By Steven | September 15, 2010
70 pages! It took Judge David Harvey that long to establish that Whale Oil (a) had a case to answer for breaching a range of name suppression orders and (b) was guilty.
It’s probably the most comprehensive judicial ruling on of name suppression issues New Zealand has seen; and it may be the first concerning breaches online. But I have to say, I’m not sure Mr Oil’s legal arguments - which varied between the optimistic and the wildly implausible - required such a thorough treatment. On most charges, the case was open and shut.
Here are some of Mr Oil’s Hail Marys:
The suppression law only applies to a “report or account of the proceedings”, which means stories by people who were actually in court and were about what happened in court that day
It only applies to factual news stories, not comments
It only applies to the mainstream media
It can only be breached by mentioning the exact name in the court documents (eg “John Aloysius Smith”)
It doesn’t apply to information on websites hosted overseas
It can only be breached by a publication in one of the official languages of New Zealand (English, Maori and sign language)
It couldn’t apply to his carefully designed picture-clues to the suppressed identities because they were merely “interesting pictures”
The judge pointedly notes that Mr Oil’s lawyer was unfamilar with the leading case on internet publication, and was only selectively interested in the NZ Bill of Rights Act.
Can it really be surprising that a law forbidding “publication” forbids publication to an online audience? That publication occurs in New Zealand even if a NZer’s website is hosted overseas? That a significant part of the offence was committed in New Zealand? That it would be absurd to interpret the suppression laws to exempt commentary, which would include editorials and op-ed pieces?
Still, the judgment offers a wealth of useful and sensible guidance. Privately telling some friends about a suppressed name will not be a breach. Linking to a website that contains the suppressed information may well be a breach in itself. A blogger may well be liable for statements in the comments thread. Blogs have an ongoing quality so that material in successive posts is likely to be read together. Passing information to someone overseas so they can whack it on their website may constitute the offence of “evading” a suppression order. Even password-protected sites are still publishing to those who have access. “Publication” means communicating to an audience. A “report or account” includes any narrative or information relating to criminal proceedings.
The point where I thought it might get close was whether the pictograms and binary code were obvious enough that readers could understand them. But the judge readily concludes that clues to interpretation will be enough. In the end, I’m not sure he had any other choice.
Not surprisingly, Mr Oil is disappointed. He says the decision is extraordinarily far-reaching:
…his judgement now tells everyone that if you hold a piece of a puzzle as to the identity about someone subject to suppression order, then you are vicariously liable for publication because you hold a piece of the puzzle.
I don’t know where he gets this from. I can’t see any liability for merely “holding” a piece of the puzzle, much less vicarious liability, whatever he means by that in this context.
Apparently, Mr Oil is considering an appeal. I wouldn’t recommend it.
Meanwhile, I do recommend the much more interesting discussion about the case going on at Pundit.
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