‘Unfortunate' gagging order against Chinese journalist lifted
Portia Mao (left) and Morgan Xiao
Photo:
Supplied
A District Court judge has lifted a gagging order that had been imposed on a Chinese-New Zealand journalist for almost a year over claims of online bullying.
In July last year, the Auckland District Court ordered freelance journalist Peng (Portia) Mao to take down articles she posted online about Auckland Transport traffic warden Zhihong (Morgan) Xiao and publish an apology.
Discharging the interim order on 11 June, Manukau District Court Judge Richard McIlraith said Mao had no opportunity to defend herself in court at the time the orders were made.
Portia Mao
Photo:
Supplied
Mao is a veteran journalist who covers China-related issues in New Zealand as well as other subjects.
In addition to working with Auckland Transport, Xiao is a former local body candidate and frequent commentator on social media about China-New Zealand matters, among other things.
Xiao, who uses the handle "demon king" on social media, initiated court proceedings in July 2024 by filing a complaint under the Harmful Digital Communications Act 2015 about two stories Mao had written.
He claimed Mao's comments were defamatory, hurting his dignity and causing him to suffer "mental pressure".
The first article involved, published in October 2019, questioned whether Xiao had lived in New Zealand for 15 years as he had claimed, further suggesting he had been "fired by his boss".
Xiao claimed the material was "defamatory and untrue" in his original application to the court.
He also claimed Mao had called him "worse than dog" in a separate article that was published in July last year in relation to an assault that had occurred on an East Auckland bus as well as a subsequent social media post on WeChat.
Xiao's 2024 complaint was processed by the court without notifying Mao, as the former political candidate had submitted his application "without notice".
Such applications are typically made under urgency, including claims of ongoing serious emotional distress.
The court supported Xiao's application and ordered Mao to take down the relevant articles and all material on WeChat referring to the complainant as a "dog" and publish an apology.
Mao challenged the ruling after learning of Xiao's "win" in court on social media.
Morgan Xiao
Photo:
Supplied
In September, the court clarified that its orders had been made on an interim basis and Mao could file a notice to be heard or submit an application to change or remove the orders, which she did.
After reviewing evidence provided by both parties, McIlraith ruled that Xiao's application should not have been filed "without notice", noting that he "provided very little of the relevant context to his complaint".
Mao's lawyer, Callum Fredric, claimed Xiao "deliberately (or otherwise) provided an incorrect email address [for Mao]", resulting in the journalist never being notified of Xiao's application.
Defending her 2019 article, Mao said she produced the story about Xiao standing as a candidate in local body elections in the public interest.
She attempted to contact Xiao for an interview, but her requests were rejected, Mao contended.
Judge McIlraith noted that Xiao had denied Mao's claims about his length of time in New Zealand and workplace dismissal on social media but provided no evidence on this at the hearing.
As a result, Mao was cleared of making a false allegation.
In relation to the 2024 article and related social media post, Judge McIlraith discussed the context of the "dog" accusation.
The ruling noted that Xiao published a series of articles attacking a Stuff documentary titled
The Long Game
, which Mao worked on as a researcher.
Mao was asked in a WeChat group of around 500 members to answer some questions that had been asked by Xiao, including what Mao and others did in the documentary and how much they had been paid.
It was in this reply that Mao referred to Xiao as "only worthy of being a dog", the court ruling said.
Mao claimed the expression was a metaphor for Xiao's behaviour, implying that he was a "running dog", or propogandist, for the Chinese Communist Party in attacking the documentary.
"However, an assessment must take into account Mr Xiao's circumstances given his highly active role in debate at the time about
The Long Game
," Judge McIlraith said. "This cannot have been unexpected criticism."
The judge ruled that no independent evidence of harm being caused to Xiao in respect of any of the articles about which he complained had been submitted.
"As such ... Ms Mao must succeed in her application to have the orders previously made discharged," McIlraith said.
In his submission to the court, Mao's lawyer claimed Xiao had weaponised the Harmful Digital Communications Act to silence a journalist, as Xiao had celebrated his victory on social media without Mao knowing an application had been filed.
"What has occurred here has been unfortunate," McIlraith said.
"This case has demonstrated the danger of 'without notice' applications being made under this act and the regrettable delay in a defendant having the opportunity to be heard."
Mao told RNZ she was "genuinely pleased with the outcome of this case".
"The judge's decision is profoundly significant," she said. "It will have a lasting impact on value choices within the Chinese community in New Zealand.
"The court's decision has strengthened my belief that the winds of freedom will forever blow across New Zealand."
Xiao said that his lawsuit was "originally a very simple case - a 'dog' insult was made".
He had asked for an apology, but the case had been "seriously politicised".
Xiao said he could either appeal the judgment in the high court or reconcile with people who held different political opinions.
"After all, we all just cared about the same New Zealand and I'm a liberal," Xiao said. "But this path is not entirely up to me; it also depends on them. And, of course, I hope it's the latter."
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