The High Court has helpfully clarified that the Harmful Digital Communications Act 2015 (HDCA) is not a backdoor way to restrain media reporting prior to publication, in a reset which pulls the operation of the HDCA back to its original purpose. 

Why this re-set matters

• The HDCA is aimed at curbing online abuse, not responsible journalism: it is not a general tool for reputational protection and does not displace defamation law, privacy law or media self-regulation. The courts will be slow to intervene where journalists are testing allegations, even where publication is strongly disputed and likely to cause distress.
• Harm alone is not enough: an applicant must show a likely serious breach of the HDCA’s communication principles before distress or reputational impact becomes relevant.
• Public interest and freedom of expression carry significant weight: courts will be slow to suppress reporting on matters of legitimate concern.
• Key takeaway: applicants should tread carefully before seeking to stretch the operation of the Act beyond its original purpose. 

In Keller v Peters^[1], the High Court considered whether a journalist should be restrained under the HDCA from publishing an article.  

The appellant, Mr Keller, applied under the HDCA for interim orders to stop digital communications about him, including a proposed article by Ms Ridout, a Stuff journalist. The application followed concerns raised about Mr Keller, a senior figure in a community organisation, by several women alleging he had behaved in a persistent and unwelcome way over many years. One of those women, Ms Peters, began raising those concerns with others, including on social media seeking to understand whether similar experiences existed about Mr Keller’s behaviour towards women. As a result, more allegations emerged. Mr Keller reported Ms Peters to the police, requested she take the posts down, and contacted Netsafe as the approved HDCA agency for advice about Ms Peter’s posts. 

The journalist, Ms Ridout then picked up the story and began investigating. She spoke to sources, contacted the organisation involved, and contacted Mr Keller as part of a journalistic investigation to put the allegations to him and seek his response before publication of a Stuff article about him.

In concern about the potential impact of the publication, Mr Keller made an urgent without notice application to the District Court for non-publication orders under the HDCA. The application alleged that threshold for action under the HDCA was met as the threatened publication would cause a serious breach of the communication principles likely to cause serious emotional distress, particularly:

• Principle 1 (disclosure of sensitive personal facts);
• Principle 5 (harassment); and
• Principle 6 (false allegations).

Mr Keller filed psychiatric evidence to support his claim that the alleged breaches would cause him significant emotional and psychological harm.

The District Court initially made interim orders restraining both Ms Peters and Ms Ridout from sending, posting, or publishing digital communications concerning Mr Keller, including publication of the proposed Stuff article. However Ms Ridout opposed the orders and after hearing from her, the District Court discharged the orders against her, finding insufficient evidence that her reporting would breach the HDCA and that harm alone was insufficient.

Mr Keller appealed to the High Court. The High Court dismissed the appeal, holding that the HDCA threshold was not met and that the HDCA is not intended to be used to pre emptively restrain responsible journalism.

Lessons from the case

This decision reinforces the purpose of the HDCA - a targeted tool to protect genuinely harmful digital communications, not to suppress legitimate debate or reporting. 

Emotional or reputational harm alone is insufficient; an applicant must first show a likely serious breach of the Act’s communication principles. Where journalism is careful, investigatory, and framed as testing allegations rather than asserting them as fact, that threshold will be hard to meet.

The Court also reaffirmed the strong weight given to freedom of expression and public interest reporting, particularly where the subject holds a position of influence or trust. 

The decision made it clear that the HDCA operates alongside, not instead of, traditional media accountability mechanisms, meaning concerns about accuracy, fairness or privacy will usually need to be addressed through defamation, privacy law or media complaints processes after publication, rather than by seeking to stop reporting in advance.

Get in touch

If you would like to discuss what this means for your organisation or online communities, please reach out to one of our experts who will be happy to assist.

Special thanks to Charlotte Fox and Holly Soar for their assistance in writing this article.