Simon Power 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 name suppression.
Hear hear. The new test of “extreme hardship” should see fewer defendants getting name suppression.
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:
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.
- 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.
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.
Tags: name suppression
, Simon Power