The Harmful Harmful Digital Communications Act?
By Steven | October 20, 2026
I’m a fan of the Harmful Digital Communications Act. We need a quick and accessible remedy when a video of a child being bullied is posted on social media, for example, and the rest of our media law doesn’t provide that.
But the HDCA is phrased quite broadly. It’s capable of covering a lot of speech. It has built-in safeguards, but they’re in the hands of the District Court, which is… busy. Civil liberties groups have warned that the law could be misused to shut down speech someone doesn’t like. So I’ve been keeping a close eye on the case law.
No rash of HDCA gag orders
The good news is that the predicted flood of oppressive civil gags has not eventuated. Almost all of the cases have been about the HDCA’s criminal offence – which essentially involves targeting an online post at someone intentionally causing them serious emotional distress. The civil regime, which allows a court to make take-down orders and require apologies – has not been used nearly as much, and I haven’t seen many cases where I’ve thought it was being used disproportionately.
Portia Mao’s case
But I’ve just come across the decision in Portia Mao’s case, and I may have to revise my views.
On 27 July 2024, out of the blue, Portia Mao, a journalist, noticed a screenshot of a District Court decision. It was about her. A judge had ordered her to remove some criticisms she’d made of an Auckland parking meter warden and sometime local body candidate Morgan Xiao. The judge also ordered her to apologise. Xiao was gloating about it.
Portia had not been told that Morgan Xiao had made this HDCA application. She had not been told about the hearing. She had not been told about the result.
What was going on? The answer involves a gob-smacking series of half-truths and missteps, many of them made by the court itself.
Mr Xiao brings an HDCA case
It seems Mr Xiao took exception to some things Portia had written about him, including that he had been fired by his boss (he said this was untrue), and was a “dog” and “worse than a dog”. He went to Netsafe, and then applied to the court for an order to have them taken down. In his court application, he said: “As a public person my dignity is badly hurt by Portia’s malicious words which were widely published in NZ Chinese community. I also suffered mental pressure every time she did so.” In his affidavit, he swore that “… Portia and I belong to different parties; she is a member of Act and I’m a member of Labour. We also have very different backgrounds and views on international matters. However, we are both New Zealanders and I believe we should strive to be civilised human beings.”
I pause here to observe two things:
- Portia is not a member of the Act Party, and the real context to this fracas was fallout from a Stuff Circuit documentary that Portia helped prepare about the influence of the Chinese Communist Party in NZ that Mr Xiao disagreed with.
- At roughly the same time as he brought this application, Mr Xiao was accusing Paul Chung Che Young repeatedly of lying, incompetence and corruption, and – irony alert – misusing court proceedings. These resulted in a $225,000 defamation award against him late last year.
Anyway, the judge granted Mr Xiao’s application against Portia Mao without hearing from her. It was an interim order, so Portia had the right to apply to have it reversed. But in the meantime, she had to take down her criticisms and – I guess – make an “interim” apology.
That interim order was eventually overturned, though it took about a year.
But let’s look at all the things that went wrong for things to reach that point.
Netsafe doesn’t help
First, Mr Xiao went to Netsafe, as you have to do before bringing court proceedings. Netsafe didn’t help things much. It didn’t contact Portia Mao. Mr Xiao told Netsafe he had contacted Portia Mao about it, but he hadn’t. Mr Xiao says Netsafe told him that if he tried to mediate with her it would probably make things worse because she’d probably write about it. It seems Netsafe just gave Mr Xiao the certificate he needed to show the court to prove that he’d tried the Netsafe route and it hadn’t worked. (I haven’t heart Netsafe’s side of this, and it seems to me that they’re generally in a difficult position trying to help resolve issues like this. But on the face of it, this seems pretty inadequate. It didn’t help that Netsafe’s report assessed Mr Xiao’s complaint as engaging standards relating to false allegations and harassment resulting in what Mr Xiao said was “huge emotional damage”. The report could be read to suggest Netsafe felt the HDCA had been breached.)
Mr Xiao is less than forthcoming
Second, Mr Xiao wasn’t entirely straightforward with the Court. The online instruction form said if it was “urgent, for example in cases of ongoing serious emotional distress” it could be heard without notice – that is, without telling Portia Mao about it. The HDCA says the court can do this in “appropriate” cases, with proper regard to natural justice. Mr Xiao opted to make it a without notice application. He was supposed to provide reasons for this, but didn’t. He provided little context to his complaint. He also provided an incorrect email address for Portia.
The judge who finally overturned the order, Judge McIlraith, said the application form wasn’t ideal. He didn’t conclude Mr Xiao had acted in bad faith exactly but he was “seriously concerned at the way he has approached this application”. Because it wasn’t really urgent.
The judge orders an ex parte hearing
Still, a judge is supposed to decide whether it’s urgent enough to proceed without notice – or else order that the application be served on the other party. That was a tricky job, said Judge McIlraith. Mr Xiao was self-represented and wasn’t telling the full story. Judge Gibson decided to hear it without notice. But he didn’t explain why.
The judge finds a breach
Third, Judge Gibson found that the Portia’s online comments were “grossly offensive” and contained false allegations. One was that Mr Xiao was dismissed from his job in 2019. Mr Xiao’s evidence didn’t say he wasn’t dismissed, just that he would like to cross-examine Portia Mao about that claim. That… doesn’t seem like enough.
