Tucker v Pere
[2024] NZHC 3209
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-000168
[2024] NZHC 3209
BETWEEN SAMUEL TUCKER
Appellant
AND
NICOLA PERE
Respondent
Hearing: 14 March 2024 Appearances:
S M Kilian for the Appellant K I Bond for the Respondent
Judgment:
31 October 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 31 October 2024 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules 2016.
.…………………………..
Registrar/Deputy Registrar
Solicitors: Killian & Associates, Auckland
Braun Bond & Lomas Limited, Hamilton
TUCKER v PERE [2024] NZHC 3209 [31 October 2024]
Table of Contents
Page No
Introduction[1]
Factual background[6]
Mr Tucker’s posts/website[6]
SPCA investigation[19]
The civil regime under the Act [23]
Interim orders[35]
District Court decision [37]
The appeal[44]
Is Ms Pere an affected individual within s 11(1)(a) of the Act? [45]
The communication principles[53]
Principle 2[55]
Principle 3[64]
Principle 5[66]
Principle 6[68]
Principle 7[74]
Principle 8[76]
Serious or repeated breach [85]
Did Ms Pere suffer the requisite degree of harm?[88]
Does an order unreasonably curtail Mr Tucker’s right to freedom of expression?[96]
Result[106]
Costs[107]
Introduction
[1] Mr Tucker appeals against the decision of Judge A S Menzies who made orders under s 19 of the Harmful Digital Communications Act 2015 (the Act).1
[2] The appeal centres around Facebook posts made and hosted by Mr Tucker following an incident in which he alleges he witnessed animal abuse by two staff at Metro Paws Doggy Daycare and Pet Hotel in Te Rapa, Hamilton on 16 January 2021. The respondent, Ms Pere, is the managing director of the two companies that operate the daycare and hotel.
[3]Mr Tucker was ordered to:
1.1.1To take down and disable:
1.1.1.1His Facebook posts made on 12 and 14 February 2021 and on 22 and 27 March 2021 regarding the plaintiff and her businesses, Metro Paws Doggy Day Care Hamilton Limited and Metro Paws and Claws Pet Hotel Limited (together Metro Paws), and their employees;
1.1.1.2the page on his website at regarding the plaintiff, Metro Paws and their employees;
1.1.2To refrain from making further, similar posts on any website or social media platform regarding the plaintiff, Metro Paws, or their employees (including any posts relating to these proceedings);
1.1.3Not to encourage other persons to engage in similar communications directed at the plaintiff, Metro Paws or their employees.
[4] The orders under appeal were made on 10 June 2021. They relate to events prior to 30 March 2021. For reasons that are not relevant, the appeal was not heard until March 2024. Mr Kilian for Mr Tucker is instructed that Mr Tucker does not intend to now put his posts back up even if his appeal is successful. Mr Tucker says the appeal is a point of principle for him. He also contends that the orders made were too wide.
1 Pere v Tucker [2021] NZDC 11084.
[5] Mr Tucker’s appeal proceeds by way of rehearing.2 Mr Tucker bears the onus of satisfying the appeal court that it should differ from the decision of the lower court.3 The appeal court must arrive at its own assessment on the merits of the case but it is only if the court considers that the decision of the lower court is wrong that it is justified in interfering with it.4
Factual background
Mr Tucker’s posts/website
[6] On 12 February 2021 Mr Tucker made a post on his personal Facebook page titled “IMPORTANT INFO FOR DOG OWNERS IN HAMILTON”. It declared:
Staff at Metro Paws & Claws Luxury Pet Hotel Hamilton hit their clients dogs and I personally witnessed this happen twice …
I didn’t want to have to go public with this, but after discussing the issue with both the manager and owner, I still haven’t received any assurance that the problem has been dealt with, and if anyone ever hit my dog, I’d want to know about it so I could take my business somewhere else…
He attached an email sent to “the owner” as well as “her” response. These redacted Ms Pere’s name.
[7] The 12 February post was shared over 200 times by Mr Tucker and others on Facebook and attracted hundreds of comments and replies.
[8] Mr Tucker added to the post by four subsequent “EDITS”. The first thanked people for sharing their stories and said because of this the SPCA had opened an investigation into Metro Paws. He provided the SPCA phone number and case number (and stressed that people should only go to the SPCA with evidence of abuse not messages of support for Metro Paws).
[9] The “SECOND EDIT” advised that media outlets were interested in running a story and were looking for stories and photos of dogs who had been injured at Metro Paws. He asked that people send these through to him through messenger to
2 High Court Rules 2016, r 20.18.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 At [4]–[5].
pass on. In the “THIRD EDIT” he announced that since the SPCA would not prosecute, someone had offered to help launch a private prosecution and asked for those willing to give a statement or who had veterinary records to message him to pass along.
[10] In the “FOURTH EDIT” he announced that he had, and would, delete comments mentioning staff members; and that advocated violence or encouraged illegal behaviour in any way. He went on to say this would make it harder to get justice for the dogs if the matter went to court.
[11] Meanwhile, on 14 February 2021 Mr Tucker made a further Facebook post entitled “DID METRO PAWS HURT YOUR DOG?” stating that the SPCA had opened an investigation. It stated that “[a]ny evidence we can get for the case would really help” and set out (in substance) the first and second “EDITS” referred to above. This post was also shared widely.
[12] On 5 March 2021 Mr Tucker created a Facebook page called “Political Action for Animals Waikato” (PAAW) together with a website. On 22 March 2021 Mr Tucker posted a link on the PAAW Facebook page to a petition on the website calling for people to tell the SPCA to prosecute Metro Paws. The Facebook page was accompanied by an image showing a dog with both front legs bandaged. Superimposed on this was a Metro Paws logo and two banners stating, respectively, “13+ STAFF REPORTED ANIMAL ABUSE AT METRO PAWS DOGGY DAYCARE” and “NO ONE WAS PROSECUTED”. This was also shared widely.
