A series of appeals under the Harmful Digital Communications Act 2015 (HDCA), culminating in a Court of Appeal decision, have delivered important guidance on the limits of the HDCA and its interaction with freedom of expression.

The case

The Li v NZME Publishing^[1] proceeding arose from three New Zealand Herald articles reporting on Mr Li’s involvement with a woman’s death in Canada, his conviction in China, and his subsequent attempt to obtain refugee status in New Zealand. Mr Li sought a range of orders under the HDCA including take down orders, corrections and a right of reply.

Mr Li argued that the articles were false, that he had been defamed, and that the reporting caused serious harm to him and his family. The case reached the Court of Appeal after the District Court dismissed his application and the High Court dismissed his appeal. The Court of Appeal firmly declined Mr Li’s application for leave to appeal, supporting the findings of the lower courts.

Why the HDCA claim failed

Section 12(2) of the HDCA requires an applicant to establish a threatened, serious, or repeated breach of one of the ten communication principles in section 6, and that the breach has or is likely to cause harm. Mr Li primarily relied on principle 6, which provides that a digital communication should not make a false allegation. He argued that the articles were false because the Herald had not proven the truth of his conviction in its reporting. When asked by the Judge whether he accepted he had a conviction in China, Mr Li declined to answer, maintaining that this was for the Herald to prove.

The High Court firmly rejected this. As the party alleging a breach of the communication principles, it was incumbent on Mr Li to prove that the articles contained false allegations. The High Court corrected Mr Li’s misunderstanding, observing that:

"an application for relief under the Act is not a defamation claim (in which truth falls to a defendant to establish)".^[2]

The Court of Appeal reinforced this point, noting that Mr Li “continues to confuse or conflate” applications under the HDCA with defamation proceedings. It emphasised that:

“he is simply wrong to say that the probative or evidential burden lies on NZME or the other respondents to prove truth in these proceedings”.^[3]

The Court of Appeal’s decision implicitly endorses the findings in the lower courts that the HDCA was not intended to target legitimate journalism.

What does this mean for media?

The decisions should provide reassurance to media organisations, publishers, and others engaged in public-interest communications that the HDCA will not readily be used to challenge legitimate reporting.

The cases also provide helpful clarification that:

• HDCA claims are distinct from defamation claims;

• applicants bear the burden of proving a communication principle has been breached;

• harm without breach will not justify relief; and

• freedom of expression remains a significant consideration when courts assess complaints about online publications.

For organisations publishing content online, the judgments confirm that the HDCA remains targeted at genuinely harmful digital communications rather than robust reporting on matters of public interest.

If you would like to discuss this decision and its implications, please contact one of our experts.

Special thanks to Lucy Reilly for her assistance in writing this article.