Former New Zealander of the Year Sir Ray Avery has laid a complaint against Newsroom.co.nz under the Harmful Digital Communications Act over a series of news reports on his background, products and promises.
Avery has told Netsafe, the legal agent for considering complaints under the Act, the reports have caused him serious emotional distress and amount to a form of digital harm - and wants Newsroom to consider removing them and to agree not to write further news stories about him.
"Ray believes these are written with the purpose of harassing him and contain false allegations," Netsafe has told Newsroom.
It is one of the first times the Act has been used against a media company publishing news reports. Most instances envisaged by Parliament and which have been the subject of complaints have been online and social media harassment.
The law aims to deter, prevent and lessen harmful digital communications. This includes cyber bullying, harassment and revenge porn posted online through emails, text, websites, applications or social media.
Netsafe has been the agent for complaints since 2015. In its latest report, for the period April to June this year, it registered 706 complaints alleging personal harm - the main reasons being:
- Repeated unwanted communications;
- False allegations;
- Discloses sensitive personal facts; and
- Threatening, intimidating & menacing.
Avery has said the complaint is a precursor to a civil action against Newsroom in the district court, an option available to complainants if the Netsafe process cannot resolve issues raised.
In his complaint, which Netsafe has referred to Newsroom for response, Avery cites five of the numerous stories this site has published on his planned public fundraiser of $4 million for LifePod incubators, his previous product promises, and the views of more than a dozen people who had worked with him in the past.
Newsroom found none of the three main products highlighted on his charity Medicine Mondiale's website had gone into production, that the LifePod had not yet been granted international standards certification and clinical trials said to be underway in India could not be independently confirmed.
Exaggerated claims by media of his role at the Fred Hollows Foundation helping people regain their sight had been perpetuated over the years in coverage of his personal awards such as the 2010 New Zealander of the Year title.
Avery acknowledged in a taped interview with Newsroom that a key aspect of the LifePod fundraiser, that the products would help save one million babies, had been a 'marketing' number.
Last week, when the Netsafe complaint landed at Newsroom, we were ready to publish a further investigation - and did so - showing Avery emailed a University of Auckland researcher in 2015 trying to have a journal article on a trial of his Acuset IV drip product suppressed - telling the academic: “You really don’t want this from a career perspective”. Avery told Newsroom the university did not have his permission to publish the results of its research.
Netsafe executive director Martin Cocker said the Act did not exempt media coverage, although most complaints focused on individuals using digital media against other individuals. It was not up to his agency to determine if a breach of the Act had occurred but to try to resolve the dispute. It was for the complainant if he wanted to take the matter on to the district court.
Newsroom will respond to Netsafe, seeking details of the basis for the complaint, including any falsehoods he alleges in our reporting. But this site could not contemplate removing the extensive news coverage, featuring thousands of words of Avery's in explanation and comment, and many examples of his own email communications.
As explained in our original stories on July 25 we believed it was important and clearly in the public interest that as his fundraising moved to seek $4 million from the public for LifePods, bold claims, both past and present, be put under close scrutiny.
Newsroom co-editor Mark Jennings said: "This action is a misguided attempt to stop journalists highlighting important issues of public interest, by co-opting the harmful digital communications regime to try to keep investigative stories off the internet.
"We don’t believe this is what Parliament had in mind and we will oppose this tactic, on behalf of all news media. The public has a right to know, especially when it is being asked to donate money.”
Researcher and media commentator Gavin Ellis raised the spectre of someone using the Harmful Digital Communications Act to suppress news stories about themselves in his book Complacent Nation in 2016.
"My firm view is that this is a misuse of legislation which, unfortunately, was drafted too loosely to prevent this sort of complaint. I was told when I raised my concerns that the threshold (for accepting complaints) would be set high. This complaint, if accepted by Netsafe, suggests the bar has not been set high enough."
Ellis, a former editor-in-chief of the New Zealand Herald and chair of the Media Freedom Committee, said complainants over news coverage had other ways of seeking redress. "Ray Avery has other regulatory and legal avenues that he can pursue. If he must, he should use them. This law was designed to curb cyber-bullying, not as an alternative to the New Zealand Media Council."
Newsroom's full coverage of Avery and his products and promises is: