David Harvey

Tucker v Pere [2024] NZHC 3209

The case of Tucker v Pere, a decision of the High Court on appeal from a District Court decision, centres on Facebook posts made by Samuel Tucker alleging animal abuse at Metro Paws Doggy Daycare and Pet Hotel, managed by Nicola Pere.

The posts led to significant public backlash and abusive messages directed at Pere, causing her severe emotional distress.

The court reviewed the District Court’s decision, which had ordered Tucker to take down the posts and refrain from making similar future posts under the Harmful Digital Communications Act 2015 (HDCA).

The High Court examined whether Pere had standing as an affected individual, the engagement of communication principles, the harm suffered and the balance with Tucker’s right to freedom of expression.

The court upheld the District Court’s decision, concluding that the posts breached several communication principles, caused serious emotional distress to Pere and that the orders were justified and did not unreasonably curtail Tucker’s freedom of expression.

The appeal was dismissed.

 

The background

On 16 January 2021, the appellant, Samuel Tucker, alleged he witnessed animal abuse by two staff members at Metro Paws Doggy Daycare and Pet Hotel in Te Rapa, Hamilton. The respondent, Nicola Pere, is the managing director of the companies operating this daycare and hotel.

Tucker made several posts on his personal Facebook page, starting on 12 February 2021, which included serious allegations against Metro Paws and its staff. These posts attracted significant attention, being shared more than 200 times and generating hundreds of comments.

Tucker contacted the SPCA on 2 February 2021 and after his posts, the SPCA opened an investigation. However, by 17 March 2021 the SPCA advised that it would close its investigation due to the lack of evidence for prosecution, leading Tucker to intensify his online campaign.

Pere denied the allegations, stating that the posts led to abusive and threatening messages directed at her and her employees. She described experiencing severe stress, anxiety and threats to her safety, which prompted her to disable the Metro Paws Facebook page and take down Instagram temporarily.

The allegations made by Tucker on his Facebook page can be summarised as follows:

• Witnessing animal abuse: Tucker claimed he personally witnessed staff at Metro Paws hitting dogs on two occasions.
• Failure to address the issue: He stated that after discussing the issue with the manager and owner, he did not receive any assurance that the problem had been dealt with.
• Use of shock collars and other abuse: He posted messages and images on his website and Facebook page alleging the use of shock collars and other forms of abuse by the staff at Metro Paws. ​This included images of injured dogs and x-rays, as well as messages from ex-staff and ex-clients accusing the daycare of various forms of mistreatment.
• Staff chat messages: Tucker shared photographs of a mobile phone message chat from a Metro Paws employee group chat, which he claimed showed employees, management and ownership admitting to using shock collars and steel toe boots on customers’ dogs.
• SPCA investigation: He mentioned that the SPCA had opened an investigation into Metro Paws based on the allegations and encouraged others to provide evidence to support the case.

The allegations were disseminated through several Facebook posts as well as a website. There was significant public reaction, including comments on Tucker’s Facebook page. In addition, Tucker’s campaign resulted in threatening and intimidating posts from members of the public on the Metro Paws Facebook page.

Tucker amplified his claims of animal abuse in a number of ways:

• Facebook posts: In addition to posts on his personal Facebook page, he also posted material to the “Political Action for Animals Waikato” (PAAW) Facebook page, detailing his allegations and sharing information about the SPCA investigation.
• Emails and messages: He attached an email sent to the owner of Metro Paws and her response, although these redacted Pere’s name.
• Edits to posts: Tucker added edits to his posts, thanking people for sharing their stories, providing the SPCA phone number and case number, and announcing that media outlets were interested in running a story. He also mentioned a private prosecution and asked for statements or veterinary records from those willing to give them. ​
• Website content: On his website, Tucker provided screenshots of messages from ex-staff and ex-clients with accusations of animal abuse at Metro Paws. This included images of injured dogs, x-rays and allegations of the use of shock collars and other forms of abuse. He redacted the names of the senders of these messages. ​
• Photographs of staff chat: He posted photographs of a mobile phone message chat from a Metro Paws employee group chat, which he claimed showed employees admitting to using shock collars and steel-toe boots on customers’ dogs. ​
• Petition: He created a petition on his website, calling for people to tell the SPCA to prosecute Metro Paws. This which was accompanied by an image showing a dog with bandaged legs and a Metro Paws logo.

