Hooper v Gee - [2022] NZHC 1854

ORDER PROHIBITING PUBLICATION OF UNREDACTED VERSION OF THIS JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1651

[2022] NZHC 1854

IN THE MATTER of an appeal against Orders under the Harmful Digital Communications Act 2015

BETWEEN

PEBBLES L’ESTRANGE HOOPER

Appellant

AND

BERNADETTE MARIE GEE

Respondent

Hearing: 1 March 2022

Counsel:

RM Mansfield QC and AO Graham for the Appellant MC Staines for the Respondent

Judgment:

29 July 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 29 July 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: McVeagh Fleming, Auckland To: R Mansfield QC, Auckland
A Graham, Auckland

HOOPER v GEE [2022] NZHC 1854 [29 July 2022]

Introduction [1]

Factual background [6]
The evidence in the District Court [68]

District Court decision [69]
Application to admit further evidence on the appeal [84]

Approach on appeal [97]
The Act — legal principles [98]

Legislative background [98]
Interaction with the New Zealand Bill of Rights 1990 [104]

Relevant provisions of Act [110]

The parties’ submissions [123]

Ms Hooper’s submissions [123]

Ms Gee’s submissions [135]

Analysis [145]

Introduction  [145]
Does Ms Gee have standing?  [149]
The interaction between ss 12 and 19 of the Act  [153]

Communication principle 6 – knowledge required?  [156] Did Ms Hooper’s posts breach the communication principles?  [157] Was serious emotional distress established?  [162]
Should orders under s 19 of the Act have been made?  [165]
In what form should orders have been made?  [169]
Result and costs  [173]

Introduction

[1] The appellant, Ms Hooper, styles herself as a self-employed social commentator. Prior to the matters the subject of this appeal, she had never met or had any knowledge of the respondent, Ms Gee, or her business Magnolia Kitchen Ltd.1 However, in 2020 Ms Hooper became aware of certain posts Ms Gee had made to Magnolia Kitchen’s Instagram account, some of which featured Ms Gee’s children.

[2] Ms Hooper gave evidence that she “felt this woman had crossed the line from ‘light hearted family online cataloguing’ to a ‘dangerous, inappropriate and deeply concerning woman seeking to exploit her children for entertainment’.” Ms Hooper’s response to what she saw on the Magnolia Kitchen account is best summarised by her evidence that “I consider that I was not only entitled to take her on for what she posted, but that I should and so should others”.

[3] Ms Hooper’s opinion of Ms Gee’s online posting led to a series of posts and counter-posts by Ms Hooper and Ms Gee, as well as other social media users. It continued over a number of months, starting with online backlash at what users perceived to be the Magnolia Kitchen business generally continuing to operate during the Level 4 lockdown, before moving to what Ms Hooper (and others) saw as Ms Gee’s exploitation of her children in her online marketing of the Magnolia Kitchen brand, as well as emotional (and potentially physical) child abuse.2

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hooper v Gee

Details

AGLC: Hooper v Gee [2022] NZHC 1854
Case: [2022] NZHC 1854
Decision Date: 29 July 2022

CaseChat Overview and Summary

The appellant, Ms Hooper, a self-employed social commentator, brought an appeal against the District Court's final orders prohibiting her from posting any further material concerning the respondent, Ms Gee, Magnolia Kitchen, and its associated brand. The District Court had found Ms Hooper's posts to be in breach of multiple communication principles under the Harmful Digital Communications Act 2015 (the Act) and that Ms Gee had suffered serious emotional distress as a result of the posts. The High Court allowed the appeal in part, finding that the District Court had erred in some respects and that the orders should be narrowed and time-bound. The appeal was otherwise dismissed. The orders in the District Court were quashed and replaced with an order that Ms Hooper is not to post to any social media platform about Ms Gee, or encourage any other person to do so, for a period of one year from the date of the judgment. Costs of the appeal were to lie where they fall.

Orders