InternetNZ hosted a workshop about name suppression in the digital age.

The following notes were made at the session. They give a general idea of what was discussed but should not be taken as definitive or complete.

Notes from InternetNZ – Name Suppression
3 February 2011

Introduction from Jordan Carter

Part of a trend towards turning ISPs from neutral conduits to Internet Police.

• copyright, filtering, now suppression

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Warren Young – the Law Commission view

Here to listen and learn.

Commission’s recommendations from the report have been largely picked up by the bill.

Current regime – things are left up to the courts. Case law has been developed over time. The provisions have largely picked up on those conventions.

Differences between the bill and the report:

• bill includes automatic suppression of the names of child (under 18) victims and witnesses.
• bill provides for registrars to be able to grant interim suppression (once, for up to 28 days, if parties agree). Basically a pragmatic change.
• bill wants to codify the right of media to have standing to speak to name suppression (clause 214)
• bill includes that a person is well known is not grounds for suppression
• report said offence if ISP knew, bill says knew or has reason to believe

Name suppression in relation to the accused

• case law says it should be the exception, must be strong factors to be granted
• bill says “extreme hardship”. A very high bar, higher than the current test.
• Warren continues to be astonished that the media says that the effect of the provision will make it harder for celebrities to get name suppression. His perception is that it’s always been hard. But it will still be easier for celebrities to get name suppression than other people because if you’re well known, extreme hardship is more likely.

Offence Provision

• has been tightened from text of report
• claims better definition of ISP
• taken from Copyright Act 2008

Rick Shera – A Legal Analysis

Section 216 (ISP) assumes that someone has breached the order and published it. But then quotes a Court of Appeal ruling that says that once the information is out there, there’s no point continuing with suppression. It’s shutting the stable door after the horse has bolted. It’s futile – and futility is taken into account by the courts.

The Global Internet – but of course they managed to get Slater.

The Lewis case – US billionaire caught with marijuana. Suppression failed miserably.

ISPs ask “Why are you making us liable? We don’t know anything about it.”

Makes comment that there is no precedent for this anywhere in the world.

What is an ISP?

• the problem is that nearly everyone is an ISP
• universities, libraries, businesses…
• catches multiple ISPs (information passes through a chain of them)

(Note: Rick might be a bit off track here, current definition tries to only include content hosting ISPs, not transmitting ISPs.)

How does an ISP know?

• reason to believe vs actual knowledge (lacks mens rea – guilty intent)
• media already have difficulty working out what is suppressed
• contrary to LawCom report (and Cabinet approval of report) that said that ISPs must *know*, not just believe

Notification

• need official notification to prevent bogus use (chilling effect)
• already seen in the copyright arena – bogus notices from non rights holders with ulterior motive
• ISP has to take it down or risk being found liable
• if you don’t get suppression – why not just send a bogus takedown notice?
• no punishment for lying

National Register might help

• ISP can go check
• who has access to this register? Obviously it must be very wide if everyone is going to be an ISP?
• interesting Scottish example – general public has access
• what if the order is lifted or varied – do they have to monitor it all the time and hide/unhide things?

Knowledge of Breach

• media can choose to publish or not
• ISPs can’t make that decision – how do they know it’s being published?
• DPI is unworkable – rights and technical issues
• keyword searching is also unworkable – “John Smith”
• coded or obscured material – detection can’t be automated

Solution

• Delete section 216

If it remains

• official notices of details and location (ala DMCA notices)
• by analogy to interception regime
• no liability for ISPs
• cost recovery?

Question from Colin Jackson
Q. Did you just say that this could be used to force a newspaper’s ISP to remove articles from their online copies?

A. Yes. But this law would say that the newspaper is an ISP. So you send it to Chorus, the ISP, the paper, etc… one of them should take it down.

Question from Stephen Price

Q. Mightn’t there still be a very large unknowing public if suppression is granted?
A. Possibly. But doesn’t think it will last as social media grows.

Question from David Farrar
Q. Clarifying various points.
A. Rick confirms that he doesn’t want ISPs liable at all. Doesn’t agree with the “safe harbour” idea where the law kindly grants immunity but is really making them liable.

Comment from Warren Young
Intention to only capture hosting ISPs, not transmitting ISPs. Believes it has achieved this and bill has both definitions, Rick agrees that this might be the case.

