Govt announces changes to name supression laws to make it harder.

October 5th, 2010 at 12:20 pm by David Farrar

has put out a statement and Q+A here:

Under the proposals, the court will only be able to make an order prohibiting the publication of a defendant’s name, address, occupation, or other details likely to lead to their identification, on the following grounds:


  • Where there is a real risk of prejudice to a fair trial.
  • To prevent undue hardship to the victims.
  • Where publication would identify another person whose name is suppressed by order or by law (e.g. a victim).
  • Where publication would endanger the safety of any person.
  • Where publication would cast suspicion on other people that may result in undue hardship.
  • To prevent extreme hardship to the accused and/or people connected to the accused.
  • Where publication would be likely to prejudice the interests of the maintenance of law, including the retention, investigation, and detection of offences.

Mr Power said the legislation would make it clear there is no presumption of extreme hardship solely on the grounds that an alleged offender is well known.

“Being famous is not a good enough reason to be granted .

Hear hear. The new test of “extreme hardship” should see fewer defendants getting name suppression.

Also announced:

Mr Power said there will also be substantial increases to the penalty for breaching suppression orders, in accordance with the Law Commission’s recommendations, including:

  • For individuals, doubling the maximum term of imprisonment from three months to six months. Judges will also be able to impose a fine of their discretion in lieu of imprisonment if the circumstances warrant it (the current maximum fine is $1,000).
  • Increasing the maximum fine for organisations from $5,000 to $100,000.
  • Introducing a new offence to capture New Zealand-based Internet service providers or content hosts who do not remove locally hosted suppressed information which they know is in breach of a suppression order, and who fail to block access or remove it as soon as reasonably practicable.
  • These are obviously a response to Cameron Slater. I will be carefully scrutinising the proposed law around the liability for content hosts. There are all sorts of issues, such as how do you determine which someone “knows” they are in breach. This should only be triggered if (for example) Crown Law have actually advised of the breach, rather than just any member of the public.

    Also the release is misleading to say the current penalty is a maximum three months imprisonment. There is no imprisonment option at present for most name supression breaches – it only exists for identifying a child witness.

    I think they are over-reacting with six months jail as a maximum penalty merely for name suppression breaches. I agree the current maximum fine at $1,000 is inadequate, but considering these are strict liability offences, I would prefer imprisonment remains an option only for contempt, or for identifying child witnesses.

    Mr Power said the Ministry of Justice will continue to consider ways of helping the media to comply with suppression orders, including the development of a national register of suppression orders.

    “I see merit in a register. But there are issues that need to be worked through, including who has access to it, the cost of running it, and the practicalities of keeping it up to date.

    I strongly support such a register. And if Internet content hosts will be liable for breaches, then there needs to be such a mechanism where they can verify is content complained about is in fact in breach.

    Under the Q+A:

    Will the media be allowed to stay in court when the court is closed to the public?

    The right to a public hearing lies at the heart of open justice, and closing the court to the public should be used only as a last resort where a high threshold is met. The grounds will be specified in legislation, and include matters such as: it is required to protect the security or defence of New Zealand; or it is necessary to avoid endangering the safety of any person.

    Even where the court is closed, legitimate media will generally be able to be present. Legitimate media will be defined to cover members of the media subject to a code of ethics; and the complaints procedure of the Broadcasting Standards Authority or the Press Council.

    Will media be able to appeal against a suppression order?

    Legitimate media will be given standing to appeal against a decision in relation to a suppression order.

    This is a big issue. I hate the term “legitimate media” and frankly resent it.  Also the Press Council can consider complaints about media who are not members, so drawing aline may be difficult.

    I fail to see why the fuck so called legitimate media will be allowed to stay in a closed court, but not a blogger. Both will be giving their words to the court not to publish, and face sanctions if they break that word.

    But the real irony, is that 99% of “leaks” about name suppression come from “legitimate media’ reporters. How do you think, the real identities get out.

    The Cabinet Paper is here.

    The law change is a step in the right direction, and will make name suppression rarer and harder to get. However there are some undesirable aspects to the proposals also – both with the chilling effect of potential jail terms, the potential liability for Internet content providers and the so called “legitimate media” distinction.

    I’ll certainly make submissions to the select committee on the bill when it appears, but also am going to suggest that a workshop/seminar to discuss the proposed law changes be arranged where Internet, media and legal people can discuss them, and identify fish hooks. I think most people agree on the intent, but it is important to minimise unforeseen consequences.

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    26 Responses to “Govt announces changes to name supression laws to make it harder.”

    1. Repton (769 comments) says:

      This is a big issue. I hate the term “legitimate media” and frankly resent it.

      Maybe you should put together a bloggers’ code of ethics?