[13] On his website, Mr Tucker provided screenshots of messages from ex-staff and ex-clients he had received with accusations of animal abuse at Metro Paws. This included images of injured dogs, and x-rays of injured dogs. The messages alleged the use of shock collars, and a range of other abuse. There were also statements that a staff member had just watched on as a dog died. There were various references to Ms Pere and other staff by name, which Mr Tucker redacted from the posts. Mr Tucker redacted the names of the senders of the messages.
[14] On 27 March 2021, Mr Tucker posted photographs of a mobile phone message chat (not screenshots of the chat) with the heading “THIS IS WHAT METRO PAWS STAFF ADMIT TO BEHIND THEIR CUSTOMERS BACKS”. These were described as messages from a Metro Paws employee group chat showing employees, management and ownership said to be admitting to using shock collars and steel toe boots on customers’ dogs. The post referred readers to the reports and messages posted on the website I described above.
[15] The post also urged readers to “share this post to spread the word about how Metro Paws treats their customer’s dogs and sign the petition asking SPCA to take Metro Paws to court for animal cruelty.” The 27 March post included two “EDITS” (the third and fourth above), referring to a private prosecution and advising that comments would be deleted if they mentioned names, advocated violence or encouraged illegal behaviour. The 27 March post was shared nearly 600 times and generated several hundred comments. Mr Tucker also added the staff chat images to his website.
[16] Ms Pere deposed that the staff chat images Mr Tucker posted on 27 March were of a Facebook messenger chat from at least three years prior. She said that the worst aspects of the staff chat primarily involved an employee who had left partly because of the inappropriate jokes and comments about animals and customers exhibited by the posts. She emphasised that the behaviour did not extend to animal abuse, but rather unacceptable attitude, which Ms Pere said she raised not long after the texts in question, and the employee left soon after.
[17] More generally, Ms Pere strongly rejects the allegations made in the posts. In respect to the specific staff chat posts, she acknowledges the texts showed dogs on leashes, and explains this was necessary from time to time as behaviour management, not abuse. She also said reference to “shock collars” and images depicting collars were bark collars, required for noise limits imposed on the business, and which had not been used for some time at the business.
[18] As a result of the first two posts on 12 and 14 February 2021, Ms Pere received a small number of messages and comments from third parties which were abusive and
threatening. Following the posts on 22 and 27 March 2021, the frequency of the threatening and abusive messages and posts increased significantly. There were abusive texts and phone calls. Ms Pere says she had to disable the Metro Paws Facebook page and temporarily take down Instagram to stop the abusive comments there. The posts themselves generated hundreds of comments.
SPCA investigation
[19] The wider context to these posts is that Mr Tucker had called the SPCA on 2 February 2021 to record the incident he said he had witnessed. When he heard nothing after ten days he decided to post on his personal account on 12 February 2021. He followed up with the SPCA the next day who said it had in fact opened an investigation and gave Mr Tucker a case number. Mr Tucker then created his second post and added information to the first advising viewers of the SPCA case number.
[20] The SPCA interviewed Ms Pere. On 17 March 2021 the SPCA advised Ms Pere and Mr Tucker that it would be closing its investigation. Mr Tucker said he formed the view that the investigation had not been pursued due to a lack of public interest, not a lack of evidence. This led him to set up his PAAW Facebook page and make his third post on 22 March and petition to generate public interest.
[21] The SPCA had a meeting with Ms Pere and certain staff on 12 May 2021. On 20 May 2021, the SPCA wrote to Ms Pere summarising its investigations and outcome. The letter referred to the official complaint from Mr Tucker and to a number of additional notifications from ex-staff and ex-customers. It advised that a number of these were ultimately anecdotal in nature, and that in lieu of any further formal notifications, it was closing its current investigation with no formal action. Nonetheless, it referred to the volume of notifications received as concerning, and outlined advice on best practice and policies.
[22] Mr Tucker says that the SPCA effectively re-opened its investigation after its first advice on 17 March following receipt of further allegations, hence justifying his campaign. Ms Pere now says there was only one investigation and not a “re-opening”. It is evident Mr Tucker passed on the information he was sent from ex-staff and clients to the SPCA and also encouraged those who sent him messages to complain to the
SPCA. Accordingly, it seems likely that the SPCA in fact considered all the reports Mr Tucker himself received.
The civil regime under the Act
[23] The appeal concerns civil orders made against Mr Tucker under the Act. I now outline the relevant scheme. The purpose of the Act is to:5
(a)deter, prevent, and mitigate harm caused to individuals by digital communications; and
(b)provide victims of harmful digital communications with a quick and efficient means of redress.
[24] “Harm” is defined by s 4 as “serious emotional distress”. In Police v B Downs J made five observations about the definition and assessment of harm.6 First, the definition is exhaustive, concerned only with emotional harm, and in particular, serious emotional distress.7 Second, while not equating harm with mental injury nor requiring the establishment of an identifiable psychological condition, the Act eschews minor emotional distress.8 Third, the determination of whether harm has occurred is part fact, part value judgement.9 Fourth, consideration should be given to obvious factors such as the nature of the emotional distress; its intensity, duration, manifestation and context including whether a reasonable person in the complainant’s position would have suffered serious emotional distress.10 Last, interpretation or application of the phrase “serious emotional distress” is not much helped by trying to elaborate on or restate the statutory language, or by reference to a dictionary.11 I adopt these views.