Judge David Harvey – A Judicial Perspective

Says he was the judge who:

• suppressed the name of Peter Lewis
• fined Cameron Slater.
• granted interim suppression to Martin Devlin

Two issues he wants to talk about

• name suppression and a fair trial
• ISP involvement

Name suppression and a fair trial

• part of a bigger context – media access to court proceedings
• not just suppression but cameras in court, access to court files, general reporting of court proceedings, tweeting in court, blogging while proceedings in progress

Cl. 214

• what about para-journalists such as bloggers, tweeters, etc.
• Does a Tweet to your friends cover publication?
• digital media – very little limit on who can contribute

Continued availability of information

• information published on the Internet doesn’t die. It’ll be cached or copied (wayback machine, google cache)
• and then it’s searchable
• information is readily available and is fresh and clear, not a faded memory

The Googling Juror

• has problems for fair trial
• mentioned the problem of jurors not just googling for facts, but also the law
• e.g. an NZ jury getting a definition of “beyond reasonable doubt” from a US website. Where it’s different.
• role for judge in educating jurors about acceptable behaviour
• have to assume that jurors will Google
• we now have an assumption that we can find things out when we want
• many of us would be happy to ignore judicial directions

Talking about the example of the Underbelly program in Australia interfering with trials over there.
Quote of “a tainted trial is better than no trial at all” from some Aussie lawyer

Possible solutions (not recommended)

• ban suppression orders – basically give up.
• Recognise that perhaps the internet is fundamentally changing the nature of the jury trial with reference to information and impartiality.

Alternative trial models

• mix of professional and lay adjudicators
• judge alone trials (already heading in that direction)
• a range of other possible options – delay, challenge for cause, move the trial venue, etc, etc

ISP involvement

• law seems to be based on section 92c of Copyright Act
• concerned about special definition of ISP and prefers “internet content host”
• believes that specific knowledge of the breach should be required to attract liability
• obviously ISP still being required to make judgement calls – he doesn’t like that

Alternative scenario

• liability should only kick after people are notified they’re in breach and continue

Other issues

• ISPs need standing if they are being treated as media
• but even if they remove it, it still doesn’t vanish – caching, offshore, archived

Conclusion – the proposal may require further thought

Question from Hamish MacEwan
Q. It’s not media access to courts we need to worry about but public access to courts.
A. Judge Harvey notes that all citizens can go into the court and that the media are the surrogates of the public

Questions from Stephen Price
Q. Why shouldn’t bloggers have the right to challenge suppression orders?
A. Whole machinery of justice will grind to a halt! His inner anarchist says “Let’s go! Agrees that the current bill doesn’t recognise this reality that bloggers will be liable but won’t have standing.

Q. To what extent might ISPs be liable as publishers under the current law?
A. Thinks that they aren’t liable – they’re a conduit.
Rick Shera comments that most countries worldwide don’t hold ISPs liable for content.

Other questions
Q. More work with juries and testing what they know to get an “impartial” jury?
A. Here a jury can be empanelled in 20 minutes, in the US it can take up to 3 weeks.

Q. Sequestering juries as a solution to the research problem
A. We just got rid of that! Can still do it, but seen as inappropriate and a gross imposition on jurors. Also pointless if we let them have phones and so on.

Tim Pankhurst – A Media Perspective

Newspaper Publisher’s Association

Declares himself to be a simple journalist, not used to the deviousness of the law.

Started with some anecdotal history

• Talking about other media people over the years who have had their names suppressed. Did they deserve to have their names published? Yes.
• Used to read the Nelson paper’s wednesday summary of *every* court case from the region.
• Publishing all drink-drive convictions in an attempt to name and shame. Including his own family member. Only complaint was from a young man who wanted to know why his brother wasn’t on it.

Obviously in favour of publishing names. As for celebrities – you can’t just turn off publicity when it suits.

Judges and politicians making “analogue decisions in a digital age”

Public needs access to courts. Open justice is an important check on judicial fairness and competence. Talking about the damage to the reputation of the Family Court from its secrecy.

They appreciate that the media will have standing to challenge suppression.

Notes that fines have gone up – with this increased risk, surely they need a way to find out what has been suppressed. South Australia has a register.

Extreme hardship – does this just mean “A sick grandmother or an All Black connection”?

Unsure about automatic suppression in some cases such as sexual assault – issues around notifying society about what’s happening and possible threats. e.g. notifying people of Graham Capill’s wrongdoings.

Likes “real risk of prejudice” as a higher test for granting a suppression order, judges are often too cautious with suppression orders.

Administration of suppression is a shambles.

Very hard to recall information once it has been published.

Basically saying that there’s very little point in suppressing names of well-known offenders in the digital age.