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    2. Jack5 (5,137 comments) says:

      The Whale did his bit to bring this issue up.

      Too bad about the tougher penalties. Time for the Whale to resurface as Ballena on some Latin-American based blog – in English and aimed at NZ.

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    3. krazykiwi (9,186 comments) says:

      Call me a doomsayer… as much as I like the thinking around these changes, I can see this mechanism being used as a wedge to begin regulate blog content. Just you watch DPF … you’ll be held liable for the potential breaches made by your commenters

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    4. Brian Smaller (4,023 comments) says:

      So what stops someone telling some guy in Outer Mongolia and he puts the suppressed information to on his blog or website?

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    5. davidp (3,581 comments) says:

      There is a sense of pre-Internet futility about the paper. How long before the list of suppression orders turns up on Wikileaks? And the restriction of controls to NZ ISPs and NZ hosted sites is necessary obviously, but why bother? They’re still trying to restrict information in an age where information wants to be free and can be copied around the world in the blink of an eye. Like, does anyone in NZ not know the identity of the “entertainer” who rubbed his penis over a 16 year old girl’s face? I doubt it, but for some reason his identity can’t appear in a NZ newspaper or on a NZ hosted web site.

      And what about the PDF itself? It’s a scan of a paper document. Why not just place the original source document online? It is just another pointer to pre-Internet people trying to keep up with the modern world but not quite understanding it.

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    6. theodoresteel (91 comments) says:

      What is the justification for not giving a blanket ban to most accused until they have been found guilty? I admit I haven’t thought this through, but being accused of a crime can be pretty damaging, especially as media are more likely to report the charge than it being dropped.

      Surely innocent until proven guilty supports name suppression for most accused, up to the point where they are found guilty at which point I see very little right to name suppression unless it would directly and obviously identify a victim who may want protection.

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    7. Mr Gronk (45 comments) says:

      @Brian Smaller, that was my thought (or bloggers arranging for overseas hosting themselves). I don’t suppose New Zealand yet has the stomach for a national firewall. At least, I hope not.

      A couple of other questions come to mind.

      First, how effectively could the “endanger the safety of any person” criterion be used to defeat the purpose of tightening up suppression criteria?

      Second, concerning the “legitimate media” thing. I appreciate DPF’s standing up for bloggers. But considering any member of the public with internet access is a potential blogger, wouldn’t that defeat the purpose of closed hearings altogether, if all someone has to do to get in is show up and claim to have a blog somewhere? I wouldn’t look forward to the establishment of a national register of authorised bloggers. Or do people suggest that anyone who bothers to show up should be permitted to enter a “closed” courtroom, provided he or she promises to the court to keep his or her mouth shut?

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    8. krazykiwi (9,186 comments) says:

      DPF, a small and lamentably off-topic point: This is the first post title I’ve ever seen you punctuate with a full-stop :)

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    9. tvb (4,431 comments) says:

      Name suppression actually caused hardship on others who are unfairly the subject of rumors. Like Middle aged businessman in Rotorua charged with sex offences. So every middle aged businessman in Rotorua has to deny it is him. That is what I dislike most about name suppression.

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    10. Brian Smaller (4,023 comments) says:

      Where publication would endanger the safety of any person.

      I bet this one is used to suppress names of kiddly-fiddlers who think they may get beaten up.

      “Being famous is not a good enough reason to be granted name suppression.

      I will believe this when I see it.

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    11. Rex Widerstrom (5,354 comments) says:

      Mr Power said the legislation would make it clear there is no presumption of extreme hardship solely on the grounds that an alleged offender is well known

      Righto. There’s quite a few well known people I’m less than enamoured with. So all I need to do to ruin their careers (and possibly their entire lives) is to concoct enough evidence to get them charged with an offence for which there will always be some lingering doubt of guilt even if they’re later acquited, or even if the charges are dropped. Dishonesty offences are good; sex offences even better.

      Then it’s just a matter of finding a sloppy or prejudiced copper (maybe he harbours the same irrational dislike I do) and bingo, an arrest which – regardless of the outcome – will see a certain sector of the population muttering “he got away with it” or “where there’s smoke”, or challenging the person to justify their acquital every time they appear in public.

      Well Simon Power, as a “well known person” yourself I hope some lowlife accuses you of such an offence. I’m sure you won’t mind the after-effects.

      Meanwhile Brian Smaller proves my point:

      Where publication would endanger the safety of any person.

      I bet this one is used to suppress names of kiddly-fiddlers who think they may get beaten up.

      This law applies to people accused of a crime, not those found guilty. Accusations of “kiddy fiddling” are regularly leveled in custody cases and in other situations. The accused can be entirely innocent (as indeed can anyone accused of anything).