[25] Sections 11 and 12 create threshold requirements for an order under s 19 of the Act. Relevantly for this case:
5 Harmful Digital Communications Act 2015, s 3.
6 Police v B [2017] NZHC 526, [2017] 3 NZLR 203.
7 At [21].
8 At [22].
9 At [23].
10 At [24].
11 At [25].
(a)the applicant must be an individual who alleges that they have suffered or will suffer harm as a result of a digital communication;12
(b)the Court must be satisfied that there has been a threatened serious breach, serious breach or a repeated breach of one or more of the Act’s “communication principles”;13 and
(c)the applicant must show that the breach has caused or is likely to cause harm to them.14
[26]The relevant “communication principles” in s 6 are as follows:
Principle 2
A digital communication should not be threatening, intimidating, or menacing.
Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.
Principle 5
A digital communication should not be used to harass an individual.
Principle 6
A digital communication should not make a false allegation.
Principle 7
A digital communication should not contain a matter that is published in breach of confidence.
Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.
[27] Where the threshold requirements are established, s 19 of the Act permits the District Court to make orders that a defendant:
12 Section 11(1)(a).
13 Section 12(2)(a).
14 Section 12(2)(b).
(a)Take down or disable material.
(b)Cease or refrain from the conduct concerned.
(c)Not encourage any other persons to engage in similar communications towards the affected individual.
(d)Publish a correction.
(e)Publish an apology.
[28] Orders can also be made requiring an “online content host” to take steps or refrain from certain conduct.15 Section 4 defines “online content host” as a person who has control over the electronic retrieval system, such as a website or online application, on which the communication is posted and accessible.
[29] When determining whether to make an order, the Court must take into account the following factors as set out in s 19(5):
(a)the content of the communication and the level of harm caused or likely to be caused by it:
(b)the purpose of the communicator, in particular whether the communication was intended to cause harm:
(c)the occasion, context, and subject matter of the communication:
(d)the extent to which the communication has spread beyond the original parties to the communication:
(e)the age and vulnerability of the affected individual:
(f)the truth or falsity of the statement:
(g)whether the communication is in the public interest:
(h)the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:
(i)the conduct of the affected individual or complainant:
(j)the technical and operational practicalities, and the costs, of an order:
15 Section 19(2).
(k)the appropriate individual or other person who should be subject to the order.
[30] Section 19(6) also provides that in making any order, “the court must act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”.
[31] Orders may be made on a permanent, or interim basis. While orders under the Act may be seen as limiting the right to freedom of expression contained within the New Zealand Bill of Rights Act, such limitation is reasonable provided an order is properly made in accordance with the Act.16 It is primarily through the factors in s 19(5) that the legislature directs an assessment of whether and in what form restriction of freedom of expression is justified.
[32] In line with the statutory purpose of the legislation, the civil regime is directed at deterring, preventing and mitigating harm (as defined). In assessing whether the statutory threshold is met:
(a)A digital communication may cause the requisite harm however laudable the intention of the person making a digital communication. It is the effect of the communication not the intention of the maker that is relevant.
(b)An allegation made may be true, but still cause the requisite harm.
(c)A digital communication might cause the requisite harm because of the response it evokes in others.
[33] Similarly, a digital communication may breach one or more of the communication principles irrespective of issues of truth, and motive.
[34] It is in deciding whether and in what form orders should be made that the more nuanced balancing test occurs involving consideration of context, truth or falsity, public interest and motive.
16 Hooper v Gee [2022] NZHC 1854 at [105]–[106].
Interim orders
[35] On 30 March 2021, Ms Pere applied without notice for interim orders under the Act. She claimed that the posts, in particular the post of 27 March 2021, led to direct and threatening messages that caused her to become fearful for her and her employees’ safety. She said she suffered severe levels of stress, loss of sleep and panic attacks.
[36] On 1 April 2021, Judge S M Harrop granted the interim orders (as set out at [1] above).17 Mr Tucker’s ensuing application to discharge them was heard alongside Ms Pere’s application for final orders. These came before Judge Menzies, which resulted in the decision under appeal.
District Court decision
[37] The Judge correctly approached the issue de novo.18 Ms Pere was required to establish a case for orders afresh.19
[38] The Judge noted that standing was a live issue because the communications were directed at Ms Pere’s businesses, rather than her personally.20 However the Judge considered that because there were multiple references to the owner and employees, this case was analogous to Tranter v Kemp where the allegations would inevitably be perceived as such against the individuals.21 Although Mr Tucker had not used Ms Pere’s name, Ms Pere was clearly identifiable. The Judge was satisfied that Ms Pere was an individual with standing to bring the proceeding.22
[39] The Judge then assessed the s 12(2)(a) requirements. He determined that there were several repeated breaches of the communication principles, specifically principles 2, 3, 5, 6 and 8.23
17 Pere v Tucker [2021] NZDC 6035.
18 Pere v Tucker, above n 1, at [5].
19 At [5].
20 At [21].
21 Tranter v Kemp [2020] NZHC 1257 at [21].
22 Pere v Tucker, above n 1, at [23].
23 At [25]–[31].
[40]As to harm suffered by Ms Pere, the Judge concluded:
[39] The affidavit evidence records comparatively intense emotions on the part of the plaintiff. They include consuming anxiety, loss of sleep, panic attacks of sufficient intensity that the plaintiff struggled to breathe. The emotions included fear for herself and her employees and it is clear that the concerns would have occupied a duration of some five or six weeks.
