Online reporting banned
I’ve just been interviewed by Radio NZ on the ruling by Judge Harvey that media are allowed to report the names of two murder accused, but that online media can not. The interview should be on Morning Report tomorrow.
Now Judge Harvey is not some fuddy duddy Judge who does not understand the Internet. He is in fact probably the most tech-savvy Judge we have, and he is the author of the main textbook on Internet law in NZ. I actually first met the Judge many years ago through Usenet, the Internet newsgroups.
Judge Harvey seems to be trying to do a middle course between total name supression and no name supression. It is an interesting concept, but one that does raise significant issues.
As far as I can tell he is not worried if potential jurors hear the name on the news tonight or in the newspaper tomorrow, but doesn’t want them to be able to Google the name (and I have just done Google searches on their names) once the trial starts. The issue of jurors doing research on defendeants on Google is a growing problem.
However by banning the names online, this may lead to overseas blogs reporting the names deliberately. In fact overseas newspapers may also do so, as this ruling may be one of the first in the world – to apply only to Internet media.
It also gives local media a challenge. It is pretty obvious the NZ Herald has to remove the name from its web version of its stories. And TVNZ and Radio NZ can not have the names in their web stories. But does TVNZ and Radio NZ etc have to remove the names from the digital version of their audio and video files? They will not be picked up in Google, but are online. Also are there issues with live streaming of their broadcasts?
Blogs may have some issues also, as commenters may have mentioned the names of accussed, but the blog owner may not be aware those names are the names that have been supressed. Oh it goes without saying I will be unimpressed if anyone mentions their names on this blog.
I hear various media are looking to appeal the decision. It is certainly going to be fascinating either way for those of us interested in technology and media law.
August 25th, 2008 at 5:46 pm
The judge is on a hiding to nothing. The web has opened a whole new door on freedom of expresssion and no matter what the judge wants he will be ignored IF the subject of the control is worthy enough. the names of a couple of dead beats from south auckland are not worthy enough, but when it gets to a national figure overseas sites will carry the names. Ill bet there is already a blog somewhere with this decision on it and the names as well.
August 25th, 2008 at 5:48 pm
Digital recordings could also fall under the ban as although a google search doesn’t index audio files (e.g. crawl over the mp3 and use speach software to extract the text), they may well do in the future?
August 25th, 2008 at 5:54 pm
I doubt that the NZ Herald will remove its online stories. When Dewar was charged, there was a time when the charges against him were suppressed yet the news item about the original laying of charges remained online because the suppression was not retrospective.
And I remember the good old days of going into an IRC chatroom with the nick of PGLewis and watching how many people reacted.
August 25th, 2008 at 5:54 pm
I think it’s daft and wrong. It unfairly discriminates against internet-based media outlets. I think you could take this to the commerce commission and get it overturned as anti-competitive.
I don’t think the judge thought this through very well at all – it appears all too much like a standard low-brow knee-jerk type reaction to a perceived problem of jurors doing research. What’s to stop the jurors from reading the paper or watching the news?
August 25th, 2008 at 5:54 pm
Barry, here’s the thing: High Court Judge tells the media whether they can or cannot reveal the names. If the media chooses to defy this, they are ACTUALLY IN CONTEMPT OF THE HIGH COURT.
Name suppression is about trying to protect certain rights of certain parties that are MORE IMPORTANT THAN YOUR RIGHT TO EXPRESS SOME NAMES ON THIS BLOG – because criminal records and jail time could result. So those proceedings had better be done right, and not undermined by the endeavours of earnest little busybodies who believe they’ve GOT A RIGHT.
The whole “I’ve got a right to free speech…” brigade need to learn to butt out sometimes when more important things are at play.
But then, what does a High Court Judge know about anything eh boys?
August 25th, 2008 at 5:59 pm
RRM,
David Harvey is a district court judge, not a high court judge.
August 25th, 2008 at 6:06 pm
Oops! (I didn’t realise the district Courts heard Murder trials.)
My point remains the same.
August 25th, 2008 at 6:10 pm
RRM – the basic pricipal of the justice system is that it be totally open. Its not the court taking procedures in these cases, its actually the society versus the person or body being charged. It is an oxymoron to think that the court can be open to the radio and press but not to the net. I know the net is new and all that, but its simply the next step after print, then radio. Before print everything was word of mouth, then the print system made distribution of information easier and wider, then radio (and TV) made it even wider and quicker. The net is simply the next step.
