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R v Internet – Final Panel

Posted on December 3, 2009

Sinead Boucher - Group Online Editor, Fairfax

Everything's changing very, very fast, no sooner do they get a handle on something then they have to rethink it. What we discuss today might be obsolete in another year.

Last year they had a talk about social media and didn't even mention Twitter in their meeting. Now Twitter is changing everything, news goes out instantly - and then half an hour later the judge suppresses the information.

Says that the media never deliberately breach suppression, and see themselves as having a role in being the public's eyes and ears.

She found Judge Harvey interesting but would like to have a more in-depth discussion of the realities of trying to report something. For example, two reporters are sitting next to each other and both trying to avoid breaching a suppression order - but between them they might accidentally release enough information to identify someone.

Ursula Cheer - Associate Professor, University of Canterbury

She has found it a very useful seminar, particularly getting to hear the views of the "Internet side" of things.

Thinks the Law Commission report is very valuable for clarifying the legal position. And, if the recommendations are implemented, there will be less breaching of suppression orders because there will be less orders. But this also means that the suppression orders that are left will be even more important as they will be more justified.

The media complains that bloggers and Facebook gets away with a lot of stuff that they can't do.

But as to the claim that the horse has bolted and Internet suppression is futile - we're still in the early days of it all and everyone is learning about it. It's a challenge, but law has always faced challenges. For example, the invention of photography and video, new laws around using your mobile phone in your car.

There is an argument that this is about free speech and information wants to be free. Connected with this is the argument that suppression is bad per se and that other countries such as the UK and USA don't use it. Responds that NZ doesn't take an absolutist approach to free speech, believes in balance and sees suppression as being important for a fair trial.

David Farrar - Blogger

The Prominent Entertainer Case

  • Did a poll on his blog and 71% of respondents claimed to know the identity (and some of them immediately posted it).
  • Searching on Google with the search terms he chose and found it on the front page.
  • Looked on Trademe and found the answer there, even though that's a highly managed site.
  • It's not just blogs, it's crowd-sourcing. MSN NZ has the name in a comment on an article.
  • Yahoo Answers has it as an official question.

Sinead mentions that her mother was concerned that the prominent entertainer might be John Rowles!

David Farrar than showed a rebus from another blog that could be used to work out the name, followed by the Facebook page of the person in question that has a comment saying "Hey, you got done!" (He also accidentally had the name in the Google search box on the screen he showed us. Which then got streamed over the Internet. Ooops.)

Suppression Orders and Blogging

The problem of finding out what is suppressed. Talked about a time he made a random guess and accidentally breached a suppression order.

Old media relies on gossip, court registrars sometimes won't give out copies of suppression orders.

David asks whether he has a duty to go through his archives when a court order suppresses historical information.

Is a hint a breach? Is a comment saying that you can find it out somewhere else a breach? He removes links but it's a fact that it does exist elsewhere.

He finds it frustrating when other bloggers deliberately ignore suppression orders and nothing happens to them.

Farrar says that suppression orders work ok in low profile cases. The irony is that prominent people can make an argument to have their name suppressed, but they're the names that people are going to spread.

He generally supports the Law Commission report, but thinks that blocking should apply to the people who pulbish the information the blogger), not the ISPs that might host the hardware.

General Discussion

[Lots of the same points that were raised earlier. Will only report on new points.]

Bernard Hickey thinks that the legal people, the media people and the Internet people have been talking past each other at the seminar. Some people think the horse has bolted, while others feel it's still in the corral. Suggests that further education/discussion might be required.

Apparently there is a committee where the media (one print, one television) and courts do discuss some of these issues. They have no Internet people and everyone agrees that they need one. InternetNZ will follow this up and the idea of the wider discussion forums suggested by Bernard.

Closing Comments - Frank March

The Internet is speeding up the rate of change. Twitter is new and appears to be changing everything - and what will come next? Innovation introduce new opportunities and challenges, the law will have to try to keep up.

However, we have human institutions that are capable of change and seminars such as this one are part of the process.

Posted by Thomas Beagle

Comments (2) Trackbacks (0)
  1. People have the right to a fair trial, which among many other things mean that the jury is expected to make their decision using *only* the admissable evidence they hear in court.

    So there is a very good reason for some suppression orders (Unlike those keeping All Blacks and rappers from notoriety, IMHO).

    How do you stop jurors searching for a defendant’s past? They are unlikely to go to the public library and trawl through old newspapers, but they might well use Google. So there is reason in the judge seeking to suppress online but not paper publication.

    Does the human right to free expression trump the right to a fair trial?

  2. Indeed, and that is one of the issues that the Law Commission report grappled with. Of course, we know that jurors are not blank slates and do come in with existing knowledge, but the Internet gives them much betters tools to refresh their “partial knowledge”.

    The problem comes in when we ask if it is *possible* to control information.

    My personal opinion is that it is becoming increasingly difficult to control the information and therefore, like Steven Price said, the only option is to take more time to educate the jurors about how they should be making their decision.


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