Law Commission Review of Suppression
Warren Young, Deputy President of the Law Commission, started off the afternoon sessions by talking about the Law Commission's Suppressing Names and Evidence report (PDF).
- Open justice unless this would result in injustice.
- Bill of Rights Act – freedom of expression. But reasonable limits as can be justified in a free and democratic society.
In general, the Law Commission wishes to reduce the use of name suppression and tighten the procedures around it. He discussed how and why they wish to do so, with particular reference to the current hot issue of celebrity.
When it comes to the Internet, he says that the view that "the horse has bolted" is an overstatement. Maybe more people know, but he doesn't accept that everyone knows. There were hundreds of orders made last year, did they all get out? "There's lots and lots of shoplifting around, shall we make it legal?"
He says that the intention of the Internet block referred to in the Law Commission's report refers to locally hosted information and not information hosted off-shore. Admits it was badly phrased. Then asks whether we should try, can we or should we block information hosted on offshore sites?
Steven Price asked whether ISPs are currently liable under current law once they're told they're hosting material in contempt of court? Warren Young thought not but wanted to think about it.
There was then a discussion about the "prominent entertainer" and the issues surrounding identifying people by separately publishing little pieces of information. Bernard Hickey asks whether name suppression has now turned into a national game of "whodunnit". Does this bring the legal system into disrepute by being made to look a fool?
David Farrar raised the issue of what should a blogger do when approached by a "crazy person" who claims that something is suppressed without producing any evidence of that.
There was then a question about whether all names and evidence should be suppressed before trial. Warren Young replies that it's important to see who the state is using its power against, a position I agree with.
Robert Lithgow ask where does the moral authority come to publish the information and cause damage to the people around the accused?
I was pleased to see that the Law Commission didn't mean for ISPs to set up a huge Internet filtering scheme. And while accepting his point that suppression does work in many cases, my personal opinion is that they will become less and less effective.
Suppressing Online Media
Judge David Harvey quotes three editorials with three different points:
- Open justice
- Futility of suppressing information on the Internet
- Jurisdiction over foreign websites
Starts with a discussion of what open justice is. The people need to know how and why the courts come to decisions, but does the press need to publish everything that happens in court?
What does publishing of a name have to do with the scrutiny of how and why courts come to decisions? Is it just prurience? Of course, we do want to know who has done bad things so we can avoid them, but does that apply to people who haven't been convicted?
Judge Harvey then had a discussion of practical obscurity (finding information in the pre-Internet age), partial obscurity (partial memory of information), which are both challenged by the searchable nature of the Internet.
- That information just appears on the Internet - someone puts it there.
- That the Internet doesn't really exist and legal provisions can't be taken against it - but the people are subject to laws and the servers are in physical locations. NZ law has already had a conviction for someone in New Zealand putting information on a server overseas. (He doesn't mention anonymous publication.)
Judge Harvey then talked about the challenges of information on the Internet. It's easy to find, it "feels fresh", it's hard to remove. This challenges both practical and partial obscurity. Quotes Sturgeon's law that 90% of everything is crap.
- People in New Zealand who breach suppression orders on the Internet can be prosecuted.
- ISP blocking is one possible solution to the problem of offshore information. Says you can block access and you could require ISPs to do that. No discussion of how well this would work, who would bear the costs or the other usual issues.
- Newspapers can also be forced to block material in the pre-trial phase
Ultimately, Judge Harvey believes that Internet content can be managed and controlled. But asks how far do we want to go to do that.
Lance Wiggs asks whether you can block Facebook and Twitter? Judge Harvey says he doesn't really know. If the Chinese can do it surely we can? He refuses to accept that the horse has totally bolted.
I don't believe Judge Harvey really understands the nature of information dissemination on the Internet, especially considering that searching is only going to get better/worse. His position that "the machine contains the answer to the machine", while having a certain zen-like appeal, seems meaningless as a way to actually think about these issues.