[41] He was satisfied that the evidence described satisfied the threshold in s 12(2)(b) of serious emotional distress.24
[42] Having satisfied himself that the threshold tests were met, the Judge turned to whether orders should be made and in what form, applying the s 19(5) factors. He expressly noted that Mr Tucker’s said motive was to “address animal cruelty”25 but while Mr Tucker may not have intended to cause harm, it must have been reasonably foreseeable that harm would occur.26 He also noted that Mr Tucker had no way of knowing whether the online allegations were true yet was responsible for their ongoing dissemination in a manner that was reckless as to the truth or falsity of the statements.27 Although the Judge accepted that there is “little doubt that the welfare of animals and any abuse of animals is a matter within the public interest” this is a different matter to getting the public interested, which was the motive behind Mr Tucker’s online petition.28
[43] Last, the Judge noted that Mr Tucker’s right to freedom of expression under the New Zealand Bill of Rights Act is not absolute and the orders sought were not inconsistent with that right.29 The Judge ordered that the interim orders be made final.30
The appeal
[44]Mr Tucker raises four grounds of appeal. He submits:
24 At [40].
25 At [46].
26 At [51].
27 At [52].
28 At [53].
29 At [55].
30 At [58].
(a)Ms Pere is not an affected individual in terms of s 11(1)(a) of the Act so did not have standing to bring an application.
(b)The relevant communication principles under s 6 of the Act are not engaged or are not sufficiently engaged.
(c)There has not been the requisite harm to Ms Pere.
(d)The Judge gave insufficient weight to Mr Tucker’s New Zealand Bill of Rights Act rights.
Is Ms Pere an affected individual within s 11(1)(a) of the Act?
[45] Mr Tucker submits that because his actions were targeted towards companies, rather than an individual, Ms Pere did not have standing to bring an application under ss 18 or 19.
[46] He says Ms Pere was not mentioned or identified as a party that committed any of the abuse. Mr Tucker submits that Tranter is distinguishable because in that case the defendant clearly identified the plaintiffs by name with photographs and the defendant in that case acted with malice. He submits that Ms Pere is not an affected person and to hold otherwise would be to “make every person offended by a post an affected person and defeat the aim of the legislation”.
[47] These submissions are not persuasive. There is no requirement that the harmful digital communication directly or explicitly refer to the affected individual. In the context of an individual behind a corporate entity or business, whether the digital communication names or identifies the individual will obviously be relevant. But the issue turns on an alleged link to suffering harm as a result of the digital communication. That is not informed by an overlay as to whether a person was “targeted” or identified as such.
[48] The basis for limiting standing to individuals is that a body corporate is an artificial construct and cannot itself suffer emotional distress. However, as the Law Commission observed “an attack on a small business will often be read as an
attack on the proprietor personally, in which case he or she will have standing to complain.”31
[49] Here, Ms Pere is the face of the business. It is a family business owned by the interests of Ms Pere and her husband. Ms Pere works in it full time. There is reference in Mr Tucker’s posts to the “owner” as responsible. They also refer variously to “she”, “her” and the “boss”. The screenshots of messages Mr Tucker placed on his webpage had Ms Pere’s name redacted. However, they also referred variously to the “owner of the place”; to the author needing to remain anonymous because “of the shit she gave me when I left”; that “she turned a blind eye”; and to being traumatized due to “her manipulative threats”. Another said “the boss once told me to turn up the shock collar.”
[50] Hooper v Gee concerned social media posts by Ms Hooper responding to posts on the Instagram account of Ms Gee’s business “Magnolia Kitchen,” on which Ms Gee was a prolific poster.32 Ms Hooper’s posts were replete with references to attributes of Ms Gee personally. The posts in the present case are not as explicitly directed towards Ms Pere. But just as Fitzgerald J concluded in Hooper, it would be artificial to suggest that the posts did not concern Ms Pere personally. The accusations made were of animal abuse alleged to be engaged in or condoned by the business. As in Tranter “the reader would inevitably see these as an allegation against the individuals”.33 Although in that case the individual’s name was widely used, this observation is applicable to the current facts.
[51] Ms Pere was (and became) the natural target for the “emotional outrage and outpouring” the appellant acknowledges occurred. There was a solid foundation for asserting causal connection between the posts and the serious emotional harm Ms Pere alleged had resulted.
[52]The Judge was not in error to conclude that Ms Pere had standing.
31 Law Commission Harmful Digital Communications: The adequacy of the current sanctions and remedies (NZLC MB3, August 2012) [Ministerial briefing paper] at [5.54].
32 Hooper v Gee, above n 16.
33 Tranter v Kemp, above n 21, at [21], per Simon France J.
The communication principles
[53] I turn to the second aspect of the threshold which requires a serious or repetitive breach of one or more of the communication principles. The Judge relied on principles 2, 3, 5, 6 and 8. Mr Tucker submits that the Judge incorrectly applied those principles.
[54] I consider the digital communications together.34 The 12 and 14 February posts were less emotive than the later posts. However, once the 22 and 27 March posts and associated website were made, it would then be artificial to view the earlier posts in isolation from the later.
Principle 2
A digital communication should not be threatening, intimidating or menacing.
[55] The Judge held that there was a breach of this principle because the posts actively sought that the business be criminally prosecuted, proposed a private criminal prosecution and encouraged readers to respond with their own allegations or provide them anonymously to Mr Tucker. The Judge also held that Mr Tucker was responsible for the reaction he anticipated would follow from others’ posts and not just the posts he personally published.35
[56] As to Mr Tucker’s own content, some of the material he posted was graphic and overly emotive (and hence may be offensive or in breach of other principles, as discussed below). However, I accept Mr Tucker’s submission that his own posts and website were not threatening, menacing or intimidating in the manner contemplated by the Act or at least not so seriously as to engage the s 12(2)(a) threshold.
