Suppression Orders and the Internet

November 17th, 2009 at 7:29 am by David Farrar

The published yesterday a report and recommendations to Government on suppression order. One chapter deals with the , which I will talk about in more detail. First the major recommendations:

  • starting point for considering publication of evidence and names should be a presumption of open justice
  • suppression should only be used in exceptional cases where there were compelling reasons
  • grounds on which suppression may be granted need to be clarified and tightened
  • development of a national register of suppression orders should be advanced as a matter of high priority.

These all seem good and sensible moves to me. The use of suppression orders has been growing, and they should be the exception, not the rule. Having tighter criteria is a good step in the right direction.

I am especially pleased to see the recommendation for a register of suppression orders. It is very difficult to sometimes know what has or has not been suppressed. And this is a complaint not just from me, but from many in the media.

With regards to the Internet, they recommend:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.

The wording here is somewhat vague.  Under the best case scenario this is not greatly different from the status quo. ISPs already have an implicit obligation to remove material if it is in breach of a suppression order.

But what has not been defined is is what they mean by carrying information, and what they mean by “become aware”. It is one thing to require an ISP to remove material hosted by that ISP. It is quite another to require them to try and block information from other sources.  That would be highly undesirable, plus it won’t work. ISPs should be responsible (once notified) of material on their own networks, but not be ordered to block overseas sites such as Wikileaks etc.

What constitutes bringing the information to the attention of an ISP will need clarification also. I have no problem with an ISP having to remove material upon official request by the Solicitor-General and Crown Law. But just having a member of the public allege hosted material breaches a suppression order should not be enough. The ISP is not competent to decide what is or is not a breach of a suppression order – hence it should be an official agency that has to make the request.

So overall the main recommendations look to be a move in the right direction. The recommendation relating to the Internet is too vague to be able to say for sure at this stage.

In a fit of good timing, there is a seminar on the 3rd of December where some of these issues can be discussed and debated.  The seminar, titled R v The Internet, is hosted by , the Law Commission and the .

The seminar is at Te Papa, and has an impressive line up of speakers, including:

Hon Christopher Finlayson, Attorney-General
David Collins QC, Solicitor- General
Tony Smith, Dean, VUW Law School
Steven Price, Barrister & author of Media Minefield
Robert Lithgow QC
Brent Edwards, Media Committee, EPMU
Warren Young, Deputy President, Law Commission
Judge David Harvey
Sinead Bouchier, Group Online Editor, Fairfax
Ursula Cheer, Associate Professor of Law, University of Canterbury

I’m also taking part in one of the panels. I think it will be a fascinating day. It is intended for legal, media, and Internet professionals, and anyone can register to attend for $100 + GST. You can also apply for a discounted rate.

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22 Responses to “Suppression Orders and the Internet”

  1. billyborker (1,102 comments) says:

    IMHO there should be a simple set of rules.

    Everyone gets name suppression until proven guilty.

    After conviction, no one gets name suppression unless there are compelling reasons to protect a child victim or similar.

    If no conviction, name suppression is permanent.

    What’s wrong with that, other than its simple?

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  2. db.. (80 comments) says:

    What’s wrong with that?..
    The very long interval between charge and hearing compounded by repeat offending during that interval.
    Simple isn’t it.

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  3. billyborker (1,102 comments) says:

    What evidence to you have of repeat offending between charge and trial by those with name suppression? Is it greater or lesser than those without name suppression?

    I agree the delay between charge and trial is often too long, but that is a different debate to this one.

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  4. Inventory2 (10,267 comments) says:

    Why should we be surprised that the Council for Civil Liberties is opposed to the Law Commission’s recommendation to toughen up name supression laws. It is in the C4CL’s DNA to oppose ANYTHING which might make criminals have to be more accountable for their actions.

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  5. Grant Michael McKenna (1,159 comments) says:

    I think that the law commission is on the Money on this one.

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  6. Inventory2 (10,267 comments) says:

    Grant – I completely agree. The recent case of the rapper, nay, singer, nay, “entertainer” convicted of sexual offences against a 16yo girl suggests that the playing field has tilted far too far in favour of offenders.

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  7. Elijah Lineberry (306 comments) says:

    In view of the lineup of Trades Unionists, National party politicians, ‘also-ran’ Barristers and other non entities (excluding your good self, David, naturally) can I apply for a 100% discount? (someone would pay money to listen to Findlayson!??!?)

