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« Unprejudiced | Main | Defamation liability for threads on blogs and news websites »

Harvey’s online gag

By Steven | August 26, 2008

Sounds like a prank website, doesn’t it?

Of course, I mean Judge Harvey’s recent order that non-internet media can report on the proceedings against the accused killers of John Hapeta. Still, some people have been wondering: is this a joke? Isn’t trying to put a lid on the internet rather like trying to bottle a hurricane? Does he even have the legal power to do it?

The decision 

I’ve just seen his reasons for decision, so I feel like I can say something sensible about it. First up: why’s he done this? Judge Harvey is probably the most tech-savvy judge on the bench at the moment. He’s written the leading text on internet law in New Zealand, and he lectures on the subject at the University of Auckland. This isn’t some knee-jerk order from a judicial luddite.

Judge Harvey points out that the days of ”partial obscurity” are over. ”Partial obscurity” is what you get when you combine open justice with the fact that almost everybody (including me, I confess) suffers from CRS: Can’t Remember Stuff. So if a news story about a defendant contains something inaccurate and unfair, or prejudicial, then by the time the trial rolls around, the jurors are likely to have forgotton this. The judge quotes Sir Edward Coke, who calls this, rather delightfully, “slippery memory”. The upshot: fair trials aren’t usually prejudiced by bad reporting because most of us have memories like sieves. 

Yes, jurors could bowl along to the library to check their archives. But that’s a lot of effort. It’s fair to assume that hardly anyone ever does that.

Is it equally fair to assume that jurors aren’t going to go home and Google the defendant’s name? Of course not. What if the judge tells them not to, as some have suggested?

Now jurors. I am warning you not to go home and Google the defendant’s name. You must not do that. Even if you are tempted. Even if you are very, very tempted, and you are at home, and the computer is sitting right there, calling to you, with its little Google maw imploring you to feed it just one little defendant’s name, just for five minutes, what harm can that do, just a peek at the forbidden information - there must be some, mustn’t there, otherwise why this order not to look - just a peek, surely more information is better than less, we want to get the verdict right after all, and no-one’s going to find out anyway…

So this is Judge Harvey’s attempt to head this problem off at the pass. Once prejudicial information is up there, it gets archived and stored and cached in all sorts of places, commented on, added to, and twisted. Even an accurate account of what’s known early on may become misleading and distorted in the light of information that turns up later.

Lawyers and policy-makers have been grappling with this problem for some time. They haven’t been making much progress. You can argue that Judge Harvey is ahead of the curve. I’m inclined to think the most likely effect of his order is to get officials talking about how to handle this better. That’s got to be a good thing.

Another point in favour of Judge Harvey. He’s not really banning online publication. The case was heard in the Youth Court because one of the defendants is young. That means media reports of the proceedings are banned by the Children, Young Persons and Their Families Act 1989, unless the judge gives leave. (That law also automatically suppresses the name and identifying details of the youth - so don’t blame the judge for that either). Judge Harvey gave leave - but only to those media that weren’t going to create searchable records. It might have been a different story if he was issuing a suppression order under section 140 of the Criminal Justice Act.

The ban

What exactly has he banned? Oddly, this is not really very clear. The bold type on the front of the decision, which may or may not form part of the decision, says:

PUBLICATION IS LIMITED TO PUBLICATION IN A NEWSPAPER OR BY WAY OF CONTEMPORARY RADIO OR TELEVISION BROADCAST. PUBLICATION ON, OR BY WAY OF STORED VIDEO OR IMAGES ON, A WEBSITE OR INTERNET SERVER IS PROHIBITED.

Some points:

I have ordered that there be no publication of the names or images of he accused on internet based news dissemination sites.

Earlier in the decision, he says the suppression order relates to:

the publication of any accounts of what took place in Court on the internet by way of online news publication or stored video, which can be replayed or accessed at a later stage.