[57] However, Mr Tucker’s Facebook page elicited a storm of comment, which included posts calling for people to visit Metro Paws premises to “enforce” against them, making of threats of harm and abuse, and threats to ruin the Metro Paws business. Mr Tucker accepts the content of his posts evoked emotional outrage, hence why he added a note that he would be deleting and edit comments that named staff, or which threatened violence or encouraged illegal behaviour. Yet, as Ms Pere responds,
34 This was also the approach taken in Hooper v Gee, above n 16.
35 Pere v Tucker, above n 1, at [25].
his efforts did not prevent the abusive posts being made and/or prevent a large number of people (including Ms Pere) from reading them during the period they were live.
[58] How do others’ posts on Mr Tucker’s Facebook pages fit within the regime? Whether the two threshold tests in s 12 are met applies to all digital communications: that is, the posts made by Mr Tucker and posts made by others on his Facebook pages. In my view, Mr Tucker is an “online content host” in respect of digital communications posted on his personal Facebook page and the PAAW page he set up. He has control over the posts in that he can delete messages posted, block certain posts or disable comments altogether.36
[59] The Act provides for a process that would give Mr Tucker, as an online content host, “safe harbour” for criminal or civil liability for others’ comments posted on his page. 37 The “safe harbour” provisions were not engaged here because they run off receipt of notice of complaint. Ms Pere chose not to notify a complaint to Mr Tucker and asked Netsafe to hold off doing so in the context of the complaint she made to it, because she thought this would add “fuel to the fire”. Instead, Ms Pere applied for interim without notice orders.38
[60] The Act itself creates civil “liability” only in the sense of a defendant being required to comply with orders that seek to prevent harm from posts made or hosted that breach the communication principles. The civil regime is not punitive or compensatory. The primary utility of the “safe harbour” is more directed at other liability, such as in defamation, and for offences under the Act or under other legislation.39
36 In Murray v Wishart [2014] NZCA 461, [2014] 3 NZLR 722 at [145]–[146], the Court of Appeal appears to have implicitly acknowledged that a host of a Facebook page is also an online content host within the legislation. See also David Harvey internet.law.nz: selected legal issues for the digital paradigm (5th ed, LexisNexis, Wellington, 2022) at [6.3.3(b)(iv)]. Facebook is also an online content host for both Mr Tucker’s content and those that post on his page.
37 Sections 24(1) and 25(1) respectively. Where that procedure is engaged, the protocol involves steps being taken by the host to contact the author of the post and for the author to then respond. The regime also contemplates that an online content host may well exercise rights outside of this regime, by taking down posts.
38 The safe harbour procedure does not affect the right of an individual to injunctive relief in relation to the content of a digital communication posted by another person and hosted by the host. The effect of requiring removal of Mr Tucker’s posts was to remove the ability for others to post on his pages on this topic.
39 Such as for an offence under the Act or other legislation, civil defamation, or breach of privacy liability.
[61] Returning to the decision under appeal, the Judge referred to Mr Tucker being “responsible” for others’ posts. He was “responsible” for the purposes of the civil regime under the Act only in the sense just described. As an online content host, he was a party against whom orders could be made mitigating or preventing harm from other’s posts.40
[62] Posts made on Mr Tucker’s Facebook pages were plainly menacing, intimidating and threatening in breach of principle 2. The fact that Mr Tucker had been trying to take down that content he saw as crossing a line, had tried to prevent it and had not been notified of a complaint by Ms Pere was relevant (only) to whether any orders should be made and in what form. Even if a post had been removed, in some circumstances, there may be utility in an order giving an affected individual a right of reply or requiring a correction to be posted.
[63] Albeit for different reasons than he gave, the Judge was correct to conclude that there was a breach of principle 2 given the repeated posts of a threatening, menacing and intimidating character, and the likelihood of more of these being made.
Principle 3
A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.
[64] Mr Tucker accepts that actual or alleged animal abuse could be grossly offensive but says the offence is due to the content of the materials. He says the offensive content was not about any specific person. He submits that any comments that were directed to an individual person were deleted or edited.
[65] I agree with the Judge that the online material Mr Tucker posted or that was posted by others was grossly offensive to Ms Pere, as the owner and face of a business providing care for family pets, as it accused her and the employees under her control of actively engaging in and condoning serious animal abuse.41 To the extent that Mr Tucker’s submissions were to the effect that the material could not be grossly offensive if it was “true”, that is not correct under the statute. Because Mr Tucker
40 Section 19(2).
41 Pere v Tucker, above n 1, at [26].
received the messages from strangers (albeit not anonymously), the truth or falsity of the anecdotes could not be properly tested by him in any event.
Principle 5
A digital communication should not be used to harass an individual.
[66] The Judge concluded that the communications inviting the public to undertake various steps including the signing of a petition to compel the SPCA to prosecute was a form of harassment.42 Mr Tucker disputes that seeking a petition to be signed can be harassment. He submits that as with all the principles, determination of this principle must be considered in the context of his objectives; and the posts and comments as a whole.
[67] “Harass” is not defined in the Act43 but in my view it contemplates a level of persistence either by repetitive conduct or a single prolonged incident.44 I agree that whether the communication/s amount to harassment needs to be considered in context. I think it is likely that digital communications pressing for a petition and with wide dissemination could qualify as harassment. However, it is unwieldy to describe Mr Tucker’s communications as being used to harass Ms Pere. Rather, if anything, they were being used to harass the SPCA. Accordingly, I am doubtful that this communication principle was breached but need express no concluded view given my other findings.
Principle 6
A digital communication should not make a false allegation.
[68] Mr Tucker submits there is no substantial evidence identifying any false allegations and that therefore this principle should not be applied.
42 At [27].
43 That must be deliberate given that the definition of “harassment” in s 3 of the Harassment Act 1997 was amended at the same time.
