Judge challenges internet's right to news

By Jonathan Forsey, Associate

First published in The Press, 30 August 2008

In a decision variously described as “experimental” and “extraordinary”, Judge David Harvey this week ordered that internet websites were forbidden from publishing images or the names of a teenager and two men charged with murdering a14-year-old boy in Auckland. Yet their names could be published in newspapers, and broadcast on the radio and television.

The Judge made the unusual move because of concerns that a fair trial could be prejudiced by the availability of information stored on the internet, to which potential jurors might refer. He drew a distinction between information which is stored on the internet, and available for recall through popular search engines, as opposed to publication which is only readily available as long as the newspaper lasts or the television or radio broadcasts are recalled.

The Judge also emphasised 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 republication of information.

Traditionally, potential problems with jurors accessing information have been dealt with by directions to juries not to do so. 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.

Judge Harvey’s decision is certainly novel and 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.

Given the very unusual judgment, the volume of information on the internet about the case is likely to have increased. There is also the fact that searches conducted other than on the basis of the prohibited names will generate hits on stories that relate to the history of the case.

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. This 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.

Whether news media organisations, that have ploughed money and personnel into multi media operations and to maintain extensive archival sources as part of the presentation of information, will challenge the decision remains to be seen.

As the Law Commission has already indicated that it will examine the matter, the judgment will at least provoke an informed debate about whether internet based publication could be singled out as a special case in the way in which it has been in Judge Harvey’s decision. The resulting scrutiny being brought to bear on an area where technology has outstripped the law is to be welcomed.

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.

Case background

The source of the Court’s jurisdiction arose because one of the accused is a young person. The young person is jointly charged with two adults. There is a statutory prohibition against the publication of the name of the young person or any details that might lead to his identification. Because the adult accused had been jointly charged with the young person for some of the offences (though not all), the Judge conducted a hearing in the Youth Court. He exercised his power to allow the media to report the proceedings because of interest in the case. It is not a case of a Judge granting a suppression order sought by the accused.

The Judge highlighted the way digital technologies challenge traditional concepts regarding the availability of information. While there might be media coverage at the time of an arrest, by the time of the trial such reports will have faded from memory and were difficult to find save by trawling through newspaper archives - something that few jurors would attempt. The prevalence of modern search engines and the ease with which information can be collected is a new challenge in this regard. Indeed, it seems an increasing temptation of jurors to conduct their own research.

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