Feelings over facts

Feelings over facts... 

Such is the rationale behind moves by senior civil servants in the New Zealand Ministry of Foreign Affairs and Trade (MFAT) to silence public criticisms made by a Kiwi think tank.

We have another concerning story of how the Harmful Digital Communications Act (HDCA) is being used to censor individuals. 

The directors of the Israel Institute of New Zealand (IINZ) – Perry Trotter, Ashley Church and Dr David Cumin (who, we note, is also on an advisory council for the Free Speech Union) - face legal action under the HDCA. The grounds for censorship are remarkably simple. Certain senior MFAT officials allege they have suffered significant emotional distress as a result of their names being cited publicly in IINZ’s online criticisms.

Yup, you read that right. Senior government officials, each paid handsome salaries to craft and implement our foreign policy, claim they are emotionally distressed by a lobby group's tweets. 

Forget those pesky details called ‘facts’ when we can just resort to punishing people based on feelings.

Here's the story:

IINZ, by its own description, is an “independent think tank dedicated to providing New Zealanders with a better understanding of the State of Israel through accurate analysis, insightful commentary, and effective advocacy.”

(Before we go any further, I will just note that questions related to Israel are highly contested; I understand that - especially since October 7 and the most recent Gaza war. Our work isn't about that at all, it's about the fact that in a free country like New Zealand, I respect your right to hear others opinions, and make up your own mind. I also respect your right to disagree with me and express that. Unfortunately, it seems some MFAT officials don't have the same respect for you). 

This Kiwi organisation has for over five years consistently called on MFAT to rethink its practice of sending more than $1million annually to a heavily-compromised United Nations agency (UNRWA) operating in Hamas-controlled Gaza.

Evidence offered by IINZ in support of its claim includes a damning report by a European Union taskforce expressing grave concerns over UNRWA activities such as Gazan schools openly promoting violent Hamas propaganda in classrooms and the glorification of suicide bombers.


Despite repeated warnings to MFAT about UNWRA’s alleged failings over more than five years, NZ officials continue to refuse to acknowledge IINZ’s concerns. MFAT has shown no desire to engage in debate over this issue.

No matter your position on the Gaza conflict, one would hope there exists a basic consensus in NZ that we should be free to publicly criticise senior government officials, who are leading our nation to give money overseas to parties some find highly dubious.

Without that freedom to criticise, how can we ensure transparency and hold decision-makers accountable?

To be very clear, this isn’t doxxing we’re talking about. No private addresses or vital statistics are being splashed all over the internet. This is simply about calling out a handful of prominent officials whose job titles are either openly listed on a government website or mentioned in official correspondence.

This is where the HDCA is proving to be a handy censorship tool. You only need to follow a few easy steps! 🤦‍♂️

The complainants (in this case, certain MFAT officials) begin by lodging a complaint with Netsafe, the “approved agency” tasked under the HDCA with receiving and assessing “complaints about harm caused to individuals by digital communications”.

Netsafe then looks at the claim, mediates between the parties concerned and, in some instances, produces a statement supporting the claims of the complainant if the latter decides to pursue legal action through the District Court.

Yet on closer inspection, the HDCA is fundamentally flawed both in theory and in practice.

With one hand, the HDCA holds up the protection of the Bill of Rights Act (NZBORA). But, on the other hand, it hollows out that protection by making provision for complaints on grounds of “serious emotional distress.”

Interfering with the right to tell the truth about others promotes fake news and fake reputations. The HDCA allows a complainant to exploit the courts and suppress criticism by claiming “serious emotional distress”, irrespective of truth.

Of course, what counts as “serious emotional distress” is largely in the eye of the beholder, therefore framing any argument on the complainant’s terms.

Without an external gauge for such alleged harm, it isn’t clear from the HDCA that Netsafe is allowed to doubt the subjective experience or consider whether the complainant’s emotional reactions are proportionate to the speech in question. But what is clear is that Netsafe does not have to investigate or take seriously “vexatious” claims. Some discretionary power, therefore, exists in this respect.

So, why has Netsafe chosen to investigate IINZ then? Your guess is as good as mine.

Free speech as a defence was therefore forfeited in the HDCA from the moment “serious emotional distress” was admitted as grounds for complaint. Unlike a defamation lawsuit, truth under the HDCA is no longer a defence in a NZ court of law.

Let that last sentence sink in for a moment.

Compounding this travesty of justice, some judges appear to have attached significant weight to the expert opinion of organisations like Netsafe, having assumed their report is a generally comprehensive assessment of the context and evidence as it affects both sides.


Ironically, Netsafe, until recently, had assumed judges believed the reverse was true and regarded their own contribution as merely one piece of the puzzle rather than a comprehensive review of all the evidence.

For context: Netsafe was originally set up to offer a socially beneficial range of services in the areas of online education, research and mediation, particularly in matters of bullying and exploitation affecting children and teens. This is important work, but even the non-profit accepts it's difficult to pair that at times with the role handed to it by the HDCA.

A recent case involving a Kiwi Chinese journalist and an alleged China Communist Party proxy in Auckland perfectly illustrates this point. You might remember Portia Mao's story - you can read it again here

The Free Speech Union is assisting both IINZ and Portia Mao in the exercise and defence of their free speech rights. More importantly, we're also working to have the HDCA amended, so that it can no longer be weaponised to silence dissenting voices. 

And we know that other cases exist, but because some decisions have not been published by the courts, we are still attempting to establish the total number. But the two outrageous cases above should be more than enough reason for the NZ Government to amend the HDCA, or, even better, replace it with something that doesn’t undermine section 14 of NZBORA.

This law is proving to be hate speech legislation by another name.

Would-be-censors maintain that free speech is used to suppress the rights of minorities. But the cases discussed reveal how this is utter nonsense.

In one instance, a critic of authoritarian China, and in the other, those campaigning against state funding of a foreign terrorist organisation, are facing censorship under NZ law.

Hate speech laws, in their various guises, introduce an element of emotional subjectivity that can trump the principles of proportionality, reason and evidence.

Free speech, on the other hand, levels the playing field.

If we can restore this value, we can protect Kiwis from the censorial tendencies of crybullies rather than indulge the vexatious emotional complaints that have now become a fixture of the NZ judicial system.

Thank you for your support. 

Stephen Franks
Council member

Free Speech Union
www.fsu.nz

P.S. In response to stories like Portia Moa, NZII, and others who are hounded and silenced by the HDCA, we are working to pressure the Government to review this legislation and ensure it can't be used by those who want to censor dissent.

This is just one of dozens of ways we are currently fighting to protect and expand your right to think and speak freely. Fighting for our freedom isn't free, but it's essential. Would you once again chip in for the fight?  

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  • Nadia Braddon-Parsons
    published this page in Blog 2025-02-04 10:18:55 +1300

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