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Cite as: Name Suppression Orders and Web 20 Media: the New Zealand Experience , Barrett , European Journal of Law and Technology

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Name Suppression Orders and Web 2.0 Media: the New Zealand Experience

Jonathan Barrett [1]

Cite as: Barrett, J., ‘Name Suppression Orders and Web 2.0 Media: the New Zealand Experience’, European Journal for Law and Technology, Vol. 3, No. 1, 2012

Abstract

This commentary discusses the impact of Web 2.0 media on name suppression orders in New Zealand criminal trials. Specific consideration is given to offenders who are well known as they are most likely to attract the attention of bloggers.

1. Introduction

Less than four and a half million New Zealanders inhabit a land mass greater than the United Kingdom with only one metropolitan centre whose population exceeds one million (Tourism New Zealand, 2011). Most New Zealanders are regular Internet users and a vibrant blogging culture has developed. [2] Consequently, people accused of crimes that attract significant public interest or opprobrium may be easily identifiable within their professional and local communities. As Mount (2006, p.439) observes, 'New Zealand is a small community, and reputations are quickly made and even more quickly destroyed'. Despite exceptions to the common law principle of open justice being statutorily restricted, name suppression in criminal proceedings appears common in New Zealand, although media reporting of high profile cases may distort perceptions of actual practice. Nevertheless, a perception that celebrities, in particular, disproportionately benefit from the privilege of name suppression is widely enough held for the Criminal Procedure Act 2011 ('CPA 2011') to specifically provide that being well known should not constitute an adequate ground for name suppression.

The possibility of a name suppression order ('NSO') being breached is not a recent development (Chesterman, 1997, p.142; NZLC, 2008, para.[3.50]) but the availability of Web 2.0 or new media, particularly blogging tools, has ‘impacted considerably on suppression orders’ (Burrows and Cheer, 2010, p.466). Indeed, in the recent Whale Oil case, a prominent blogger became the first person in New Zealand to be convicted of breaching NSOs using Web 2.0 media. [3] This commentary considers New Zealand's experience of Web 2.0 media and NSOs in criminal trials. First, relevant principles and specific statutory provisions are sketched. [4] Second, the impact of the Internet on NSOs is considered, with particular reference to offenders who are well known. Third, the Whale Oil case is discussed. Fourth, recent statutory developments are outlined. Fifth, the role of NSOs in a context of Web 2.0 media is critically discussed, with particular emphasis on the expectations of freedom of expression and a right to fair trial.

2. Principles and Specific Provisions

2.1 Fundamental Rights and Freedoms

The New Zealand Bill of Rights Act 1990 ('NZBORA 1990') is a non-entrenched, non-exhaustive code of freedoms and rights that may be explicitly ousted by ordinary legislation (NZBORA 1990, s.4.). Nevertheless, consistent interpretation of statutes is preferred (NZBORA 1990, s.6), and the courts are required to develop the common law in accordance with the freedoms and rights affirmed (NZBORA 1990, s.3(a)). The rights and freedoms recorded in NZBORA 1990 are neither hierarchical, nor absolute (NZBORA 1990, s.5), and so must be balanced with each other and the provisions of the wider law. [5] The provisions of NZBORA 1990 most relevant to this commentary are the rights 'to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form' (NZBORA 1990, s.14) and 'to a fair and public hearing by an independent and impartial court' (NZBORA 1990, s.25(a)).

2.2 Open Justice and Freedom of Expression

It is axiomatic that, in criminal trials, where the liberty of the defendant is at stake, open justice requires public access and reporting, which is expected to be 'fair and accurate' (NZLC, 2008, para. [1.2]). [6] (Contempt of court in New Zealand is mainly common law and there is no specific Contempt of Court Act.) Linking the common law with NZBORA 1990, certain decisions have referred to the right to freedom of expression in relation to open justice; [7] however 'open justice is a distinct consideration ... primarily concerned with the sound functioning of the judicial process in the public interest, whereas freedom of speech is more concerned with the free flow of information'. [8] While the broad principle holds that justice should be administered in public, 'this principle is subject to apparent exceptions ... But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done'. [9] Consequently, secrecy is only justified if it is shown 'that the paramount object of securing that justice is done would really be doubtful if attainment of the order were not made'. [10] It may therefore be claimed that, in a curial context, 'a fair trial trumps all'. [11]