The judge maybe a learned man, but one cannot separate the net from previous methods of distributing information. He is approaching it from the wrong angle – and I know that he is trying to prevent possible jurors looking things up on the net – but thats to assume people are stupid and dont know right from wrong.
Thats a very dangerous position for the judge to take
August 25th, 2008 at 6:11 pm
Considering the pervasiveness of the internet today, this sort of decision seems to me, on the face of it, ludicrous. Most media outlets are now integrated across the delivery spectrum and forcing them to jump and interupt these processes may make it more difficult than the judge thinks. There was a time when you could get the print herald as large digital scans through a flash viewer online. Is that online media? Is email a photo of the Herald article online media?
As web pages can put a no-scan functionality on pages so that the content can’t end up on google, I would’ve thought that would’ve been a smarter idea rather than this badly formulated and poorly thought out hash. I don’t mind admitting that the problem exists but the solution is not the correct one.
August 25th, 2008 at 6:12 pm
If he wants the defendants to not suffer the consequences of Jurors doing research, he should have invoked a total suppression order.
To suppress some outlets but not others is in reality not any sort of suppression at all. Once the information is out, it’s out.
You can bet that this sort of stunt by the judge will simply serve to make this more media-worthy than it otherwise would have been – it brings even more attention to the case. So the judge will have created the opposite effect to the one he wanted. It worries me that such flawed thinking can come out of a judge.
August 25th, 2008 at 6:14 pm
are these killers the halfwits who killed the halfwit ie ISLANDERS KILLING ISLANDERS (WHO CARES???????) not me , the balance is restorded ie (TINY HOUSE) only worry more islanders IN PRISION (SECOND HOME TO THESE LOSSIERS) the third or forth nation AFTER THE HARD WORKING BRIGHT,lossies
August 25th, 2008 at 6:18 pm
I thought the whole idea of our courts was that the jury deliberates on the case that is presented in court – not whatever hearsay there is outside? If so then I don’t see how jurors should be doing research in any case…?
August 25th, 2008 at 6:22 pm
JSF – Superb!
August 25th, 2008 at 6:23 pm
Maybe the Herald bribed the Judge to do this so they can sell more papers tomorrow? Was there a clip on this on the news tonight?
I agree, juries should evaluate the information presented in the case, not base their opinions on hearsay, so they shouldn’t be doing any research, but trying to ban this from the net a) won’t work, and b) just makes research a little bit harder. They can still buy the paper (and keep it), or go to the library and look up back-issues if they really want to. And the attention this will bring to this case will not help. I’d be surprised if this isn’t the first time world-wide a suppression order like this has been made. It could even make the news overseas. Interesting to see if the Sydney Morning Herald has something to say about it.
August 25th, 2008 at 6:29 pm
as an old hack who finds the blogosphere a fascinating place – I can see what Harvey is trying to do but I cant condone it. Media is media is media. Its like saying the Herald can report the name but the Dom cant cos the Dom will give you a better story.
It is a vexing question though and I wonder if we end up having to sequester juries away for the duration of a trial – seems to be the only way that these days you can guarantee they wont get tainted by the info that is so easily at our disposal in so many ways.
And what about email and text ?
hey you could ask your mates via a text to find out about a defendant and in a short time you would have all the answers you want.
So I understand Harveys reasoning – just think that its bloody impossible and wont actually achieve what he wants… ten points for trying tho – tainted juries are becoming a big problem.
How the hell is the jury that sits in judgement on Tony veitch going to work out whats the go after all the stuff thats avail in all forms of media of which blogs and the net are two?
Roarprawn.blogspot.com
August 25th, 2008 at 6:30 pm
adc, I think you have at last identified the issue. The Judge is not trying to prevent people from doing research. He is making it more difficult for people to do research, thereby making it likely fewer will try, ergo more will be available for jury duty. What is so hard to understand? Why all the wailing and gnashing of teeth.?
August 25th, 2008 at 6:37 pm
I didn’t realise the district Courts heard Murder trials
They don’t. But they do handle pre-trial matters for such charges.
I wonder if we end up having to sequester juries away for the duration of a trial – seems to be the only way that these days you can guarantee they wont get tainted by the info that is so easily at our disposal in so many ways.
I think it more probable that we will go the yankee route and give up on any attempt to prevent a defendant’s previous criminal record coming to light.
August 25th, 2008 at 6:37 pm
RRM>But then, what does a High Court Judge know about anything eh boys?