These would allow publication in magazines, and probably simulcasts, and maybe blogs, and may only be suppressing names and images rather than any accounts of the proceeding.

Memo to judges: sort this shit out. We need to know, definitively, what we’re not allowed to publish.

My critique

For me, the biggest head-scratcher about this decision, is: why this case? Judge Harvey identifies no particular material that is likely to cause prejudice if it’s published and later accessed by jurors. He doesn’t even say that such material is more likely to be published in this case than any other. I don’t think he’s assuming that the mere name or image of the defendants is likely to cause any prejudice by themselves. Those are both going to be obvious to jurors. No, he’s assuming that that the names will be a sort of search-gateway to prejudicial information that will be likely to gather itself out there in internetland. (Incidentally, as David Farrar has noted, the victim’s name might well serve as another such search-gateway, but there’s no restriction on publishing that online).

In short, his reasoning seems to apply to every single criminal case, or at least, any that’s likely to have any sort of profile.

Without such a reason, he seems short of real justification for the way he’s carved up different types of media in his order.

What’s more [warning: pet peeve looming], there’s no consideration of the Bill of Rights Act. He’s exercising a statutory discretion. It is affecting freedom of expression. Is it demonstrably justified in terms of section 5?

Of course, the irony is that this case is likely to get much more coverage, online and off, lawful and not, here and overseas, because it’s the first time such an order has been made. For those tempted to breach it (and that includes posting it on a foreign website, if the posting can be traced back to you), you’re up for a fine of up to $2000, and if it’s flagrant enough, a possible application to hold you in contempt of Court.

Where to from here?

Media organisations are thinking of challenging the order.

But I suspect they might be better off waiting for the case to hit the High Court (at least with respect to the adults), when the order will have to be revisited.

Topics: Contempt of Court, Name suppression, Suppression orders |

2 Responses to “Harvey’s online gag”

  1. Rick Shera Says:
    September 2nd, 2008 at 12:04 pm

    Steven,

    A few quick comments:

    1. Much of the criticism of this decision seems to be based on the fact that it cannot work/has not worked and, as evidence of that it is claimed, one only has to do a Google search to see numerous postings of the suppressed names. However, I would be very surprised to see that same Google rankings in 6 months time when the jury is empanelled (and how many jurors, even if they do ignore judicial warnings, will go beyond the first page or two?) IMHO, that is the time when we should be considering the efficacy of the order.

    2. Some of the criticism comes from technically or internet savvy people. There seems to be a desire to show off their technical/internet smarts and in so doing denigrate those of Judge Harvey. Similar point to 1 above, but the concept of a jury of ones peers being taken from the wider populace seems relevant - the order is not aimed at technically/internet savvy people alone since Judge Harvey knows better than most that they can easily flout it - it is aimed at the average juror. If the publication can be kept off the NZ web, then much less likely that those jurors will see it.

    3. Suppression orders have always been able to be overcome by extra-jurisdictional publication. So, if a juror wanted to go to the length of getting a clipping service to send over Aussie hard copy reports, they could practically flout the suppression order in that way. Yes, because the internet makes that easier, the holes are bigger, but that does not mean that some attempt, which will be more successful than doing nothing, should not be made… does it? As Bruce Simpson has said in today’s Aardvaark, the case is a serious one.

    Anyway, a fascinating convergence of media and ICT.

  2. Steven Says:
    September 2nd, 2008 at 12:56 pm

    Good points, and similar to what I’ve been saying on Radio NZ. I’d add that the people on foreign websites crowing about breaching the order might like to think about what they’re actually achieving. If I know the names, I can Google them, and I’ll come across these websites and learn… their names.

    What’s more, jurors (when they’re picked) are certain to be familiar with the names and images of the defendants. There’s nothing on the website’s I’ve seen that is prejudicial. It’s much more likely that NZ websites are likely to contain speculation and false information that could harm a trial - but the judge’s order seems to be doing the trick with them.

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