Internet regulator Netsafe has declined to pursue a complaint by entrepreneur Sir Ray Avery that Newsroom stories about him amounted to digital harm and harassment.

The publicly-funded agency, which is charged with mediating complaints of online bullying and harassment under the Harmful Digital Communications Act, told Newsroom today: “This complaint has now been closed at Netsafe.”

It said the law was “not clear about how to treat HDC complaints as they apply to media, and there is limited case law from which to form our advice.

“Therefore we are not recommending you take any further action. We have recommended to Sir Ray Avery that if he wishes to pursue this complaint he has the option of applying to the District Court.” 

It was one of the first examples of someone using the law to try to suppress coverage in the news media.

Netsafe passed the Avery complaint to Newsroom for our response more than a week ago. The complaint said he had been severely emotionally distressed by five of the 14 Newsroom stories over the past month about his LifePod baby incubator fundraising, his previous products and his background and promises.

Netsafe said Avery believed Newsroom stories included false claims – and wanted us to consider removing the articles and to refrain from reporting on him again. This website in turn asked Netsafe to establish precisely what alleged falsehoods he was basing his complaint on. 

Newsroom‘s in-depth investigation established that none of the three ‘inventions’ or products highlighted on Avery’s Medicine Mondiale website were in commercial production, the LifePod did not have international standards certification and clinical trials said to be happening in India could not be independently verified by Newsroom. Avery told Newsroom on tape that the Lifepod’s $4 million fundraising promise to help save ‘a million babies’ was a marketing number. Former collaborators and colleagues raised concerns about promises and practices.

The use of the digital harm law – which was targeted by Parliament at revenge porn, harassment and social media abuse – to attempt to suppress public interest journalism has been widely questioned and criticised. MPs, including the Prime Minister Jacinda Ardern, said they did not believe that was what Parliament had in mind when it passed the law, and that if the Act was used to stop news stories that would be of serious concern.

Former New Zealand Herald editor-in-chief Gavin Ellis welcomed Netsafe’s withdrawal from the complaint process.  

“Netsafe has made the right decision. If it had accepted Sir Ray Avery’s complaint it would have been venturing into territory it is not equipped to navigate – the role of the media in a free and open society. Sir Ray would be ill-advised to now take a complaint under the HDCA to the district court. To do so would be against the intent of the Act and, I hope, the District Court would tell him so.”

Netsafe’s email to Newsroom ending its involvement said if Avery chose to go to the district court he would be “required to provide the court with information to support his claims which would then be made available to you”.

“Please note that the district court process and decision-making is completely separate from Netsafe. Information is not passed from Netsafe to the court other than a confirmation that the complainant has been processed by Netsafe.”

Avery has previously made it clear that he intended to take the matter to the district court.

Newsroom’s full coverage of Avery and his products and promises is:

Can Ray Avery turn promises into reality?

Newsroom inquiry – the main points

Legal threat to suppress clinical study

A cheerleading media

Who is Sir Ray Avery?

LifePod delays disappoint schools

Sam Morgan details dealings with Ray Avery

Millionaire funder still backs Ray Avery

Ray, Whaleoil and exposing an expose

Another delay for Sir Ray

The $11m health watch that wasn’t

FMA questions for Ray Avery company

Avery targets Newsroom, citing ‘digital harm’

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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