The judge has ensured that this case and the names of the defendants will be ALL over the internet, with far more attention paid than if he hadn’t tried to suppress some media but not others. If this was his intention, then it worked brilliantly and he could be making a fortune working as a publicist. But if it wasn’t, then it sounds like he really doesn’t understand Internet culture or the media.
The ruling is the judicial equivalent of the EFA. Everyone looks at them and wonders how something so badly thought out could possibly work. They’re full of holes and involve arbitrary rules that leave people scratching their heads wondering how they’re supposed to interpret them. And they seem to be understood and supported only by their sponsor.
August 25th, 2008 at 6:46 pm
But if it wasn’t, then it sounds like he really doesn’t understand Internet culture or the media.
He posted in nz.general! Of course he understands the Internet!!
August 25th, 2008 at 6:47 pm
That’s funny. I didn’t know Christine Caughey was a judge.
August 25th, 2008 at 6:49 pm
This better not screw up my morning report podcast!!!!!!!
August 25th, 2008 at 6:56 pm
Nothing wrong with the intent – i.e. wanting to ensure a fair trial and the absence of an indefinite web footprint in the instance that the charges don’t stick.
the problem is that it’s 2008… not 1908.
information is a instantly, massively and freely exchanged commodity which is replicated, morphed and format and time-shifted from the moment it comes into existence. this suppression order is a worst obsolete, or at best contestable from the moment it is established
August 25th, 2008 at 7:09 pm
Peter>He posted in nz.general! Of course he understands the Internet!!
My dad sends e-mail and surfs the web. But he wouldn’t be able to tell you what “going viral” means. There is a big difference between using the technology and understanding the culture.
I’d expect that without the judge’s order, no overseas media would report this case. With the judge’s order, many of them will. They’ll all be searchable using search engines. So… how could a media and internet-savy judge have expected his order to achieve anything?
August 25th, 2008 at 7:15 pm
I’d expect that without the judge’s order, no overseas media would report this case. With the judge’s order, many of them will.
On what grounds? What importance do the accused have to overseas readers? The suppression order in the Peter G Lewis case was broken only because the defendant was a billionaire in the states. I can’t see anything in the background of the two accused that would motivate anybody outside New Zealand from giving a shit.
August 25th, 2008 at 7:23 pm
OK, I’ll say it for you David.
Ahem. How can you allow one form of the media to report on a case and ban another so that jurors can’t google it, is he saying that its OK to know IF you read the right media on the right day but besides that tough titty your right to access public information must be curtailed? Are only Dominion Post readers allowed to know about things that happen in WGN? Or will we have a few more prosaic criterion applied at whimsy of the PacMan Judge?
I was going to make an anagram that had the words head arse out of pull your of judge but decided not to. DO NOT report that in the print media OK?
August 25th, 2008 at 7:34 pm
A not very cunning Plan:
JUDGE SIMPSON: Now, I know that some of you are simpletons and have minds easily influenced by suggestion, so I have suppressed your ability to go on the internet and perform complex searches that may return the dark and evil history of this man.
SIMPLETON JURY: What?! You mean he has a history of this? String him up! He’s guilty! Throw the book at him!
JUDGE SIMPSON: DOH!
I think it’s a test case that will be used for other types of information to be suppressed. This case is too weeny to warrant this complex effort. Don’t forget where you’re living – Socialist NZ. Bannings and oppression are just going to get worse.
August 25th, 2008 at 7:35 pm
Peter>On what grounds?
On the grounds that a media-specific suppression order seems to be a world first. And because it seems to defy common sense.
A few nights ago, the NZ TV news reported a story from China where a couple of old women were pissed off about some property issue. Could we care? No. Are they billionaires or vacuous celebrities? No. It was reported because they’d asked for a permit to protest, and in reply the Chinese government had sentenced them to re-education.
August 25th, 2008 at 8:12 pm
The judge may well be testing the bounds for this type of behaviour, its still a ridiculous state of affairs.
Make public internet access allowable only by government permit or membership of a freedom loving union such as the EPMU, bwha ha ha ha.
August 25th, 2008 at 8:17 pm
would this apply to digital replicas of newspapers. That is to say whether for example whether Stuff would need to redact the digital replica version of the Dom Post.
Probably not since these replicas are presumably not searchable.