44 See Ministerial briefing paper, above n 31, at [4.110]–[4.113] and [5.66(5)].
[69] This appeal point is misconceived because the Judge said that he could not conclude there were false allegations.45 As to Mr Tucker’s initial posting of the abuse he says he witnessed, the Judge said he could not resolve the factual conflict with the evidence of other staff. As to the other allegations, because they were supported only by private messages between Mr Tucker and others, their truth or falsity could not be assessed.
[70] The potential exception the Judge identified was that Mr Tucker acknowledged putting together and posting a mock-up photo of a Metro Paws logo and a dog with bandaged legs. He was equivocal in stating that “perhaps” this was in breach of the principle, because if not false, it was at best disingenuous.46 The most that Mr Tucker can say is that the photo is of “alleged” abuse because this came to him from a stranger. The District Court could not assess how the dog came to be injured or indeed whether the photo is genuine. Nor can I. I infer that the SPCA regarded the allegation as too anecdotal.
[71] Mr Bond emphasises that the only “admissible” evidence of abuse is of the incidents Mr Tucker says he personally witnessed. He submits that it is for Mr Tucker to show the allegations (including this one) are not false, rather than the other way around, as Mr Tucker puts it. The Law Commission suggested that the onus of establishing truth should be on the person making a digital communication, consistent with the law of defamation. It did not include a draft provision addressing this, nor was one enacted.47
[72] Because a person who makes an allegation should have the facts at hand, there is merit in the view that where, as here, the parties to an application are the person posting material and the affected individual, the defendant should provide sufficient foundation for the Court to determine that the allegation is true, if the affected individual asserts that there has been a breach of principle 6.
45 I am in the same position as the Judge. Similarly, the SPCA’s conclusion on the substance of the allegations was that because a number of the allegations were ultimately anecdotal in nature, it would be closing its investigation.
46 Pere v Tucker, above n 1, at [28].
47 Ministerial briefing paper, above n 31, at [5.66].
[73] However, s 16 contemplates a flexible approach to applications under the Act depending on the circumstances of the case, such as by proceeding simply on the basis of written submissions alone. The Court may receive evidence or information that would be otherwise inadmissible in a court of law.48 The potential informality suggests that an overly analytical, one size fits all, or forensic approach is not intended. Given my conclusions on other principles and my view that the Judge placed little emphasis on this one, I do not need to finally address this issue.49
Principle 7
A digital communication should not contain a matter that is published in breach of confidence.
[74] Ms Pere submits that the final post by Mr Tucker in which he shared photographs of private messages between Metro Paws employees constituted a flagrant breach of confidence. That is because the messages appear from a photograph of the phone of one of the participants in the group chat, who can be assumed to be unlikely to have voluntarily provided the photograph. Hence, Ms Pere invites me to find that someone else has taken the photo without the phone owner’s consent, somehow gaining access into the phone to do so in breach of confidence. It is too speculative for me to form that conclusion.
[75] Additionally, breach of principle 7 does not appear to have been raised in the District Court. It is in the nature of a submission that the judgment should be supported on different grounds. Because I have concluded the Judge was right to find the threshold test met, the submission is academic.
Principle 8
A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.
[76] The Judge considered it was “somewhat naïve” of Mr Tucker to “argue that serious allegations of animal abuse would not prompt others to send aggressive,
48 Section 16(2).
49 Ministerial briefing paper, above n 31, at [5.66(6)].
abusive and threatening messages directly to the person the subject of the accusations”.50
[77] Mr Tucker submits that the Judge incorrectly found this principle breached by applying a test of “predictability”, that is, that there can be incitement or encouragement simply from what can be expected to follow. He emphasises that his posts and comments explicitly deterred any incitement to cause harm to any individual. This refers to the final “EDIT” to his first and second posts that I referred to earlier. It reads:
Just a heads up that I have been deleting and will continue deleting any comments that mention the names of any of the staff members, advocate any kind of violence towards anyone or encourage any type of illegal behavior (sic) in any way.
[78] Mr Bond submits that an intention by Mr Tucker to incite or encourage harm is not required by principle 8. This is contrary to an obiter comment by Fitzgerald J in Hooper. With some hesitation, I have concluded that Mr Bond is correct for reasons I will now outline.
[79] The Law Commission described its proposed principle 8 as deriving from the Crimes Act 1961 incitement provisions.51 It saw a civil principle as appropriate to address (in particular) group bullying.52 A limb of the offence created in s 22 of the Act is that the person make the digital communication “with the intention that it cause harm” to the individual. The concept behind principle 8 as being equivalent to inciting a proscribed act suggests that the person whose purpose is relevant in the phrase “for the purpose of causing harm” is the person incited or encouraged. It is their purpose that would make the conduct proscribed.53 In substance, principle 8 is directed at digital communications that incite others to make harmful communications.
50 Pere v Tucker, above n 1, at [30].
51 Ministerial briefing paper, above n 31, at [5.66(8)]. The Law Commission concluded earlier in its report, at [4.80], that no specific criminal offence was required for incitement because this was dealt with by ss 66 and 311 of the Crimes Act 1961.
52 The proposed wording was that a digital communication should not “incite others to send messages to a person with the intention of causing that person harm”. The words “with the intention” were replaced by “for the purpose of” in the principle as enacted: Harmful Digital Communications Act, s 6.
53 That is reinforced by the fact that it would be unusual to describe the digital communication itself as inciting or encouraging “for a purpose” which is the interpretation otherwise required.
[80] To the issue of whether intention to incite or encourage is required, all the communication principles are cast in terms of what a “digital communication” should not do. Both principles 8 and 9 are about digital communications that incite something. In the case of principle 9, it is inciting suicide. An internet post can have the effect of urging or encouraging someone to commit suicide without the person behind it necessarily having the intention to do so. Principle 9 should surely embrace this to be effective.