Prepared to accept increased fines if:

• Want courts to go after online people as much as they go after conventional media.
• Also need a register of suppression orders. They don’t deliberately breach suppression orders.

Talking about access to register. Suggest only editors. Could be tied into official notices.

Question from Steven Bell
Q. What’s the difference between commentators/bloggers and mainstream media? Shouldn’t they then have similar standing in courts and access to a putative register?

A. It’s a vexed question

Comment from Warren Young
Interim suppression – defendant doesn’t have a lawyer, isn’t ready to present evidence in favour of suppression. The Bill makes it easier to get suppression on first appearance – that only lasts until next appearance.

Response from questioner – this has led to people always asking for it, even though they know they’ll never get it in the long term. The media then moves on to other topics before suppression is lifted.

David Farrar – The Blogger’s View

Mentions his faux pas at R v Internet… hadn’t quite cleaned up the screenshot enough and accidentally revealed a suppressed name.

We love gossip. Internet makes gossip work better.

Police v Slater confirms that the law applies to the Internet. Also shows that bloggers are being caught.

But what about TVNZ and the Singh electoral fraud case? They zoomed into a billboard until his head was framed. Why didn’t the courts go after them?

The idea of nzsuppressionorders.blogspot.com – no need to register a real name or anything. Google will ignore NZ court orders. Take 10 minutes to set up and suddenly there’s a go-to site for breaking all suppression orders.

Challenges for a blog owner

• finding out if there is an order?
• he blogged the Singh arrest based on a eye witness account
• how could he find out if the name was suppressed? Ended up calling a reporter and asking, who then checked with the newsroom, who confirmed that the name was suppressed.
• and what is in the order?
• tells about an inadvertent breach he made through speculation in John Dewar case
• suppressed orders lead to online speculation
• does the blog owner only delete the *correct* guesses made by blog commenters?

Makes an important point that media need advanced warning as they can’t unpublish the newspaper, bloggers can edit on the fly.

What about breaches by referral? The differences between:

• link to the page on Whaleoil?
• or a link to Whaleoil front page?
• or a comment that “he’s broken another one”
• or a reference to a “notorious blog”

Not always clear when a commenter has breached

• puzzles, initialisms, cunning constructions
• “An interesting name”

S202(2)

• Note that reporters are not subject to Press Council – rather the publishers are.
• What about when you’re a blogger and a member of the media? (Like David is)
• Obviously if he’s liable, he needs access to the same standing and so on.
• 202(2)b – Don’t leave it to the court – but have a central list of “other media”.

s215

• breaches of suppression orders from s205, s207, s208 (child sex crimes and so on)
• 6 months jail seems a bit much, especially with the other problems involved

s216

• thinks he is an ISP by that definition
• has had lots of people try to get material taken off his blog by falesly claiming copyright, suppression, privacy, etc.
• notifications should be from someone with a duty to tell truth (e.g. court officers) not just random people.
• needs better notification than “your blog is in breach” – at a minimum the URL of the page.

s216(4)

• is well intentioned to notify the user that something has been taken down.
• but does it work for commenters on blogs? He doesn’t know who the anonymous commenters are.
• is replacing the comment with “comment deleted” adequate notice?

Summary

• Agrees with the law but thinks it will be ineffective, especially for cases of public interest
• Definition of media is far too narrow (referenced LawCom’s “new media” project)
• Need a register so that people can work out
• Need to be explicit about who can notify and what constitutes notification

Question from Warren Young
Q. 202(2)b – who would compile the list of “other media”?
A. Suggests Ministry of Justice

Question from Trademe person (25k comments a day on their forums)
Q. Trademe are obviously not media, will they get access to this putative register?
A.Response – obviously they will need access. So will others, on a case by case basis.

Comment from Judge Harvey

Q. Judge Harvey suggests changing it to strict liability for people who knowingly do it. People with no access to this notional register will suffer from not knowing what is suppressed.
A. Farrar responds that he sees he has a duty to do proactive monitoring as much as he reasonably can. Making it strict liability would remove this duty.

General Discussion

Steven Bell – The idea of a register of anonymous information “case x, defendant name suppressed”

• DPF responds, tends to be less precise and not as useful.
• Warren Young says it’s impractical – might be tens of cases of assault in Auckland on a monday morning.

Debbie Monahan

• Should go after the offenders, not the intermediaries

Thomas Beagle

• Asks how many people in the room think we can come up with a fair and workable scheme for suppression. About 5 or 6 of 35 people put their hands up.