August 25th, 2008 at 8:29 pm
Well, if I ever sat on a jury, I for one, would go out of my way to find what I could about any defendant, regardless of any instructions, from any judge. It is my strong view, that society has a right to know of the background of defendants, when it sits in judgement upon one of its own. Furthermore, the amount of bullshit that is spun in courtrooms and accepted as truth….well, I’ll make up my own mind, thank you very much.
August 25th, 2008 at 8:41 pm
Our court system is back in the dark ages which is why anyone with the opportunity to avoid it does so. Which is why NZ commercial litigation is becoming a relic of history.
What on earth will this achieve? The jurors will know the names of the defendents. They can google anything they want. They can find out all about the case by googling the name of the victim.
It’s bizarre and ridiculous and will achieve absolutely nothing except to increase internet interest in the case by several orders of magnitude. Have judicial foot, will shoot it.
August 25th, 2008 at 8:47 pm
Censorship is stupid.
August 25th, 2008 at 9:24 pm
I look forward to viewing my digital replica of the Herald print edition tomorrow. If it’s not a digital replica (ie, has some bits blacked out or excluded), I wonder if this makes the judge a party to false advertising? :p
August 25th, 2008 at 9:47 pm
Alan Wilkinson’s piece is rather serious.
Common law is an evolving beast that needs precedents to guide us along the way. Because New Zealand commercial litigation is becoming a relic of history, we are not getting those evolving precedents. Nowadays it is done by mediation away from the courts. Comments such as those by Judge Harvey (is he what we used to call a Stipendiary magistrate?) will hasten the sad state of affairs that Alan Wilkinson alludes to.
August 25th, 2008 at 10:55 pm
DPF
It seems to me that such a ruling is the start of a China style ‘filter’ on content available in the ‘NZ Domain’. It would be ridiculously easy to implement a content filter to scan for the names and/or sites you have baned from being accessed via the net.
To me this sounds like yet another step down the murky road of encroaching on freedom of speech and flow of information. However I guess I can always leave the country if I feel strongly about it, we are not detaining dissenters for re-education yet are we?
August 26th, 2008 at 12:06 am
I am currently in Melbourne. I listened to RadioNZ News’ report of this event via their internet streaming service. Did RadioNZ breach the learned judge’s order by broadcasting via the Internet?
August 26th, 2008 at 12:49 am
So, what is the correct definition of ‘online media’? How wide or narrow this is to be defined will effectively determine whether or not an individual is held in contempt of court?
My personal view is that it was a good move on Judge Harvey’s behalf, to either set precedent or at least get Parliamentary attention for possible future reviews or reforms
August 26th, 2008 at 7:32 am
Just did a google search – the names are on the first return when I searched under the name then went search within. And the address is a .co.nz ………………….
August 26th, 2008 at 9:26 am
I’ve named them today in my blog (well not quite, but as good as).
As I said in my blog, I can see where Harvey is coming from but I think his implementation is grossly flawed.
I draw parallels with “Constable A” in the Waitara shooting and point out the utter futility of this action. In fact it’s almost certain to backfire big-time as this watershed suppression ruling attracts the attention of the world’s mainstream media and bloggers.
The suppressed information will soon be all over the web (published by those outside the reach of NZ’s laws) so unless Judge Harvey is planning on ordering Google not to return search results from overseas websites, he’s achieved nothing except to demonstrate how powerless the courts really are in cyberspace.
August 26th, 2008 at 9:28 am
A conundrum in the making
Suppose I am killed by poison, and DPF is arrested and accused of my murder. The blogosphere goes wild, everyone on-line gets in on the act, and 25 million hits are created on the Google gawp.
THEN, during the trial, DPF establishes that he did not commit the murder – someone else did. Three newspapers and one blog, kiwi style, print the revised facts. four hits are created on the Google gawp
David sufferers a bit of a financial set back, and applies for a job. The hiring manager does the ‘normal’ and googles him. only to find – SHOCK HORROR – that the applicant is a MURDERER!!!!
Reasonable NO
Possible DEFINATELY
Perhaps ‘post trial’ will become the norm for when ‘accused’ can be named in ANY media, just to preserve that most basic of our judicial tenets – INNOCENT until PROVEN guilty.
PART TWO
I get a gMail address
Register here as a subscriber
Post the names of the accused
close down the gMail address
WHO gets prosecuted for Contempt of Court?
If DPF is the correct answer, then ALL contributions better be moderated prior to posting in the not too distant future!
WE are a long way away from understanding what we have created!