    Or what about paying me money to attend? …normally when Collins is working (trying to convince 12 ordinary folk the Police fitup is genuine) they receive lunch and payment.

    http://www.nightcitytrader.blogspot.com

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  8. Mr Nobody NZ (389 comments) says:

    Billy, I agree 100% with you.

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  9. davidp (3,576 comments) says:

    >it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable

    The name of the “kiss my balls” sex offender with name suppression is in the history page of his Wikipedia page. The Law Commission thinks it should be an offense for an ISP to fail to block Wikipedia.

    The Internet that we’ll be able to access in NZ is going to be significantly smaller than the one everyone else (‘cept Chinese and Saudis) get to access. Even so, it probably won’t be enough to stop us finding out the names of musicians who rub their penises on the faces of 16 year old girls, doctors who fail to use gloves when doing cervical smears, or retired MPs out to defraud.

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  10. MT_Tinman (3,102 comments) says:

    Name suppression, among other things, allows the police to be lazy and simply file charges without proper investigation or consideration knowing that they won’t get sued if the charges are not supported by the evidence because the accused had name suppression.

    It also allows the slime to do their usual trick of sensationalising the initial charges then dropping all reporting if charges are dropped or the accused ids found not guilty.

    Drop ALL name suppression, make it compulsory for media outlets reporting charges to give not guilty or dropped charges the same level of publicity and allow, in exceptional cases only, judges to order total suppression of ALL facts.

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  11. MikeE (555 comments) says:

    How could you have a register of supression orders without that register in itself breaching the supression orders .

    [DPF: Heh that is one of the issues. Either you restrict access to it, or you write up the supression orders in the register without naming the person they apply to]

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  12. thomasbeagle (77 comments) says:

    Name suppression is doomed in the Internet enabled world.

    I found out the name of the entertainer on Facebook, Kiwiblog, and Twitter. I wasn’t even looking for it. You can also find details of the offence in the edit history of a certain page on Wikipedia.

    It’s technically impossible to block information of that sort on the Internet (for a start you’d have to disable access to every user-generated content site in the world). We’re just going to have to get over it.

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  13. Brian Smaller (4,007 comments) says:

    I agree – it took me about ten seconds to find out who the ‘entertainer’ was. That included time spent sipping coffee. Suppression is history now. You cannot get that particular genie back in the bottle.

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  14. tvb (4,327 comments) says:

    Sir Geoffrey Palmer made a comment that suppression orders may be justified in cases where rumors may be damaging. Surely this is a misprint. One of the biggest criticisms I have of these orders is they START rumors with all sort of innocent people being accused of something. They cannot stop the grapevine and frequently cause more harm than good.

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  15. wreck1080 (3,858 comments) says:

    I can see the argument where a high profile persons conviction/name publication would effectively mean a greater punishment than for others doing the same crime.

    But, then they chose to be a high profile person, and should be aware that this is the case.

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  16. annie (539 comments) says:

    The internet site blocking proposals are just silly, not to mention 1984-ish. Block Facebook? Wikipedia? Twitter?

    Besides, those sites could be accessed anyway by using a proxy server overseas. Unless of course the government monitors the content of all internet traffic for signs of illegal activity, which is about the time we should all jump ship for a country with a greater respect for freedom.

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  17. tristanb (1,126 comments) says:

    It sounds like the Law Commission have little idea how the internet works. They talk about “ISPs” – I think of Telecom, Orcon, Ihug etc. How many people have their page hosted on a New Zealand ISP?

    Kiwiblog traceroutes to inspire.net.nz, so maybe DPF’s got something to lose, but many will be hosted on google or another overseas server. In the case of the “famous” “musician”, I think Facebook status updates helped spread the word how our 30-something superstar stuck his P in some 16 year old’s cheek. As noted here previously, his Wikipedia page had been altered (although reverted because of the “unverifiable” nature of the claim.) Those changes are still present in the article history.

    They state “…fail to block access to it…” – so they want all ISPs to block Facebook and Wikipedia? They’re getting the voluntary “child porn” blocker set up, so it won’t be hard to add whaleoil, kiwiblog, gpforums, punkas, vorb, trademe, googlegroups, wikipedia, facebook, bebo and blogspot to the list. I guess all those pedos arguing ‘slippery slope’ about the nationwide filter were right.

