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A whale of a decision

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.

Topics: Name suppression, NZ Bill of Rights Act | 10 Comments »

10 Responses to “A whale of a decision”

  1. Justin Says:
    September 16th, 2010 at 9:55 am

    I havent braved the judgement yet, but this caught my eye: “A blogger may well be liable for statements in the comments thread.”

    How does this compare to defamation cases. Would a blogger be liable for defamation if a commenter said rather offensive things in the comments thread?

    I am guessing if the blogger was aware of the comment and did nothing to remove it that would/should be a breach (of either suppression of defamation laws). But are we heading to the place where every comment must be moderated on a blog before appearing?

  2. Steven Says:
    September 16th, 2010 at 9:59 am

    Certainly the blogger (and, actually, the ISP) would be liable for defamation once notified if s/he didn’t remove it. If there aren’t many comments (that’s most blogs), the blogger’s probably liable for the lot, even without notice. Same if the blogger acts conspicuously as moderater, thereby assuming a degree of responsibility. But it’s quite possible the blogger is liable as publisher no matter what.

  3. Andrew Geddis Says:
    September 16th, 2010 at 12:08 pm

    “How does this compare to defamation cases. Would a blogger be liable for defamation if a commenter said rather offensive things in the comments thread?”

    I know! Let’s find out!!

    Dean Knight should not win Academic Idol, as he is hiding from the world his conviction for failing to register a dog back in 1997.

    Let the writs flow …

  4. deanknight Says:
    September 16th, 2010 at 9:41 pm

    @AG: I am seeking advice from counsel about your scurrilous accusation!!!

  5. Slating Slater, Or Not | Screaming Lawyer Says:
    September 17th, 2010 at 1:24 pm

    […] First there’s Steven Price on the David Harvey Judgement: “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. . . . 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 and then Otago lecturer Andrew Geddis quoting Plato, Socrates and other opinionated pre-blogging life forms. […]

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