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Fact Suppression

By Steven | November 29, 2009

Which is worse: our name suppression laws, or the media’s coverage of them?

Today, the Sunday Star-Times leads with a story headlined “Identity of high profile drug accused kept secret”.

The story is about a familiar one: public figure gets name suppression; cue outrage.

Never mind that this particular defendant’s name was not suppressed between her arrest in April and last week. It could have been reported on any time. If it’s such significant information, perhaps we should be asking questions about the quality of our media. Maybe the headline should have been “Media miss high-profile drug accused story for 7 months”.

And never mind that the name suppression is plainly an interim one, put in place so that a formal application can be made next month.

Never mind that the judge seems to have indicated that the application’s prospects look slim.

(And, incidentally, never mind that the story seems to breach name suppression laws by providing identifying details of the defendant. How many high-profile NZ businesswomen are there whose ex-husband died of terminal cancer this year?)

To be fair, the story contains the information to enable me to make all these points. So does it really justify a front-page lead attacking name suppression laws?

Then there’s this effort, from yesterday’s Weekend Herald: “Government blocks naming of sex act star” (changed online now to the slightly more accurate “Crown blocks naming of sex act star”)

Wow. Really? The government could have allowed the defendant to be named, but prevented it? No. The Solicitor-General merely decided not to appeal.

The subhead says “Crown lawyer fails in attempt to overturn prominent musician’s suppression order”. That’s weird. So there was an appeal? Nope. The story is even equivocal on whether a Crown lawyer recommended an appeal. It eventually says “a senior Crown prosecutor looked into appealing” the order, but was “blocked” by the Solicitor-General.

I’m not sure what exactly happened, but we seem to have strayed a good distance from the headline. (I should point out that that’s largely the fault of the headline-writer not the journo).

The story goes on to claim that “breaching a suppression order is contempt of court”. Wrong. In extreme circumstances it may be, but not usually. (And that error is probably the journalist’s fault, though you would have hoped that the sub would have known some basic contempt law).

Both stories refer to the Law Commission’s recent report on name suppression. The Herald says that the Law Commission “wants internet service providers or content hosts to be subject to a ‘notice and takedown’ order requiring them to immediately remove or block access to material that breaches a court suppression order.” Close, but wrong again. (Did the reporter read the report? It mentions that a “notice-and-takedown procedure” was “one suggestion”, but then recommends something that’s actually broader: a requirement for removal or blocking when the ISP or host “becomes aware” of a suppression order. That doesn’t require a “notice and takedown order”, whatever that might be. And I’m with Ursula Cheer in reading this as not aimed at requiring ISPs to filter anything, as opposed to requiring their customers to take stuff down.)

The best bit is where the story says “even Prime Minister John Key admitted he knew [the entertainer’s] identity.”  Can it really be surprising that the person with access to the entire information gathering apparatus of the state and the gossip network of the country’s leading political party knew a piece of information that’s relatively easily discoverable on the internet? But perhaps the operative word in that sentence is “admitted” (though it’s no offence to know the name, and “admitting” that he didn’t know the name would make him look like prize doofus).

It’s hard to escape two impressions:

1. The media don’t really understand how the laws of name suppression and contempt work; and

2. They routinely beat up name suppression stories to paint the suppressions as unjustified.

If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppresson of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them – ie they’re not permanent suppression orders. Only about 700 a year are permanent). The Commission conveniently put that information in Chapter 1 of its report.

What’s more, instead of playing up the futility of such suppression orders when “everyone knows” who it is, the media might have asked some people, you know, whether they know who it is.  When I ask my classes (clued up media and privacy law students) usually, most of them don’t know. That’s not because they couldn’t find out (most of them can find out quite readily if they want) – it’s because they haven’t bothered. The reality is that even when journalists think that “everyone knows” because everyone they know knows, actually lots of people don’t know. I imagine if you’re someone with a name suppression order you could be justified in thinking that there’s a difference between lots of people knowing, and having it appear on the front page of the paper.