    They need legislation stating that blogs and webforums are not news publishers. Blogs and webforums should be treated as private conversation in a public place. News websites can stick to the suppression orders, but it’s unfair to block all avenues of conversation amongst our country’s citizens. We don’t want to become like China (or PC, fundie, trashy Australia).

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  18. cha (3,935 comments) says:

    Wikipedia is being sued for publishing the names of two convicted killers. Wolfgang Werlé and Manfred Lauber killed German actor Walter Sedlmayr in 1990. They were convicted of the crime in 1993 and sentenced to prison, and recently released. Under German law, publishing the name of a criminal after he has served his sentence is considered an undue infringement of privacy, and is illegal. The German Wiki removed the names of the killers off the page discussing the murder but the English language version of wiki, based in the US and operating under the First Amendment, has not. Now the killers’ lawyer has sued the Wikimedia foundation to get them to remove the names.

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  19. Russell Brown (405 comments) says:

    Grant – I completely agree. The recent case of the rapper, nay, singer, nay, “entertainer” convicted of sexual offences against a 16yo girl suggests that the playing field has tilted far too far in favour of offenders.

    Well, one offence, and a rare and fairly creative one at that (“performing an indecent act with intent to insult”), for a momentary action at 3.30am in an alley, where he seems to have had cause to believe he was getting a consensual blow job from the complainant’s companions. And of which he was discharged without conviction.

    Seedy and drunken, certainly, but I’m not surprised the judge was persuaded not to ruin a career over it.

    I gather that an original, more serious, charge was withdrawn upon presentation of security camera evidence that showed the offence could not have taken place.

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  20. Rex Widerstrom (5,349 comments) says:

    I’ll bet anything anyone likes to put up that none of the Law Commissioners have ever been through the expereince of being wrongfully accused of a crime, having their reputations dragged through the media (including not just reportage but commentary from people whose hobby seems to be schadenfreude), and then being told “Whoops, sorry about that” when it all collapses.

    Clearly neither have you, DPF, or you could see what’s wrong with a proposal that offers less, not more, protection to such people. Accusations leading to arrest can be made for all sorts of reasons – from incompetence to malice to mistaken identity – and until tested in a court we give lip service to the idea that the accused is still innocent.

    But the media have long since abandoned whatever belief they might once have had in that tradition. Now they skirt defamation by ensuring the use of words like “alleged” and “claimed” while the story itself is subliminally (but not subtley) screaming “nudge, nudge, we both know he done it or he wouldn’t have been arrested”. Why else do they often approach neighbours, family members, high school sweethearts and postmen of the accused, who all express surprise that “he done what he did”?

    Trouble is, in some cases, he didn’t. As one man accused of a particularly despicable crime, who had the charges dropped by prosecutors once their whole house of cards collapsed, asked the judge who formally acquitted him – “Thanks. Now where do I line up to get my reputation back?”

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  21. Rex Widerstrom (5,349 comments) says:

    MT_Tinman suggests:

    Name suppression, among other things, allows the police to be lazy and simply file charges without proper investigation or consideration knowing that they won’t get sued if the charges are not supported by the evidence because the accused had name suppression.

    Oh if only that were true!! I’d be writing this from a beach chair in the Bahamas, not on a coffee break between deadlines.

    Alas “public officers” including the Police are indemnified from being sued for incompetence, malice or malfeasance in the performance of their duties. Sure you can sue the Crown and, depending on where you live, you might get some money. New Zealand has been reasonable about paying out, other jurisdictions (most states in Australia, for instance) pay little or nothing.

    I believe there is some UN covenant (which Western governments just love signing, of course) which actually obliges governments to compensate the wrongfully accused and imprisoned, but most choose to “overlook” that clause.

    Turning around your suggestion, however, I’d strongly support Police and prosecutors being personally liable where gross incompetence or any hint of malice was detected in their pursuit of a prosecution. It’s called accountability. The rest of the world lives with it, why shouldn’t they?

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  22. backster (2,141 comments) says:

    Fear of publication of name used to be a major deterrent to the commission of crime. Activism by Judges and pressure from Socialist organisations has largely removed that deterrent. Even worse has been the suppression of otherwise admissible and relevant evidence on the grounds that it might be prejudicial to the defendant.(thats the point of prosecution testimony). The proposals seem to be a step in the right direction.

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