August 26th, 2008 at 10:16 am
“are these killers the halfwits who killed the halfwit ie ISLANDERS KILLING ISLANDERS (WHO CARES???????) not me , the balance is restorded ie (TINY HOUSE) only worry more islanders IN PRISION (SECOND HOME TO THESE LOSSIERS) the third or forth nation AFTER THE HARD WORKING BRIGHT,lossies”
David, why don’t you remove crap like this? This sort of moronic bigotry does Kiwiblog no favours; it undermines the quality and insight of your writing, and makes it look as though your readers are a bunch of semi-literate rednecks. Which, of course, they aren’t…
I’m all for everyone being able to partake in the conversation, but what exactly does drivel like this contribute to the debate?
August 26th, 2008 at 11:01 am
An interesting debate that may indeed breach a few laws. A pity in itself.
Here’s my view on this.
The judge deserves a lot more respect than he’s being shown here, but I believe his approach is flawed.
cheers
Bernard
August 26th, 2008 at 11:02 am
dave strings – your scenario Part 1 need have no connection to the courts at all. It applies to any kinds of libellous rumours or accusations. But the law of libel applies and remedies under it can be sought.
Bernard, if you think the judge deserves more respect then show why. I see no reason.
August 26th, 2008 at 12:05 pm
Interesting decision. Can sort of see it from a free speech/justified limitations aspect, in that the internet is a far more open form of media in regards of bloggers and commenters, the justified limitation being reduction of possible hate speech (JSF2008 shows so brilliantly, it incites me to smack their smart ass mouth for spouting such sheer ignorance).Whereas the traditional form of media are limited by a historical need to follow the rules and cover their asses, and there just isnt the opportunity for any nutter to leak the names.
The law always has to be updated, and the common law is the easiest way to do it, but maybe because it will be so decisive and seen as discriminatory (not saying it isnt though, I’m just not sure) this isnt the best way to do it.
August 26th, 2008 at 1:01 pm
the learned Judges decision defies reality All he has done is assure that the matter has recievd maximum exposure. If he had wanted to protect the alledged then he could have issued a blanket suppression order. What he did was issue a Claytons suppression order.
IMHO the days of masonic secretcy of the Courts are a 20th Century concept and have no place in an open and informed society.
August 26th, 2008 at 2:05 pm
here we go – he made the Sydney Morning Herald as I predicted.
http://news.smh.com.au/world/nz-judge-bans-net-naming-of-defendants-20080825-422f.html
I wonder where else this has been reported overseas…. talk about turn it into an international event.
That article was copied to
Sydney Morning Herald
Nine MSN
news24.com
slashdot
Washington Post
and a zillion others… just search for “NZ judge bans Net naming of defendants”
gee that one really worked.
August 26th, 2008 at 2:29 pm
not to mention all the links of US and other bloggers deliberately posting the names because they can.
I won’t post links here out of respect for DPF, but there are plenty – googlers will have no problem finding these guys.
August 26th, 2008 at 4:36 pm
DPF, you have explained it well, I can understand what the judge is trying to do, but I think it is futile. I see the point that prior to the internet, having your name published in the paper once might have been the end of the matter, there is no way that people could easily access it from then on on a whim or a suspicion. Is there any way around this problem? The best solutions should come from the internet-savvy crowd themselves.
Maybe there is now just extra incentive to not get into court, eh?
August 26th, 2008 at 5:14 pm
Following on from Allan Wilkinsons comments especially in the commercial area there is a massive increase in arbitration and mediation to the extent that case law will become more and more outdated. In the future young law students wont have any recent case law to refer to as most out of Court stuff is subject to confidential agreements so only the parties know what went on behind closed doors.
In a functioning civil society this must be viewed as a serious problem.It has been bought about by a toxic combination of bad laws interepreted poorly by the judicary so litigants have no faith in the Court system This couple with the pathetic delays in getting cases to Court and the costs means that the free market prevails. IE the customers take their business elsewhere.
Sadly because we have a Parliament and Judicary that doesnt understand or recognise the concept of the customer and believes the system is there to serve them and not the customer the situation will continue
August 26th, 2008 at 7:24 pm
As gd and Tauhei have confirmed our court system is failing disastrously.
In my opinion, by far the best solution is to allow private enterprise to run courts and compete with the incompetent bureaucratic public courts – and allow customers to choose which to use.
I have seen no good or valid reason to prevent this happening. The reforms that would ensue from a customer-focussed competitive approach would be hugely beneficial.