Of course, we’re only talking about celebrities here. Of the roughly 700 name suppressions issued last year, how many suppressed identities could you name? So…. still think that the internet is rendering suppression orders pointless? Only for the handful of public figures who apply for them, surely. Then aren’t you sick of the perennial stories that breathlessly ask whether technology has rendered name suppression futile?

I should add that I’m inclined to think that permanent name suppression should almost never be given after someone’s been convicted, so I’ve got serious doubts about whether it’s appropriate in either of these cases. That also happens to be the law, and the way it’s usually applied. Of course, final suppression hasn’t been given for the businesswoman. It was for the entertainer, but there’s at least a plausible case that this was justified, though not one that I’d agree with.

Hint to those anti-suppression types looking for a real angle on the Law Commission report: check out the recommendation that name suppression should be allowed at first instance to anyone who can make an arguable case. This is happening in some courts already, and has long struck me as inconsistent with Court of Appeal authority. It’s probably a necessary concession to busy list court judges. It still requires the defendant to stump up with some evidence and good arguments on second appearance, or the suppression will lapse. But it does considerably widen the initial reach of our suppression laws.

Topics: Contempt of Court, Media ethics, Name suppression, Suppression orders | 13 Comments »

13 Responses to “Fact Suppression”

  1. Graeme Edgeler Says:
    November 30th, 2009 at 8:29 am

    How many high-profile NZ businesswomen are there whose ex-husband died of terminal cancer this year?

    You know, I hadn’t heard that 🙂

  2. uberVU - social comments Says:
    November 30th, 2009 at 9:01 am

    Social comments and analytics for this post…

    This post was mentioned on Twitter by saniac: “They routinely beat up name suppression stories to paint the suppressions as unjustified.” http://www.medialawjournal.co.nz/?p=323

  3. Twitted by dubdotdash Says:
    November 30th, 2009 at 9:49 am

    […] This post was Twitted by dubdotdash […]

  4. 8 Says:
    December 2nd, 2009 at 11:17 am

    Thanks for publishing this Steven! I’ve become increasingly frustrated with media coverage of both recent name suppression cases and especially the Law Commission Report.

    While I appreciate their focus will naturally surround ‘celebrity name suppression’, I wish some discussion would address the topic of how suppression should be available in this country for everyone (ie, including celebrities). Fixing up the framework for suppression (ie, what should replace s140 of the CJA) may go some way towards solving the perceived unfairness in some minds of the availability of celebrity name suppression, or at the very least help educate both the media and public as to when the court will use its discretion to grant name suppression. While I’d do things slightly differently to the LC’s final recommendations, their Report (especially when read with the preliminary Issues Paper) should be commended as having addressed the topic very well.

    As an aside, there was an interesting segment on name suppression featured on Media 7 last week (see TVNZ website, series 3: ep 19). Funnily enough, while the journalist featured there admits he has “looked at the report” he does not go as far as saying he has actually read it… go figure.

  5. Whale(b)oil Slater hooked? « Ethical Martini Says:
    January 5th, 2010 at 8:41 pm

    […] If they were simply reporting the issue, you’d think that they may have mentioned that the Law Commission found that suppression orders are imposed in about 1 percent of criminal cases. And that not all of them involve suppression of names (sometimes, it’s just evidence that’s suppressed). And that it includes suppressions imposed automatically to protect sex victims and child witnesses. And that it includes interim orders that lapse by trial time. (In fact, that’s probably the vast bulk of them – ie they’re not permanent suppression orders. Only about 700 a year are permanent). The Commission conveniently put that information in Chapter 1 of its report. [Fact Suppression…MLJ] […]

  6. Revenge, name suppression and celebrity justice « Ethical Martini Says:
    January 7th, 2010 at 1:39 pm

    […] My real purpose here is to shed some light on the Whaleoil situation from a slightly different perspective and I was prompted to do this by comments in a recent post by the legal academic Steven Price in which he poses a very good question: Which is worse: our name suppression laws, or the media’s coverage of them? [Fact Suppression] […]

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