2.3 Specific legislation

At the time of writing, the Criminal Procedure Act 2011 ('CPA 2011') has received Royal assent but is not yet in force. CPA 2011 repeals the Criminal Justice Act 1985 ('CJA 1985'). However, since the cases cited in this commentary mostly relate to CJA 1985, discussion of that Act remains pertinent. In a criminal trial, a court may make a temporary or permanent order: [12]

prohibiting the publication, in any report or account relating to any proceedings in respect of an offence, of the name, address, or occupation of the person accused or convicted of the offence, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification (CJA 1985, s.140(1) and (2)).

Anyone who breaches an NSO 'or evades or attempts to evade any such order' commits an offence and is liable on summary conviction to a fine not exceeding $1,000 (somewhat less than £500) (CJA 1985, s.140(5)), a penalty which is generally considered 'underwhelming' (Akel et al, 2008, p.20). The offence is one of strict but not absolute liability (Burrows and Cheer, 2010, p.462).

CJA 1985, s.140 grants a court an ostensibly unfettered discretion, [13] however 'the prima facie presumption as to reporting is always in favour of openness' because 'the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly and accurately'. [14] An applicant for an NSO must prove 'compelling reasons' or 'very special circumstances'. [15] Damage which is 'out of the ordinary and disproportionate to the public interest' must be present, since criminal proceedings typically distress, embarrass and cause other adverse personal consequences. [16] Generally, circumstances must be 'other than the normal kind of consequences that flow from being accused of serious offending'. [17]

Unlike the New Zealand Law Commission ('NZLC'), which has proposed statutory guidelines (see NZLC, 2009, para.[R3]), the courts require each name suppression application to be decided on its own facts and have avoided statements of criteria. Despite this ad hoc approach, factors relevant to an application being approved may be discerned, including: triviality of a charge, [18] the right to a fair trial, rights of a victim with the same name as the accused, age or mental stability of the offender, prospects of rehabilitation, presumption of innocence and recognition of human dignity in the right to privacy (Akel et al, 2008, pp.16-17). Factors against name suppression include: the possibility of discovering further offending, the media’s right to freedom of expression and the public’s right to receive information, and public interest in knowing the character of the person seeking suppression (Akel et al, 2008, pp.16-17). Factors generally considered irrelevant or non decisive include: anguish or embarrassment (particularly after conviction), [19] lack of previous convictions or acceptance of responsibility, the health of an applicant’s family, and the weight of the applicant’s surname or their standing in the community so that more adverse publicity might be attracted (Akel et al, 2008, pp.16-17).

CJA 1985 s.140 does not distinguish between different stages of the prosecution process. Nevertheless, the courts may approach name suppression differently at the time of: (1) arrest; [20] (2) diversion; [21] (3) before and during the trial; and (4) post-trial. Before the verdict, the presumption of innocence is a 'significant factor to be weighed in the balance of the principles which favour open reporting', [22] but is not enough in itself to justify suppression. [23] Displacing the presumption of openness is a much less onerous task than when the applicant has been convicted, [24] particularly since name publication is also recognised as a punitive or deterrent measure. [25] Although the public has a legitimate interest in acquittals, a court is more likely to prohibit publication in the event of an acquittal. [26] Name suppression is, then, unusual in the event of conviction for serious crimes, particularly sexual offences. [27] In sum, it should be 'exceptional' if an NSO applies during a trial and 'startling' if retained after conviction. [28] However, similar to Australian experience (see Kenyon, 2006, pp.280-281), it seems that, notwithstanding principled guidance at an appellate level, lower courts in New Zealand are prepared to entertain name suppression applications far too easily for the media's liking (NZLC, 2008, para [1.8]).