There were five issues on appeal, including a consideration of a breach of communications principles, whether the breaches were serious and/or repeated and the nature of the harm that was suffered.

The issues of standing to bring proceedings and whether the orders made against Tucker unreasonably curtailed his right to freedom of expression under the New Zealand Bill of Rights Act 1990, and whether such limitations were justified, are the subject of this article.

I shall write about the other matters in a subsequent article.

 

Standing

Under the HDCA’s civil enforcement regime, only individuals can apply for relief under s 19. Corporate entities or groups cannot do so.

This has become a contentious issue and is likely to form the basis of suggestions for statutory amendment to widen the scope of “affected individuals” as they are described in HDCA.

Tucker’s position was that the posts he made were directed towards Pere’s business rather than her personally.

However, there were a number of references to the owner and to employees of the business, although on some occasions Tucker redacted names.

The court dealt with the issue of standing by considering whether Pere was an affected individual within s 11(1)(a) HDCA.

The judge noted that although the communications were directed at Pere’s businesses, they included a number of references to the owner and employees, making it analogous to the case of Tranter v Kemp [2020] NZHC 1257 where allegations would inevitably be perceived as against the individuals.

 

Tranter v Kemp

This was an appeal against a decision where orders were made under the Harassment Act 1997 and the HDCA.

In that case, there was a dispute over an unpaid invoice which went to the Disputes Tribunal which decided in favour of Tranter. After the decision, Tranter published a blog and distributed flyers criticising the business and its principals, including a photo of Kemp and her partner. The content was deemed excessive and harmful.

Kemp contacted Netsafe, which advised Tranter to take down the publication. He complied but later reposted an amended version without the photo.

The District Court found Tranter’s publications to be motivated by a desire to punish Kemp and the business, leading to the restraining order and the order to take down the material.

The High Court allowed the appeal in part, quashing the restraining order but confirming the HDCA orders with specific terms to prevent further harmful publications.

The issue of standing arose because Tranter’s posts referred to the Kemps’ business, Mapua Landscapes T/A Mapua Contracting. Simon France J made the following observations on that point:

[20] As a preliminary matter, the appellant notes the application was made by Ms Kemp on behalf of the business. The Act only allows for applications by individuals, not corporate entities. I will treat it as an application by Ms Kemp recognising, though, that the harm must be to her, not the business.

[21] A theme of Mr Tranter’s response to both applications was to emphasise his posts were directed at the company, not its directors. While this is so to a certain extent, there are numerous references to Ms Kemp and her partner individually. There are allegations of false invoices, doctoring photos and similar conduct which the reader would inevitably see as an allegation against the individuals. And of course the original post and the flyer had a photo of the two individuals. I am accordingly satisfied the publications and flyer were directed at both the individuals and the business.

The presence of photos of the Kemps merged their individual status into the posts about the business as well as there being numerous references to them as individuals throughout the posts.

Thus the target of the communication is important as well as the perception of readers of the posts.

In Tucker, Anderson J developed the theme in Tranter and noted:

“whether the digital communication names or identifies the individual will obviously be relevant. But the issue turns on an alleged link to suffering harm as a result of the digital communication. That is not informed by an overlay as to whether a person was ‘targeted’ or identified as such.”[47]

Then the judge discussed the reasons why body corporates are not covered by the HDCA:

“The basis for limiting standing to individuals is that a body corporate is an artificial construct and cannot itself suffer emotional distress. However, as the Law Commission observed, “an attack on a small business will often be read as an attack on the proprietor personally, in which case he or she will have standing to complain.” [48]

In Tucker the judge found that Pere was the face of the business. It was a family business owned by the interests of Pere and her husband.

Pere worked in it full time. She was clearly identifiable in Tucker’s posts, which referred to the “owner” and used pronouns like “she” and “her”. Although there were occasions when her name was redacted, nevertheless there was an oblique reference to her as “the owner”.