[81] Similarly, if principle 8 relied on the intention of the maker of the communication, there is no principle that would enable a post that in fact incites or encourages harmful group bullying to be taken down to mitigate this continuing. Taking down or disabling a provocative page or post that has ignited a firestorm might sometimes be appropriate because of the harm it is causing despite that it was made for laudable reasons and even if made in the public interest. That will be a result of the careful balancing exercise in s 19 and not, at the threshold, because of the thoughts behind the maker of the post itself. The post will have been a serious breach because of its “inciting” or “encouraging” effect, not because of the underlying intentions.54
[82] Accordingly, while commonly this will be a distinction without a difference, it is not necessary to find that the maker of the communication intends to encourage someone to send messages nor that the maker have the purpose of harming an individual. The issue is whether the digital communication has the effect of inciting (urging, spurring or encouraging) others to send messages for the purposes of harming an individual.
[83] I accept the respondent’s submission that the exhortation in the fourth “EDIT” was insufficient to neutralise the emotional outrage and outpouring that was whipped up by the posts themselves. In my view, although the tag sought to prevent violence
54 If posted with intention to harm a person, the person making the digital communication would commit an offence under s 22. If a person incites suicide (which would require intention on their part) this is an offence under s 179 of the Crimes Act. It is in the context of the offence, that the Law Commission commented that its wider proposed offence of incitement to suicide would not be used often because the word “incite” implied a desire in the “inciter” that the subject actually commit suicide: Ministerial briefing paper, above n 31, at [4.84]. I have concluded that this logic does not flow through to what a digital communication “incites” or “encourages” for the purposes of the communication principles.
and illegal behaviour, the nature of the communications in fact incited the harmful messages to Ms Pere that then followed, as did other messages posted by other parties on the Facebook page.
[84]The Judge was right to find this principle was breached.
Serious or repeated breach
[85] The threshold in s 12(2)(a) is not a light one. Although I have found that the communication principles have a potentially broad reach, a breach of those principles does not lead to a conclusion that the threshold is met. A threatened serious breach, a serious breach, or a repeated breach of one or more of the principles is required.
[86] The present case is not clear cut. But in my view, having regard to my conclusions above, there was no error in the Judge’s conclusion that the breaches of communication principles were sufficiently serious and were repeated so as to meet the threshold in s 12. The most serious and repeated breaches were of principle 3 and principle 8 as to grossly offensive content and inciting others through the 22 March post, the website, and the 27 March post.
[87] If I am wrong in my view of the scope of principle 8, the grossly offensive nature of the posts to a person in the position of Ms Pere (principle 3) would meet the threshold.
Did Ms Pere suffer the requisite degree of harm?
[88]Ms Pere deposed:
(a)She feared she or her staff would be physically attacked.
(b)She was terrified to use her work vehicle with Metro Paws livery, fearing she would be abused, threatened or followed home.
(c)She removed herself and her businesses from social media to protect her and her staff from abuse.
(d)She felt unsafe in her home as one of the commentors knew where she lived.
(e)She suffered from anxiety and sleeplessness, sought medical advice, and took medication to ease her symptoms.
[89]The context for this harm was as follows:
(a)Ms Pere describes anonymous calls and text messages, including multiple calls from an anonymous number with the caller ultimately texting “Cowards!... Tough enough to torture animals but too weak to handle the heat.”
(b)Ms Pere says there have been numerous abusive and threatening comments on Metro Paws’ Instagram page directed at her and her staff including the following:
One person posted repetitively on the Metro Paws page, including comments:
You’re actually all twisted and fucked in the head, the day I see you on the street will be a good fucking day, I’ll get a shock collar, sharpen in the brings and jab the thing right into your necks before I use it on full voltage you disgusting pieces of shit.
This led to another post by another person advising:
... right behind you buddy! ...
The original person posting went on to add further posts the worst of which said:
You guys are fucking disgusting, if I ever see [Metro Paws personnel he recognised from photos posted on their page] around I’ll be putting on my steel caps, giving you a swift hard kick to your ugly face, then I’ll slap a shock collar on you and go to town.
(c)A direct Facebook message threatened Ms Pere in the following terms:
Think it’s funny to abuse dogs? Think again fuck face. Someone needs a shock collar on her ugly head.
Another said:
Ur fucked cunt
[90] Mr Tucker accepts that the nature of the concerns raised in his posts would cause distress to a reasonable person as the evidence provided to the SPCA was significant and graphic. However, again he submits that this was not directed at Ms Pere specifically, and he says he took steps to ensure that people were aware that any mention of staff names or violent language would be deleted. He also draws a distinction between the cause of emotional distress to Ms Pere being the subject matter of his posts (animal abuse), rather than the posts themselves.
[91] In Hooper the nature of the posts were such that they effectively gave rise to an inference of harm leading Fitzgerald J to conclude that Ms Gee suffered serious emotional distress.55 The posts there were highly personal attacks in crude language, accusing Ms Gee in a public forum of child abuse, and repetitively.56 Mr Tucker’s posts and most of those posted on his page do not have the same crude character nor the degree of personal vendetta. In the absence of those features here, Mr Tucker’s submission in part appears to be that there cannot be relevant harm caused from a post if it alleges something in a measured way and is true.
[92] Ms Pere strongly contests the latter assertion. As well, the information Mr Tucker posted in his 22 and 27 March posts and on his website was not measured (given that Mr Tucker posted the emotive staff chat, photos, x-rays and emotive messages of complaint he received). Putting these points to one side, this limb is about serious emotional distress caused by the posts in fact. The ways that this can be shown are not prescribed. As I have said, if the other threshold of s 12 is met, harm caused by true material being posted might nonetheless sometimes lead to orders that posts
55 Hooper v Gee, above n 16, at [163].
56 Fitzgerald J also considered that she should disregard harm flowing from an Oranga Tamaraki investigation that resulted from the communications, at [162]. Similarly, any distress from an investigation being undertaken should also be disregarded here, but none is asserted.
be taken down, depending on the exercise of the balancing test at the next stage. At this stage, the issue is simply a factual enquiry of the degree of harm flowing.
[93] In terms of the factors identified by Downs J in Police v B, set out at [24] above, the nature of Ms Pere’s distress included fear for her personal safety; the intensity of the harm encompassed significant physical consequences for which Ms Pere needed to seek medical assistance and medication; the duration was considerable, and had the posts not been removed would likely have continued; and the harm manifested in the symptoms described earlier and Ms Pere altering her habits.
[94] As to the context, the widely disseminated allegations of grossly offensive conduct impacted her career and personal reputation. There were also direct threats of violence resulting. Mr Tucker’s submission tended to mischaracterise much of the harm that Ms Pere says she has suffered. This is from how other internet users reacted to the posts, not just from the content of the posts themselves. I accept the level of fear Ms Pere felt was justified, including because it is evident that some people posting were aware of where she lived.
[95] The Judge was not wrong to conclude that serious emotional distress was established by the matters outlined in [88] above.
Does an order unreasonably curtail Mr Tucker’s right to freedom of expression?
[96] It is to the s 19(5) matters that most of the submissions by Mr Tucker ought to have been directed as to his good motives, the public interest in what he sought to achieve and efforts he made to avoid harm.
[97] Mr Tucker submits that the Judge did not go far enough to demonstrate that the right to freedom of expression was reasonably restrained by the order in light of the limitations in s 5 of the New Zealand Bill of Rights Act and the Act.57 He submits he was expressing genuine concerns about the welfare of animals at the facility and had no malicious intent. He contends that petitions are an integral part of how community groups campaign for change. He submits Ms Pere has not suffered enough harm to
57 He refers to Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [180]; R v Oakes [1986] 1 SCR 103, at 138–140; and Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 at [14].
outweigh the importance in society of expressing concern about animal welfare and his right to create, share and collect signatures. Ultimately Mr Tucker submits that his actions do not fall within the scope of the Act, which is intended to prevent targeted bullying of an individual.
[98] I recognise the significance of the public interest concern Mr Tucker raises. I also accept Mr Tucker’s explanation of his motives. However, as the Judge commented, while well-intentioned. Mr Tucker’s purpose was to use digital communications through the vast reach of Facebook to hold Metro Paws personnel to account to his expectations, but irrespective of the uncontrollable consequence of that dissemination and the effect of its content.58
[99] This case is more finely balanced than the crude personal attacks considered in Hooper or Tranter which are the key High Court authorities on the civil provisions of the Act. However, Mr Tucker’s posts provided a platform for others to make serious and offensive allegations which he then posted on his website in an anonymised way, making it fraught for Ms Pere to try to respond. This in turn led to what Mr Bond fairly describes as a torrent of unacceptable abuse directed at Ms Pere and with little or no ability for her to defend herself.
[100] The Judge was correct to observe that Mr Tucker had no way of properly assessing the truth or falsity of the material posted other than the conduct he says he witnessed, yet posting it implied acceptance of its truth. The SPCA was the appropriate entity to investigate, and where appropriate, prosecute. Mr Tucker’s first post’s request to have people contact the SPCA with complaints, and even the petition he set up of themselves may not have resulted in orders. However, Mr Tucker went too far by his 22 and 27 March posts and website that used graphic images and incorporated the messages he received.
[101] I accept that Mr Tucker tried to minimise harm by redacting names in the messages he posted and in urging those posting to behave appropriately. However, those attempts were not effective. The posts became disproportionate to what he was seeking to achieve.
58 Pere v Tucker, above n 1, at [51].
[102] Moreover, at the time the Judge made the orders, Mr Tucker’s posts had been widely published and elicited responses that he then evidently referred on to the SPCA. The posts were not taken down pursuant to the interim orders until at least 9 April 2021. Therefore, the initial posts had been up for several weeks and the two subsequent posts had been up for over ten days. I infer that the notifications that the SPCA investigated included those elicited by the combined effect of these posts. From a public interest perspective, Mr Tucker’s platform had had the effect he sought in producing content aimed at having the SPCA investigate. Ultimately it decided not to prosecute. In the circumstances, permitting the posts to remain after that point was likely to result in continuing harm to Ms Pere, yet without the original justification from a public interest perspective.
[103] Although Mr Tucker was entitled to make a complaint to the SPCA, and there was a level of public interest in his “campaign”, continued “shaming” by the posts was not in the public interest. In my view the orders were (and even more so, now remain) appropriate regards allegations that are now (even more) historical.
[104] The Judge examined the principles set out in s 19(5) of the Act and in doing so carefully and explicitly balanced the issue of Mr Tucker’s right to freedom of expression. Ultimately, he determined that the constraints sought by Ms Pere were reasonable and demonstrably justified given the harm she would otherwise suffer. I see no error in this conclusion.
[105] Mr Tucker says the orders should at least be amended so that they cannot be seen as worded in a forward looking way in the nature of a gagging order. I apprehend he may wish to be in a position to embark on a further campaign. Insofar as they are future looking, the orders require him to refrain from similar posts and not to encourage other persons to engage in similar communications. I do not regard this wording as over-reaching.
Result
[106]I dismiss the appeal.
Costs
[107] The appellant has advised he is legally aided. Nonetheless, Ms Pere has said she wishes to be heard on costs. She is to file any memorandum within 14 days.
Anderson J
2
6
0