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Internet ruling lifts discretionary curtain

By Jonathan Forsey, Associate

First published in the NBR, 5 September 2008

It’s no surprise that media organisations are challenging the controversial internet suppression order handed down recently by Judge David Harvey.

The Judge raised their ire last week when he forbade internet websites from publishing images or the names of a teenager and two men charged with murdering a 14-year-old boy in Auckland. Yet their names could be published in newspapers, and broadcast on the radio and television.

Regarded as one of the most technically savvy judges on the circuit, Judge Harvey made the unusual move because of concerns that a fair trial could be prejudiced by the availability of information (outside the courtroom) to which jurors can refer. The implication is that jurors could well be tempted to google the internet for names associated with the trial – but far less likely to search newspaper or radio archives for background.

The vexed issue is nothing new but less bold judges have skirted around it in the past by simply directing jurors to resist the temptation to look back on the internet. Such directives are increasingly common.  This decision appears to be an effort to mount a pre-emptive strike by reducing the content that may be available for subsequent searching.

Whether you agree with the ruling or not, at the very least the judgement has prompted an informed debate about whether internet based publications should be singled. The scrutiny is welcome in an area where technology has well and truly outstripped the law.

Ironically, of course, given the furore since his decision, the volume of information on the internet about the case will have increased significantly.

Part of Judge Harvey’s worry is the “viral” nature of internet publication, in that every user is potentially a publisher.   There is a proliferation of blog sites where individuals post commentary on events or present information and invite comment.  The internet was singled out primarily because of its special features as a medium for allowing the storage and republication of information.

Judge Harvey’s decision has already been the subject of widespread criticism on the internet. Foreign based bloggers, in particular, are attacking what is perceived as a restriction on the freedom of expression, which many in the internet community regard as paramount.   New Zealand based internet sites which breach the court order run the risk of being prosecuted for contempt.  Overseas based sites, while breaching New Zealand law, may effectively be beyond reach.

The decision does raise issues for publications which host full copies of printed works on their websites, and also for live-streaming audio and visual material which is archived and capable of being replayed later.   These will have to be edited to comply with the order.  The terms of the order also appear to exclude publication by magazines (limiting publication to newspaper or by way of radio or television broadcast).  The judgment also focuses on the concept of a “contemporaneous” publication being acceptable, raising issues of how long something that is “news” remains so.

The case was heard in the Youth Court because one of the accused is a young person. This means media reports of the proceedings are banned by the Children, Young Persons and Their Families Act 1989, unless the Judge decides otherwise. Judge Harvey was actually exercising his discretion in favour of the media, allowing them into the court, albeit with constraints. He exercised his power to allow the media to report the proceedings because of interest in the case and referred to the need for transparency in his reasons for decision.   It is not a case of a Judge granting a suppression order sought by the accused.

This case is not the first concerning potential prejudice to a fair trial because of archived material stored on the internet.  The Solicitor-General, in December 2007, requested The Herald website remove archive stories about the man charged with killing Emma Agnew.  The Solicitor-General took the view that two articles, one more than two years old, constituted contempt of Court and should be removed.   The Herald website removed the two articles at the request of the Solicitor-General.

With the spotlight again thrown on this area by the decision of Judge Harvey, it is likely that the Law Commission will have to take an in-depth look at the issue and practice in similar jurisdictions, as well as considering the feasibility of separating internet based publications from more traditional forms.  Watch this space.