 

Hooper v Gee

Anderson J also referred to the case of Hooper v Gee [2022] NZHC 1854.

That case concerned social media posts by Pebbles Hooper responding to posts on the Instagram account of Bernadette Gee’s business, Magnolia Kitchen, on which Gee was a prolific poster.

In that case, as in Tranter, context and target were critical. Fitzgerald J made the following observations:

[150] It is plain in my view that Ms Gee had standing to make an application. It is correct that the content to which Ms Hooper was responding was posted by Ms Gee on the Magnolia Kitchen corporate Instagram account. It is also true that some of Ms Hooper’s posts concerned Magnolia Kitchen more generally. It is equally true that the purpose of much of this posting by Ms Gee was to promote the Magnolia Kitchen business. However, it would be entirely artificial to suggest that Ms Hooper’s posts did not also concern and critique Ms Gee personally, rather than the Magnolia Kitchen corporate entity.

[151] Ms Hooper’s own evidence (referred to at the outset of this judgment) of seeing the need to “take on” Ms Gee (or “this woman”) makes that abundantly clear. So too does her evidence that Ms Gee’s initial posts during lockdown “alerted me to this woman, and her constant unwavering crude responses to people asking very reasonable questions” (emphasis added). The content of Ms Hooper’s posts is also consistent with Ms Gee having standing. For example, the posts are replete with images (including zoomed close-ups) of Ms Gee. They are also replete with commentary suggesting certain attributes in relation to Ms Gee personally, including that she is a psychopath; commenting on Ms Gee’s post about cutting her own fringe; commenting on Ms Gee’s hospital visit; a post showing a zoomed in image of Ms Gee’s face stating “or just stop being evil”; comments that Ms Gee is feeding her young children alcohol; a range of comments suggesting that Ms Gee is abusing her children (together with the associated complaint to Oranga Tamariki); that Ms Gee is a narcissist; that Ms Gee is a “righteous asshole” (for approaching the media about online bullying); referring in posts to “Bernadette” and “Bets”; commenting on what Ms Hooper considers to be Ms Gee’s “deranged sense of self-importance” and use of her platform “to exploit her children and now, feed her ravenous ego”; posts that “these people” (being a reference to Ms Gee and her husband) are still exploiting their children; and references to “Dear friend Magnolia Kitchen, crying, blubbering away” following the second Oranga Tamariki investigation. These are not qualities that can be attributed to a company. It is also plain that posts made by other Instagram users, including Ms Hooper’s followers, were clearly targeting Ms Gee personally, rather than Magnolia Kitchen as a corporate entity.

Therefore in Tucker the judge noted that Pere was the natural target for the emotional outrage and outpouring that followed the posts and there was a solid foundation for asserting a causal connection between the posts and the serious emotional harm Pere suffered.

The judge determined that Pere was an individual with standing to bring the proceeding.

It does not automatically follow that the proprietor of a business or a company will ipso facto have standing to bring proceedings for an HDCA order.

Much will depend upon the circumstances of each case and especially the way in which the communications are targeted and framed. If the comments contain elements of individualisation, it is likely that a causal link might be made and more especially so in the case of a small single-proprietor business rather than a large corporate entity.

Care must be taken in considering whether an HDCA order should be sought by a proprietor of the business that the communications are carefully parsed to ensure that there is sufficient meaning to bring the communications within the requirements for standing.

 

Freedom of expression and the public interest

Tucker’s argument was that he was expressing genuine concerns about the welfare of animals at the facility and had no malicious intent. He contended that petitions are an integral part of how community groups campaign for change.

Freedom of expression: The judge acknowledged the significance of Tucker’s right to freedom of expression, particularly in the context of raising public interest concerns about animal welfare.

Public interest and motive: The judge accepted that Tucker’s motive was to address animal cruelty and that there was a level of public interest in his campaign. ​However, the judge noted that Tucker’s purpose was to use digital communications to hold Metro Paws personnel accountable, irrespective of the uncontrollable consequences of that dissemination. ​

Assessment of harm: The judge found that the posts caused serious emotional distress to Pere, including fear for her safety, anxiety and significant physical consequences. The judge emphasised that the harm was not just from the content of the posts but also from the reaction they elicited from others. ​

Proportionality and justification: The judge determined that the constraints Pere sought were reasonable and demonstrably justified, given the harm she would otherwise suffer. The judge noted that while Tucker’s posts had a public interest component, they became disproportionate and caused undue harm to Pere.