2.4 Suppressing Well Known Names

Certain sections of the media argue that NSOs are granted more readily to those well known than to those without a public profile (NZLC, 2008, para.[3.37]), but this contention is not necessarily supported by case law. Indeed, the High Court has rejected the argument that publication of the name of an applicant for an NSO, whose family is well known, would have a greater impact on her than other accused persons, because it would create a distinction, 'wrong in principle or justice', [29] that persons of particular interest to the media should have pre-trial suppression but those who are unknown should not enjoy the same benefit. Naturally, when people in the public eye are involved in the criminal process, they attract greater publicity than other people. Consequently, since questions of hardship are more likely to arise when a well known person is accused of a crime, NZLC (2008, para.[3.37] concluded that 'if undue hardship is a relevant factor, the person’s status and reputation and the publicity that may result from that is relevant to a determination of whether such hardship is likely to arise'. Nevertheless, NZLC (2009, para.[3.51]) recommended that being well known 'should not be listed as a separate factor [for the courts to take into account] as there is a risk that this may create a special class'.

2.5 Futility and the Internet

Generally, if the identity of a person appearing before a court is already in the public domain, it will not be appropriate to grant an NSO. [30] The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute; indeed, justice 'certainly should appear blind, but it should not appear stupid'. [31] In a case involving accusations of sexual abuse against senior policemen that generated highly emotional public reactions, [32] the Court of Appeal appears to have tacitly recognised the futility of continuing with an NSO after victims’ supporters distributed leaflets outside the court identifying certain co-accused, who were serving sentences for rape (Akel et al, 2008, p.18). [33] NZLC (2008, para.[3.50]) noted that the futility of NSOs is particularly relevant to well-known people but also that, even if an NSO 'may not prevent the spread of knowledge, suppression orders always have some effect in limiting it'.

'In terms of risk to a fair trial, the potential impact of the Internet on criminal proceedings therefore depends on the likely conduct of jurors. If information is available on the Internet but jurors do not conduct their own investigations, there is no greater risk of prejudice than with traditional media reports.' (NZLC (2008, para.[8.15]) [34]

There is 'no simple and fool-proof way for a trial judge to address the availability on the internet of prejudicial material about the defendant', [35] but an interim NSO may reduce the risk. If an NSO seeks to maintain a person's anonymity after a verdict has been handed down, the potential for the order being undermined by dissemination of information on the Internet is real. In the Cyber memory case, [36] Justice Harvey permitted contemporaneous broadcasts of the trial but not accounts that could be stored and retrieved from the Internet. However, within 24 hours of the initial ruling, an online search for the suppressed name returned 95 results (NZLC, 2008, para.[8.22]). [37]

Burrows and Cheer (2010, pp.469-470) summarise the courts' approach to NSOs and the Internet as follows: (1) to avoid futility, an accused person's name being widely known in connection with the matter at the time an NSO is considered may constitute good grounds for declining the application; (2) a person in New Zealand, who leaks a name to an overseas publication, would breach an NSO; (3) a suppressed name appearing on an overseas website will not usually be grounds for revoking an order; [38] and (4) leading people to an overseas website might constitute an attempt to evade an order, [39] and the operators of the overseas website may commit a crime against New Zealand law. [40]

3. Whale Oil

Cameron Slater runs the successful blog under the elidible masthead Whale Oil Beef Hooked, [41] whose discourse is robust and populist. Opposing name suppression for accused persons whom Slater considered unworthy of such protection became one of Slater’s causes. However, despite his statement 'I don’t agree with name suppression laws and am running a campaign to have them changed', [42] and evidence that he intended to conduct 'electronic civil disobedience' by identifying certain persons subject to NSOs, in practice, indirect means of disclosure were used. [43] These methods included recording names in binary code, pictograms, links to online newspaper articles containing 'clues', and 'dog whistle' phrases, notably, the recurring use of the by-line 'Interesting Names', which, to regular readers would indicate a suppressed name.[44] Eventually, Slater was charged with breaching ten NSOs.

