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R v Internet – Third Session

Posted on December 3, 2009

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).

General principles:

  • 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.

Myths:

  • 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.

However:

  • 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.

Posted by Thomas Beagle

Comments (4) Trackbacks (0)
  1. Propagation of information requires that people care, or are perceived to care, about the information itself. The argument that some suppressed information did not go out presumes that in fact anyone cared about that information in the first place.

    The internet has only changed things in one real respect with regard to this kind of thing – it has allowed us to propagate the information *faster* than before. It is this property that causes the issue because where a slower propagation would allow information of timely interest to die out before reaching maximum propagation, now the rate of propagation out-paces the declining interest by a considerable rate.

    Notice that none of this involves publication whatsoever. Even were we limited to purely private communications such as email and IM we can still out-run the declining interest, assuming there is in fact any interest.

    The inevitable result is that items of sufficient interest will be known. The only thing the implementation of barriers determines is the rate of propagation and thus to precise point in the gradient where an event goes from subcritical to critical interest. When people advocate stronger controls, they are not providing a better court outcome for everyone, but only for those of lesser national interest. Given that this is the case, I think the biggest question on everyones mind should be: is the impact on other aspects of freedom within our society worth such a minor improvement in juror bias? or shall we just chalk it up to reality, just as we do “Juror #7 doesn’t like the look of the defendants face because it reminds her of a guy she once met who stole her handbag”?

    Personally, I think the horse being out of the barn is simple fact, and the sooner everyone acknowledges it and stops wasting their time trying to stuff it back in, the quicker we’ll start dealing with things that will actually make a difference, like improving juror education.

  2. I think you’ve nicely summarised the view from the “internet” side of the room at the seminar. Information will get in (to the jurors) and out (to the populace) and we’ve got to work out how best to deal with it.

    The people on the “legal” side of the room haven’t quite come to this realisation yet. :)

  3. The Answer to the Machine Is in the Machine

    – Title to a 1995 article by Charles Clark, a British publishing lawyer

    This is discussed extensively in Chapter 11 of William Patry’s “How to fix Copyright” He definitely considers it intellectually bankrupt, chapter is entitled:

    “The Answer to the Machine Is in the Machine” Is a Really Bad Metaphor

    Its origins are even more interesting.

    “It is unlikely many people have read Mr. Clark’s article. The article is not available online or in digital form, even though online licensing is the very subject of the article. There are only two, very obscure, hard copy versions of the article available, both in books, and both books are out of print. The proceedings of colloquium to which the article was submitted are available only via print on demand, for the steep price of $137 for a 248-page paperback book that looks barely typeset. The article is also contained in a second book, this one co-edited by the German copyright
    scholar Dr. Thomas Dreier. Dr. Dreier’s book contains a great deal of Mr. Clark’s writings, but it was published by the Norwegian Center for Computers and Law. I found one used copy available from Amazon.com in the United Kingdom.

    Many law review articles cite the metaphor, but no one ever quotes from Mr. Clark’s article, which is another reason why I think few people have ever read it. I have read it, and here is the final sentence of the article: “The answer to the machine may turn out to be not only in the machine, but the machine will certainly be an important part of the answer.”

    In Patry’s opinion:

    The actual purpose of the metaphor turns out to be, “The answer to the machine is to use laws against the machine.”


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