That’s what Judge McIlraith found, though he had the benefit of a lot more evidence when he issued his decision overturning the first one.
The evidence the first judge didn’t hear
So here’s Portia’s story, the one that she didn’t get a chance to tell at first. She’s a journalist. Mr Xiao was a local political figure. A source told her he had been dismissed from a media company job and that he hadn’t lived in NZ for as long as he’d claimed on an election website. (She still contends that’s accurate, though the questions aren’t resolved in the McIlraith judgment). She approached him for an interview. He declined.
Why did she call him a “dog”? Long story short, it’s a common Chinese idiom suggesting he’s an apologist for the Chinese Communist Party. Think: “running dog”. She used it in relation to criticisms he’d made of her role in a Stuff Circuit documentary about the Chinese government’s influence in NZ called “The Long Game”.
There’s more, but the upshot is that nothing Portia Mao said was gratuitous or offensive or (provably) inaccurate. Nor did it amount to harassment. Judge McIlraith said that when the context was properly understood, there was simply no breach of the principles of the HDCA.
Nor was there any independent evidence of the sort of serious emotional distress the HDCA requires. “Mr Xiao had a history as a regular and robust commentator in the local Chinese community” Judge McIlraith wrote. “He regularly writes in very robust terms. A number of examples were traversed in evidence. He said in evidence he had learned to moderate his comments. His reaction in online posts to the Court’s judgment last year suggests otherwise. I therefore do not accept that Mr Xiao suffered harm as required.”
The HDCA factors tell against any order
I talked above about guardrails in the HDCA. There are plenty. The emotional harm has to be serious. The breaches of the principles in the HDCA must be serious or repeated. The court is specifically directed to consider the right to free speech in the Bill of Rights Act before making any orders (section 19). It also has to consider factors such as the context, the actions of the parties, the vulnerability of the victim, and any public interest in the content. Judge McIlwraith went through these factors and found they told strongly against any order. It was legitimate political discourse. Mr Xiao had a political role that the Court should have been told about. Mr Xiao himself had contributed to the spread of the very articles he was complaining about. He is not a vulnerable person. The term “dog” was not used in an offensive way, and in any event, Mr Xiao had used it too. Any order would be inconsistent with the Bill of Rights Act.
Two problems with the HDCA
Looking at the HDCA and its regulations, there may be a couple of problems with interim orders.
First, on one reading it looks like judges can make interim orders – including takedown – without hearing from the respondent, whether it’s an on-notice application or a without-notice one. Either way, the first thing a judge is supposed to do once an application is filed is consider (among other things) whether an interim order is required. I guess there may be some urgent circumstances where that’s appropriate. But I can’t see any language in the Act or regulations requiring urgency before an interim order is made without hearing from the respondent. That feels like a problem.
Second, on one reading, it looks like judges can make interim orders without first considering the factors under sections 18, 19(5) and (6). It’s possible to read those provisions (including the explicit requirement to act consistently with the Bill of Rights Act!) as saying they don’t apply to interim orders. That feels like another problem.
The Court fails to communicate the decision
After the first decision, containing the interim order, the Registrar is supposed to send to Portia the order, the application, the supporting affidavit, a record of the court’s directions, and a notice of Portia’s rights to challenge the order. It didn’t. (Perhaps the email bounced. But that should have been the first step not the last).
When Portia heard about the case from Mr Xiao’s online boasting, she asked the court for a copy. Even after that, it took the court months to provide it to her. (When the Free Speech Union publicised the case around then, I applied to the court for a copy. I never heard back).
Upshot
Look, this is a terrible indictment of the HDCA process. But I still think the Act’s substantive framework is sound, as we can see from Judge McIlwraith’s decision. The problem is that everybody dropped the ball during the first fixture. And part of that may well be a structural problem with the HDCA and regulations and the way that interim orders can be made without hearing from the respondent, even if the matter isn’t urgent and (perhaps) even without taking into account all the factors set out in the HDCA.
I haven’t seen evidence that this happens often. This case was something of a perfect storm. The main problem, as Judge McIlwraith said, is the danger of “without notice” applications. Without that particular misstep, I think this case would have gone very differently. And it was fixed up in the end, albeit far too late.
Still, I think Parliament should tighten up the language around “without notice” hearings, and the courts should revisit their systems. I hope that’s happened anyway.
PS
It looks like the Ani O’Brien case against Martyn Bradbury may have followed a similar trajectory. Certainly, the court issued an interim takedown order (albeit without an order for an apology). It’s not clear to me whether Martyn Bradbury was served originally – but Judge Davenport may have issued the interim order on the papers, and I doubt he’d filed anything by then. It’s hard to see he would have had any real chance to mount an argument. In any event, it’s clear that he was quickly told about the proceeding and the interim order and will have a hearing to contest it in early December. (He was given a chance in a hearing in August, but turned up without a lawyer, so the case didn’t proceed then).
It’s been reported that Judge Davenport found that, on O’Brien’s evidence there was a case that Martyn Bradbury breached the HDCA standards about harassment and indecency/obscenity; and also a case that Ani O’Brien had suffered the requisite emotional distress.
It would be interesting to know whether Judge Davenport thought she was required to address the statutory factors and the Bill of Rights Act in making that interim order. I haven’t seen the decision.
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