Slater’s defence arguments, some of which manifested creativity rather than plausibility, [45] were given full consideration by Justice Harvey but dismissed. As noted, CJA 1985, s.140 is a strict liability offence and 'Few excuses will be accepted for a breach of a suppression order' (Burrows and Cheer, 2010, 461). Although the Whale Oil blog servers were located in Texas, following Australian precedent, [46] it was held that publication was made in New Zealand where the information was received and comprehended. [47] Since the wording of CJA 1985, ss.138-141 appears to contemplate the functions and expectations of traditional media, and was enacted before the emergence of Web 2.0 media, the defence argued that the phrase 'report or account' should be limited to the outputs of traditional media. [48] However, the courts have given the phrase 'a liberal interpretation in keeping with the spirit of s 140' (Burrows and Cheer, 2010, 463) and the judge observed that CJA 1985 'is more aimed towards the wider dissemination of information by means of mass communication media', and saw blogs simply as a means of publication. [49] Finally, the disclosures were claimed to fall short of publishing the prohibited details and it was argued that 'in the case of the pictograms and binary code, publication was not in a language that was official ... and therefore was not properly comprehensible'. [50] (English is New Zealand’s de facto official language, whereas Maori and New Zealand Sign Language are statutory official languages.) Justice Harvey responded:

‘It was still a form of publication that was capable of being understood ... The fact that it may need some intermediate steps such as translation be it from binary or by phonetically interpreting a pictogram matters little. ‘ [51]

In a generally well received decision, [52] Slater was convicted on nine of the ten charges he faced and fined $750 plus $130 court costs for each of the convictions, a punishment he described as having 'copped a flogging as best they can with a wet bus ticket' (Francis, 2010). [53] The High Court subsequently dismissed Slater’s appeal against his convictions and sentences, [54] and further refused leave to appeal to the Court of Appeal. [55]

4. Other Developments

In early 2011, a 46 year old 'household name', charged with disorderly conduct, was granted an NSO. Several celebrities were speculatively 'out-ed' (Robinson, 2011), and certain clues were published without breaching the terms of the order. Wikipedia became the focus of attention as the person’s entry became updated in breach of the NSO, then rectified (Hurley, 2011). When the interim NSO required renewal, a little known sports presenter revealed his own identity and plausibly denied that he might be considered a 'household name' (Newton, 2011). This episode brought public attention to relevant provisions of the Criminal Procedure (Reform and Modernisation) Bill 2010 ('the Bill'), which might otherwise have remained obscure. [56]

The Bill was an omnibus reform and modernisation initiative that, generally following the recommendations of NZLC (2009), included measures to clarify and strengthen the law relating to the suppression of names and evidence in criminal proceedings. [57] These measures have been enacted as CPA 2011, ss.194-211. The starting point for considering an NSO is an explicit statement of the principle of open justice. [58] A range of interests that may justify suppression, including the risk of prejudice to a fair trial, is then identified. [59] Broadly, publication must be likely to cause extreme hardship to a defendant or undue hardship to a victim or witness. The fact that a defendant is well known does not, of itself, constitute extreme hardship. [60] Conviction for breach of an NSO creates a liability for up to six months imprisonment, if committed by an individual, and a fine of up to $100,000, if committed by a body corporate. [61] The term 'publish' is not directly defined. However, it was clear from supporting materials that, under the Bill, an ISP storing material in breach of an NSO would have been considered a publisher, [62] and would have committed an offence if it knew or had reason to believe 'that the material breaches the relevant suppression order or provision', and 'does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it'. [63]

Understood, particularly in the context of the protracted introduction of ISP responsibilities for illegal downloading, InternetNZ (2011) argued that the Bill repeated the defects of the Copyright Act 1994 and could be futile. [64] On the one hand, an unreasonable burden would be placed on domestic ISPs, and, on the other hand, the measure would do nothing to prevent publication by foreign ISPs. The Telecommunications Carriers’ Forum argued: ISPs would have no knowledge or control of the material published using their services; and the risk and cost to New Zealand ISPs, as innocent third parties forced to undertake a quasi-regulatory role, ought to be balanced against the likely futility of suppressing information on a global Internet (TCF, 2011). Furthermore, there were no other similar ISP targeted regimes elsewhere, and so the proposal was novel and untested. [65] Besides, there was no evidence that such an imposition on New Zealand ISPs is required given historical co-operation with legitimate law enforcement activities. In the event, the relevant provisions of the Bill were not enacted and CPA 2011, s. 211(3) provides that the offence of publishing contrary to an NSO does not apply to an ISP unless 'the specific information has been placed or entered on the site or system by' the ISP.

