We received a tipoff, much to our astonishment, that the new CEO of a certain DHB has either attempted, or intends to take civil action against three LA bloggers and one employment advocate under the Harmful Digital Communications Act (HDCA). This has been confirmed by Netsafe.
Actually we shouldn’t be surprised given the DHB’s enthusiastic attempts to silence a whistleblower who it couldn’t get to sign an NDA in mediation. That whistleblower had been dismissed from the DHB - she claims unjustifiably - in 2015. Proceedings are ongoing and probably won’t be resolved until 2021.
For context, Netsafe deal with a lot of objectionable material such as revenge porn. Where media is highly objectionable and is likely to cause extreme distress, the Netsafe phase can be bypassed and the District Court can issue a Takedown Order under urgency.
The way such civil actions and prosecutions usually play out is the District Court will refer the complainant to Netsafe, which offers a low level resolution service including contacting the publisher. If that doesn’t work, Netsafe will record its interaction with the complainant, refer him or her back to the District Court with that record, and close their file.
The complainant recently got promoted to CEO despite a continuing employment dispute that is currently in the Employment Court where the DHB had issued separate proceedings in retaliation. The substance of the DHB’s allegations in the retaliatory proceedings are that when the (future) CEO allegedly stalked the former employee at her new workplace, she posted photos of him doing that on her private Facebook page, and after a disputed dismissal she took part in a RNZ programme about bullying in the DHB.
It appears that he has chosen not to allow Netsafe to contact us requesting removal of the article and instead obtained the requisite paperwork from Netsafe to allow him to file in the District Court. Six to seven weeks later, we had not heard from the District Court or Netsafe and we would have been none the wiser had the Netsafe documentation not surfaced last week.
The nature of the legal research that we do is we are going to upset some people. Obviously we’re careful not to post anything inappropriate or breach anyone’s rights and we are not sure what the complainant is complaining about specifically, but we have not broken any laws or breached any court orders, even orders we don’t think are legally valid.
What we don't yet know is whether the complainant has already tried to take legal action through the District Court and been told his case lacked merit, or whether he has not yet attempted to file but is looking to do this at a more “strategic” time. But the DHB is party to two employment disputes and one Judicial Review that we know of, in the Employment Court and Court of Appeal respectively. Knowing what we know about these proceedings, the Netsafe complaint suggests desperation, or great enthusiasm if you prefer!
Meanwhile, the hearing on two Personal Grievance claims against the DHB which was supposed to happen this week has been adjourned. We’ll report on any further developments including judges’ decisions as they come in.