      But hell yes, let’s not stop at just ruining their lives by naming them before they’re found guilty. Let’s just get ‘em killed. Pillock.

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    12. adze (2,126 comments) says:

      @tvb
      On the other hand, an innocent middle-aged businessman in Rotorua loses his business and access to his children on being charged with a sex offence… even after being found not-guilty (coz, y’know, where there’s smoke, there’s fire…).

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    13. John Gibson (295 comments) says:

      “These are obviously a response to Cameron Slater.” – adding fuel to the mans ego. As for squealing about not being classified as “legitimate media” : there are a huge number of people who neither know nor care about “blogworld”. Accept that bloggers will always be niche players.

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    14. PaulL (5,987 comments) says:

      Looks to me like Power is leaving an obvious loophole:

      Legitimate media will be defined to cover members of the media subject to a code of ethics; and the complaints procedure of the Broadcasting Standards Authority or the Press Council.

      You’re saying that bloggers can already be subject to the BSA, so only gap is a code of ethics, as Repton is suggesting.

      Maybe time for the bloggers union to reform? With a code of ethics, and a certification. Not in name only, but as an actual organisation that the higher profile bloggers who’d like to see themselves as media join. Then they can go to court, if they want to.

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    15. John Gibson (295 comments) says:

      “I fail to see why the fuck so called legitimate media will be allowed to stay in a closed court, but not a blogger. Both will be giving their words to the court not to publish, and face sanctions if they break that word.”

      Where does the court draw the line when it comes to determining the definition of “legitimate media” ? Should a retired chap from Tauranga maintaining a Blogger blog followed by a few cronies be classified as “legitimate media” ?

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    16. John Gibson (295 comments) says:

      PaulL – can’t really see bloggers wanting to be part of a union or subject to a code of ethics. Bloggers are Walter Mitty types who imagine themselves as freedom fighters , not bound by the constraints of the “legitimate media”. They want the privileges of “legitimate media” without the responsibilities.

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    17. Whaleoil (767 comments) says:

      Judge Harvey said in his judgement that blogs WERE legitimate media, far be it from me to argue with a Judge.

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    18. MarkF (102 comments) says:

      Re,

      “I see merit in a register. But there are issues that need to be worked through, including who has access to it, the cost of running it, and the practicalities of keeping it up to date.”

      Is not a register oxymoronic? Surely it contains the names of suppressed identities and is “published” on the internet, ergo it is in violation of itself?

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    19. lastmanstanding (1,297 comments) says:

      The proof of the pudding will be whether the Solicitor of Remuera is dealt with in the same manner as the rubbish collector from Otahuhu.

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    20. backster (2,174 comments) says:

      Congratulations to Whaleoil and to those who have supported him. At last we have a Minister who is trying to overcome some of the inherent faults in the Justice System.

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    21. tvb (4,431 comments) says:

      One of the grounds for suppression is where publication would cause “SUSPICION on other people and cause hardship. I do not understand this. It is SUPPRESSION that causes hardship through suspicion that unfairly falls on others.

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    22. Redbaiter (13,197 comments) says:

      This latest suppression is a politically motivated fraud.

      Who judges the judges???

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    23. dog_eat_dog (782 comments) says:

      I’m not trying to cause DPF any headaches, but the irony of this post now being the most recent one is delicious.

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    24. dimmocrazy (286 comments) says:

      Another fine example of the slippery slope to totalitarianism. In this sort of issues there simply is NO grey area available, and any attempt at creating it requires ever more regulation and discretion, thus supporting the slow march to “big brother”.

      Open and accessible justice must be the basis for a country operating under the rule of law. While it may be harsh for a minute fraction of victims and/or those charged, the principle of openness must be strictly and relentlessly adhered to.

      The true solution in my view lies in creating or supporting the possibilities to seek redress for legitimate grievances that arise from the necessary openness. For example: create the possibility for those charged to sue the police for negligence in laying charges.

      Another aspect that has only been poorly researched is the question how much damage openness does to victims if the actual court process is undertaken more rapidly and professional, there is just no data to support the assertions that underpin the rationale for the current rules.

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    25. Jack5 (5,137 comments) says:

      As a matter of interest, does anyone know whether the “John Gibson” who posted above from 1.50 to 2.17 is the Professor John Gibson of Waikato Uni?

      As for point he and Whale discussed about “legitimate media”, why do we need such a definition at all. Just let anyone take note s in court.

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    26. Mark (1,488 comments) says:

      There is a dichotomy between the media’s argument of everyones right to know and the presumption of innocence. Is the fact you are charged with a criminal offence a licence for the media to conduct a pretrial examination of your guilt or innocence more often than not without any right of reply.

      Personally I am not sure which way is best. No name suppression or everyone getting name suppression

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