Effectiveness of attempts to minimise harm: The judge acknowledged Tucker’s attempts to minimise harm by redacting names and urging appropriate behaviour. ​However, these attempts were not effective in preventing the abusive and threatening messages directed at Pere.

Appropriateness of orders: The judge concluded that the orders made by the District Court, which included taking down the posts, refraining from similar future communications and not encouraging others to engage in similar communications, were appropriate and did not overreach. The judge found the orders were consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act. ​She determined that the limitation on Tucker’s freedom of expression was reasonable and justified in light of the harm caused to Pere.

Communicating in the digital paradigm

The judge’s comments about the nature of communication in the digital paradigm are interesting. She noted that Tucker’s purpose was to use digital communications and the vast reach of Facebook to hold Metro Paws people to account, based on his expectations.

However, the problem was greater than that because once the posts were released into the digital space, there was – as the judge put it – an “uncontrollable consequence of that dissemination and the effect of its content”.

In addition, the platform Tucker used provided a platform for others to make serious and offensive allegations which he then posted on his website in an anonymised way, making it fraught for Pere to try to respond.

This in turn led to a torrent of unacceptable abuse directed at Pere and with little or no ability for her to defend herself.

If we move from this particular case to certain theoretical aspects of communications in the digital space, we find several elements that were not present or developed from elements that existed in the kinetic or analogue space.

I have discussed these in detail in my book Collisions in the Digital Paradigm – Law and Rulemaking in the Internet Age but they can be briefly classified and summarised as follows under the following heads:

Environmental factors: These arise from the context in which digital technologies develop and include continuing disruptive change and permissionless innovation.

Technical factors: These include the linearisation of information, information persistence or endurance, the dynamic nature of information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence.

User-associated factors: These are the final factors and include the availability, searchability and retrievability of information and, importantly, participation and interactivity. These factors all impact upon information; they have little to do with the content but, rather, relate to the medium or media of communication. They are recognised by the HDCA itself which in some respects is an example of internet exceptionalism.

Communications that are impolite or offensive may not be the subject of any legal interference in the “kinetic” space. An insult may cause serious emotional distress but is not actionable. But it becomes so if the communication is made electronically if it can fulfil the requirements of the HDCA and pass the threshold test in s 12.

The HDCA folds the technological elements – especially those of information persistence and exponential dissemination – into the nature of content as set out in the communication principles which in my opinion are the guidelines for polite conversation.I have embarked upon this discussion because it reflects upon the remarks of Anderson J about whether a communication may be protected by freedom of expression.

The way I read it, a NZBORA analysis under the HDCA may well incorporate a form of platform analysis.

For example, the provision of a platform involves an analysis of how that platform works. Most platforms now have an element of exponential dissemination and once the information is “out there” – although it may be removed from the source – it may have been shared via a number of other social media platforms well beyond the control of the first poster.

Flowing from this is another question – perhaps one that I will have to answer some other time – and that is whether or not NZBORA analysis of digital material posted on the internet will become subject to a form of “internet exceptionalist” approach.

 

Conclusion

Tucker v Pere is a helpful addition to the developing case law on the HDCA because it further assists in assessing standing when a post ostensibly targeting a business, company or indeed a group may extend to apply to an individual who may, if able to satisfy the threshold requirements, bring an application for s 19 orders.

Perhaps the most significant element arising from the scope of this case note is the way the NZBORA analysis is approached.

Is a platform analysis necessary? Should there be an “internet exceptionalist” approach to an NZBORA analysis that may limit the freedom of expression based on the nature of the medium used?

Or should the issue of the application of NZBORA be judged upon the communication and its effect? After all, this is the focus of the HDCA which already brings a level of internet exceptionalism to the table.

 

Read Tucker v Pere here

 

David Harvey is a retired District Court Judge, a member of The Law Association’s Public and Administrative Law committee and a member of Sangro Chambers