New Zealand's internet safety agencies took aggressive legal action against the Human Rights Commission, after it called out social media giants for failing to protect former Prime Minister Dame Jacinda Ardern from vicious online abuse.
Documents leaked to RNZ show that in October 2023 Paul Hunt - Chief Human Rights Commissioner at the time - wrote to NZ Tech chief executive Graeme Muller, saying X and Meta had left Ardern exposed to hatred and violence.
The Human Rights Commission (HRC) was also highly critical of New Zealand's new online safety code, saying it was not fit for purpose, the documents show.
In response, a barrister acting for Netsafe and NZ Tech hit back at the HRC chief, saying his advisors were biased; that he was acting unlawfully; and threatening to call in the Auditor General and Public Service Commission.
Among the documents obtained by RNZ is a letter Hunt sent to NZ Tech, saying that over 48 hours in September 2023, an X user with more than 400,000 followers made a series of vile and abusive posts harassing Ardern.
"His targeted harassment is gendered, includes explicit and implicit references to sexual assault and rape and, as a harassment campaign led by a high-profile influencer, meets the description of technology-facilitated gender-based violence," Hunt wrote. "The replies and re-posts are typified by violence, misogyny, and hate."
Hunt said the HRC reviewed 500 comments on one post and found dehumanising abuse such as "dog, pest, pig … rodent, vile, bitch and witch" and sexualised attacks including "whore, slag, hag and prostitute".
Hunt's letter said death threats were also made including "this horse needs to go to the vet and get put down".
Hunt also told NZ Tech that the timing was significant.
"New Zealand is in the middle of an election campaign, and the targeted harassment of a former Prime Minister who resigned earlier this year is also key context for responsible platforms."
Hunt said that "neither X nor Facebook responded with adequate speed and efficacy" to the material posted about Ardern and were "prima facie in breach of their human rights responsibilities".
Hunt said X and Meta had also breached the online safety code they signed up to in New Zealand.
The Code of Practice for Online Safety and Harms was launched in 2022 by Netsafe and NZTech and signed by tech firms Meta, Google, TikTok, Twitch and X.
NZ Tech is the administrator of the code and Netsafe is the government-appointed agency which investigates complaints about online harm under the Harmful Digital Communications Act.
In response the two agencies hired barrister Anna Adams, who hit back hard at the HRC.
"The commission's actions in sending the letters appears unreasonable, unlawful, and outside its statutory functions as a Crown entity."
Adams said NZTech and Netsafe hoped the dispute could be resolved. "If not, then NZTech and Netsafe reserve their rights to raise a serious complaint with the Ombudsman, Auditor-General and Public Service Commission."
Adams told Hunt there had been no complaints lodged under the code about X (formerly Twitter) and Meta. "There could have been complaints about the particular online content against Dame Jacinda Ardern on Twitter and Facebook, but these complaints are outside the code and would have had to be lodged directly with Twitter / X and Facebook."
In her November 2023 letter to Hunt she said NZTech and Netsafe were "gravely concerned" the commission's findings were "unlawful in public law and fall below the standards and values of the public service".
She said the HRC's findings could impact on NZTech and Netsafe's relationships with social media companies who had signed the code and also with government agencies.
"NZTech and Netsafe's position is that the commission's findings in the letters have been arrived at unlawfully, being tainted by bias and predetermination."
The HRC had set up an Independent Accountability Group (IAG) to review the code of practice for online safety, signed by Meta (Facebook and Instagram), Google (YouTube), Tik Tok, Twitch, and Twitter in 2022.
The IAG was critical of the code, saying it did not reflect the "the unique historical, demographic, economic, social, cultural, environmental and legal context" of New Zealand.
But Adams - acting for Netsafe and NZ Tech - said IAG was biased and had predetermined the issues.
Adams said two members of the IAG, Gareth Jones and Anjum Rahman, belonged to the Inclusive Aotearoa Collective Tahono, an organisation she said had publicly campaigned against the code.
"There is no sense in which Gareth Jones and Anjum Rahman can avoid the impermissible appearance of bias when formulating findings on behalf of the Human Rights Commission about the Code, and being signatories to those findings."
She said the HRC "appears to have allowed itself to be captured by a group of outsiders - the IAG - with an agenda to fix the Code".
Hunt rejected that, saying the group were independent experts who wanted to improve online safety.
Hunt also told Netsafe and NZ Tech that he was concerned about the implications of the legal letters.
"IAG members depend upon Netsafe to protect them from online harm. You act for Netsafe. I have to tell you that the tone of your letter discourages some IAG members from going to Netsafe for the protection to which they are entitled."
Anjum Rahman told RNZ she felt personally attacked by the legal letters from Netsafe and NZ Tech. "It felt pretty awful to be on the receiving end of those," she said. "To take this legal approach meant that they weren't dealing with the issues."
Rahman said she had critiqued the code from the perspective of a community which suffered disproportionate online harm but that did not make her biased.
She said the lack of action over the abuse of Ardern showed the code the tech giants signed up to was not working. "That was just one example that we took, but there are many, many other examples that we could have taken to say this is why we see the code is not working, and we would like you to address it."
Netsafe chief executive Brent Carey defended the legal approach, saying it wanted to "constructively engage" with the HRC and establish its powers and limits.
Carey said online abuse of public figures, especially women, was a serious issue and social media platforms needed to do more to protect them but Netsafe only had a limited role.
"We don't have any complaints-power under the code, or any ability to add an own motion investigation into matters, we can't act unilaterally. So Netsafe's role in this is quite limited."
Carey said the abuse against Ardern could have led to action under the Harmful Digital Communications Act but Netsafe worked in confidence with complainants. "We don't confirm nor deny we've got a complaint."
NZ Tech chief executive Graeme Muller said he'd had constructive meetings with the HRC about the code but the mood changed when Hunt wrote to him with accusations about breaching the code and human rights.
"When the letters started coming, it suddenly felt very legal, and so we thought it was advisable to get some legal advice," he said. "Once the lawyers start picking up and have a lawyer to lawyer conversation for normal people like you and me, sometimes it can look different than the reality, right?"
He said the abuse that Ardern suffered online was "absolutely horrible", but NZ Tech was only the administrator of the code and could not intervene.
"We can agree that something should be done about it. And there are online processes for people who don't like what's happening to go to X or Meta, or whichever one of the platforms this is happening on, but I don't know if someone did that or not. We're not privy to that. We don't represent them."
If people felt social media companies had not responded to their concerns they could complain under the code. "We can't surf around the internet looking for things in history and then put our own complaints into the process. We're literally the administrator."
In an interview with RNZ, Hunt said he had been hoping for a discussion about the human rights implications of the code, not an aggressive legal response.
"I was disappointed. New Zealand is a mature democracy, and those wielding power in Aotearoa should behave democratically."