The claim by the Minister of Justice, Simon Power, that 'It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards' (Power, 2010), seems implausible, at least, in relation to NSOs. After all, Slater was successfully prosecuted, and, under the CPA 2011 would face serious penal consequences if he continued his campaign. [66] Nevertheless, Power (2010) has charged the NZLC with investigating 'whether either of the two existing industry watchdogs - the Broadcasting Standards Authority and the Press Council - could provide a suitable vehicle for regulating unregulated forms of new media'. The NZLC published an issues paper in December 2011 and is expected to publish a final report and recommendations to government in late 2012.

5. Discussion

'The internet allows everyone to be a publisher. Anyone who has an opinion can post it on the internet', [67] but, 'if one wishes to take advantage of that opportunity one must necessarily be prepared to fall within the responsibilities that accompany it'. [68] On the one hand, in the Whale Oil case, Justice Harvey considered blogs to be simply another form of mass communication, [69] but, on the other hand, he stressed the 'interactivity that distinguishes blogs from other static websites and this is an important part of many blogs,' [70] and further noted that a feature 'that differentiates a blog from say, a newspaper, is that a blog occupies a continuum of comment where a particular posting or item may start on one day but may continue and develop over a period of time'. [71] This logic appears to put new media, which are denied certain privileges of traditional media, [72] in a relatively disadvantageous position.

Freedom of speech on the Internet can attract a quasi-religious fervour (Wertheim, 1997, p.296) particularly among Web 2.0 media actors. However, Internet free speech advocates are to some extent missing the point about NSOs. Courts are not generally seeking to fetter utterance, which appears to be the principal concern of bloggers, many of whom have negligible readerships and are engaged more in monologue than discourse; rather the courts are principally concerned with how information is processed by a select, potential audience of jury members. (The logic here is that absent a jury, absent name suppression except in truly egregious circumstances.) That is why certain Australasian courts have tried 'pinpoint' name suppression, by only restricting media outputs that are permanent, digital and easily searchable by a juror or potential juror. [73] Some overseas bloggers were outraged by Justice Harvey’s decision in the Cyber memory case despite his seeking 'to give the proceedings up to more scrutiny rather than less' (Burrows and Cheer, 2010, p.67). The aim was to prevent the creation of searchable Internet files that might be used by a jury, not to inhibit free expression. In contrast to the Cyber memory case, based on the reasoning that 'information is available only for those persons who actually search for it', the Victorian Court of Appeal has refused to order traditional media to remove information from their websites, likening web searches to conducting research at the newspaper archives of the State Library. [74] (Unlike in New Zealand, it is a crime in Victoria for a juror to conduct her own research during a trial.) [75]

Even before the emergence of new media, Chesterman (1997, pp.142-143) asked whether any legal regime 'which purports to control the flow of information to the public is bound in due time to look like King Canute?' But NSOs do not seek to oppose irresistible forces of nature or technology; they aim to ensure fair trials which are as much a feature of an open democratic society as freedom of expression. Rather than establishing grounds for fatalistic surrender, universal access to new media tools demands critical reflection on the principles and practices of name suppression. [76]

6. Conclusion

Despite a fairly robust set of principles being established at an appellate level to ensure name suppression remains an exception to the fundamental principle of open justice, lower courts in New Zealand may grant NSOs too readily. The new provisions of CPA 2011 should keep the lower courts in check, and, unlike certain Australian states, New Zealand continues to respect the autonomy of jurors in the face of the searchable nature of online information. Represented particularly by Justice Harvey's decisions in the Cyber memory and Whale Oil cases, it submitted that the judiciary in New Zealand has made a commendable start to engagement with new media and name suppression. The government’s retraction of its proposal to hold ISPs liable for the crimes of their clients is also welcome. Furthermore, referring the intersection of new media and the judicial system to the NZLC for in-depth investigation offers the prospect of further analysis and better considered regulation. [77]

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