and says the premise of it was absolutely right - and overwhelmingly it is used for just purposes.
“But what I've seen is that it is capable of being used for a purpose that I don't believe that it was ever intended to be used for, which is effectively reputation management and I've seen that in a number of cases.”
Stewart has represented people on both sides. A good use of the law, in his opinion, was a father whose son claimed on Facebook that he was a rapist.
The father successfully sought a takedown notice. Though it ultimately resulted in Meta, owner of the social media site, using a geo-block so the man’s New Zealand family couldn’t see the comments - but they can still be viewed by people he knows who live overseas.
On some occasions the courts has said it won’t proceed until the action was notified - but not always.
Stewart says a case of particular concern was a man who used the HDCA against Stuff in 2021 for articles written more than six years earlier about court proceedings he was involved in. Netsafe investigated and Stuff refused to take the articles down.
The man said the stories continuing to be available were causing him distress, anxiety, harm - both financial and mental. The applications were filed on an ‘ex parte’ basis, meaning Stuff had no ability to be heard.
Judge David Sharp went further and issued a final takedown notice, meaning the decision then had to be appealed at the High Court.
“The courts have sort of realised that that particular judgment doesn't really have any precedential value, thankfully,” says Stewart.
But the HDCA is increasingly becoming a lever lawyers are reaching for when someone approaches them with a complaint that something online is causing them harm. And Stewart says using the HDCA can be cheaper and quicker than bringing a full-blown defamation case.
A risk was the chilling effect the immediate access to justice has. Media have limited resources and Stewart said they are having to make decisions about what they put into legal challenges.
Managing director of Stuff Masthead Publishing (which publishes this newspaper and The Post), Joanna Norris, said that was a real risk, especially for small operations who were surviving week-by-week.
Stuff has in-house counsel, and engaged external lawyers when appropriate, in order to “hold the line”, she said.
“We feel very strongly that we shouldn't let these through to the keeper because they create precedents that then are relied on by other claimants. So it's important for us to continue to hold the line.”
Stuff receives complaints in the “double digits” each year under the HDCA which it fights. Most don’t make it to court.
“We are seeing internationally, and also here in New Zealand, a rise in people who are using legal action to create either nuisance or to slow media organisations down, or to generally kind of create a distraction,” says Norris.
“And that sort of legal action can be really damaging, because it prevents us from doing the work that we need to do to provide sufficient scrutiny to life in New Zealand.”
When the HDCA was being drafted in 2014, the Media Freedom Committee of editors from news organisations raised concerns the law could be misused and pushed for the legislation to exempt professional journalists. This didn’t happen.
Norris believes a carve out would stop media companies and journalists having to fight nuisance claims.
Government aware of concerns
Justice Minister Paul Goldsmith says he is aware of concerns and that freedom of the press was fundamental to democracy.
“We don’t have any immediate plans to make changes, as we have a very busy pipeline of Justice legislation, and limited time in the House.
“However, we will consider potential reform options when resourcing allows.”
The Free Speech Union funded Portia Mao’s lawyer. It is reviewing the HDCA and will make recommendations to the Government.
“It's been used very clearly for political reasons, to silence an investigation or criticism or simple reporting on a person who has run for local government on a couple of occasions,” says the union’s spokesperson Nick Hanne.
“If you could simply use a law like the HDCA to try and get your critics or journalists simply trying to do their job to get them silenced, then we've got a serious problem on our hands. And we've seen that with Portia.”
Under the civil provisions of the Act, anyone who believes they have been harmed by an online post must first contact Netsafe. The agency assesses complaints and may attempt “persuasion, mediation or negotiation”.
If the complainant still wants a court order, Netsafe provides a summary report that can accompany their application to the district court.
Hanne says this can make the complaint look like it has more weight.
“One of the crazy parts is that Netsafe is not actually required to go and talk to the person who's been accused of this behaviour. They largely just sort of take the word of the complainant.”
In both cases Xiao took, he used the Netsafe report to support his applications.
Netsafe has seen a 15-20% year-on-year rise in HDCA civil complaints since Covid and chief safety office Sean Lyons says that’s likely because of the increased use of technology and awareness of the law.
“The numbers that come to us are still massively swayed in favour of somebody that feels they have a legitimate complaint to make.”
There are 10 communication principles laid out in the law - for example that communication shouldn’t disclose sensitive details, be threatening, grossly offensive, or encourage suicide - that people can use to say that online communication has caused them serious emotional distress, the latter of which is a high bar.
“It's not like you can just claim serious emotional distress and say, ‘Right, that's it I can invoke HDCA’. It has to be targeted at you. It has to be something that would reasonably cause harm, it has to breach a principle, and you have to be able to say that you are experiencing that,” says Lyons.
When someone complains, they can tick a box as to whether they want Netsafe to contact the other individual. They then receive a summary of their next options, one of which is to pursue court action.
It’s then up to the court to decide whether the complaint is legitimate or vexatious or frivolous.
Lyons says he wasn’t sure what an improvement on the process would be because everyone should have the right to make a complaint and it’s not for Netsafe to decide whether someone’s serious emotional distress was legitimate - that was a job for the courts.
A tool for foreign interference?
The ease and speed with which someone can get a gag order has unnerved the Union - and it’s increasingly concerned the law could be used by foreign actors as a means to suppress and interfere in some cases.
Hanne has just set up a new inter-country body, Pillar, to raise awareness in South Pacific countries about foreign interference in liberal democracies.
“We're starting to realise that there is a much bigger problem here,” says Hanne.
“Repressive foreign governments that don't like bad press, even if it's done by someone who has no ostensible connection to that foreign government, we make ourselves very vulnerable.”
New Zealand needed to figure out a way to strike a balance between protecting civil liberties and recognising that we shouldn’t be naive about our vulnerabilities.
Retired district court judge David Harvey holds similar views. Writing on his substack, Harvey said: ,“Censoring criticism is a well-known ploy of totalitarian regimes – the Government of the People’s Republic of China is well versed in it and its myriad forms.
“It must be of concern, therefore, that legislation designed to address cyberbullying and material that causes serious emotional distress, and which allows in proven cases for the material to be removed, should be deployed.”