Ray Avery, Netsafe and the right to public discourse

Written By: - Date published: 4:52 pm, September 12th, 2018 - 5 comments
Categories: journalism, Media - Tags:

Past New Zealander of the year Ray Avery has complained to Netsafe about Newsroom’s coverage of his charity.

Andrew Geddis at Spinoff describes the background:

In a series of articles, Newsroom has raised doubts over some of Avery’s widely praised past and promised contributions to people’s health in the developing world. As Newsroom itself pointed out, this somewhat sceptical approach to Avery differed markedly from the glowing praise that our media generally lavished on him and his stated achievements.

It would be fair to say that Sir Ray was not impressed with this challenge to his public profile, and he’s got at least one faded star of the internet past on his side. But if Sir Ray thinks that Newsroom has done him wrong in its coverage, there are ways to rectify that. There’s the Media Council and its standards for good reportage, and there’s the High Court and an action for defamation.

And there’s always NetSafe, which can field a complaint that Newsroom’s coverage is a harmful digital communication that has caused Sir Ray Avery significant harm.

Woah, hang on. What was that last one? Using the provisions of the Harmful Digital Communications Act 2015 – legislation purportedly enacted to combat things like cyber-bullying, trolling and posting revenge porn –  to challenge and seek to have taken down a media organisation’s news stories? That can’t be right, can it?

Well, apparently that’s what Sir Ray is trying to do. As Newsroom reported today, he’s filed a complaint with NetSafe alleging that five of its stories written about him were “written with the purpose of harassing him and contain false allegations” that have caused him emotional harm.

For those of you interested in who the faded star of the Internet referred to by Geddis is, it is Cameron Slater.

Mediation has been proposed.  Tim Murphy from Newsroom has indicated that in his view the stories are in the public interest and they will not be withdrawn.

You would hope and expect Avery to lose.  But stranger things have happened.

The principles in the Act state that digital communications should not:

  • disclose sensitive personal facts about an individual.
  • be threatening, intimidating, or menacing.
  • be grossly offensive to a reasonable person in the position of the affected individual.
  • be indecent or obscene.
  • be used to harass an individual.
  • make a false allegation.
  • contain a matter that is published in breach of confidence.
  • incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.
  • incite or encourage an individual to commit suicide.
  • denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

There is a requirement that the Courts “act consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.”  There is a further requirement that before making an order there is a “threatened serious breach, a serious breach, or a repeated breach of 1 or more communication principles”.

It is difficult to understand how the provisions of the Act can apply to a media outlet when defamation law or the ability to complain to media entities do not provide an adequate remedy.

I can’t see how the complaint can succeed.  But a decision could be helpful in determining the extent of the powers of Netsafe and the Court under the Act.

There are conspiracies swirling around about Helen Clark and the frustrated charitable concert scheduled for Eden Park.  But this looks quite straight forward.  Avery’s attempt to raise money through charitable donations deserves public scrutiny.  And the media is doing its job in digging into the accuracy of Avery’s claims.

5 comments on “Ray Avery, Netsafe and the right to public discourse”

  1. Dennis Frank 1

    I’m picking he’s using the false allegation clause and possibly the harassment clause. If the first, scientific evidence will be presented to the court by both sides. Truth will be decided according to which seems more persuasive to judge/jury.

    If harassment, the number of times newsroom have made him their target would be a significant influence on the outcome. There’s also the possibility that they could settle out of court via an apology.

  2. Leighton 2

    When this Act was passed I was concerned about the potential for it to be used in this chilling way. The bizarre thing is that if this works, it would restrict online news sources but the exact same thing published in the print version of the Herald would not be actionable. I tend to agree that if false facts have been published then his proper legal remedy is in defamation.

  3. Ross 3

    Andrew Geddis says that Avery could complain to the Media Council. But why would he want to go through that toothless tiger?

    The Council does have power to censure a publication. It has never done so. The Council considered imposing a censure in this case but felt the case falls just short of such a drastic step.

    So, despite the media being in the wrong on multiple occasions over many years, the Media Council has never censured a media publication.

    https://www.stuff.co.nz/auckland/105075820/media-council-rebukes-stuff-over-inaccurate-court-reporting

    The media sometimes act in bad faith. That isn’t recognised by Geddis who seems to be a cheerleader for Newsroom. I have no idea if Newsroom have acted in good faith in this case. I’m not suggesting I agree with Avery who seems to be trying to crack a nut with a sledgehammer. But for Geddis to be taking sides without all the facts seems off.

  4. SPC 4

    I always wondered why it was necessary to finance the project via the concert and public donations – any good idea to help in the third world that could validate its worth would not lack support from wealthy philanthropists.

  5. R.P Mcmurphy 5

    It could be said that the Eden park concert was designed by slater, avery and hooton to harass Helen Clark with a big heap of money. these people will stoop to anything

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