This blog can reveal that [deleted by DPF as post linked to has now deleted the name] was arrested last Thursday and charged with indecent assault. The charges relate to multiple occasions where [name deleted], while while under the influence of alcohol, indecently assaulted a female victim who was known to him. Particular details regarding the incidents are being withheld to protect the identity of the victim.

The name of the alleged victim is automatically supressed by statute, specifically s139 of the Criminal Justice Act.

What surprised me, was reading the comments (which are now deleted but stayed up for a fair while) in which the person charged commented and said:

In case you are curious what happened: I got drunk at my flat some time ago, and groped [name of victim]‘s breast. I was too drunk to remember what happened, but when I discovered what had happened (through being told the next morning), I sent her an apology via text. As far as I was concerned, that was the end of the matter, and this person has come around on to my flat since then, with nothing untoward happening. The person then, completely out of the blue, decided to press charges. No, I have not plead guilty: having received diversion means the process does not get that far, and this does not constitute a conviction. I have complied fully with the police, and I believe (hopefully) that that is the end of the matter. So there you are: I got drunk and groped a breast, and apologised afterwards. That’s all there is to it.

I was staggered that the person charged named the victim. Not only is it illegal in itself, but it could have the Police decide not to offer diversion.

But then even more unusually, the victim commented under her own name:

I am the victim. Being drunk is no excuse. I did not press charges out of the blue but rather agonised over it for two weeks, whilst my anxiety disorder spiralled out of control and I suffered nightmares. As a friend, who I felt I had shared close times with, I was saddened and disappointed that [name deleted] was not sorry. A text is not an apology; facing your victim, accepting responsibility (not blaming the booze) and saying sorry sincerely is an apology. Getting alcohol counselling shows you are sorry. Bitching and moaning and getting revenge is not sorry.  FYI – you cannot get a diversion unless you admit that you have done it ie you are guilty.

Now this raises an interesting question. Is it illegal for a victim to name herself? The Act says a victim can apply to the court (if aged over 16) for their name to longer be suppressed, but in theory I would say naming outing yourself could be an offence.

And does the victim naming herself effectively let [name deleted] off the hook for doing so?

It basically finds that the Ministry of Justice staff need to fully read each and every judgement to check if aspects of it should have their names supressed, rather than just rely on the Judges ticking the right box to indicate name suppression applies, which will indicate so by way of a large banner at the top of the judgement.

In 11 cases (out of 1,500) Judges neglected to tick the right box, and hence judgements appeared without victims names supressed.

The main recommendation of John Marshall QC is that Ministry staff no longer rely on whether the banner appears or not, but read the judgements in full as they are legally obliged to make sure the law is complied with even if a Judge has not indicated it to them.

This is probably the right thing to do, but a bit of a pity as it means that the judgements will no longer be able to be processed by a “web monkey” (my term), but by fully qualified lawwyers, which is a bit of a waste of their talents. It would be nice to think one could just rely on Judges getting it right.

Of course one has human error, but I wonder if one could program the technology to alert a Judge if they have not ticked a name supression banner box, based on say a word search of various offences.

Anyway that is not the major foccus of this post. It was this comment by Mr Marshall:

Serious consideration should be given in discussions between the Ministry and the judiciary to changing the default setting on the Judges’ IT system to “N” = Not to publish

I think that would be a very bad steop to take. the default setting should be to publish.

A leading political figure has given evidence about allegations of dog-napping and assault on a street in an upmarket suburb.

The man, his ex-wife and his new partner cannot be named because of strict suppression orders. Even the two dogs have name suppression.

How silly. Did the dogs ask for name suppression?

Barry Hart was rebuked by Judge Charles Blackie in Manukau District Court on Wednesday for telling the Herald on Sunday that the name of a man charged over a cocaine smuggling ring had been suppressed.

Hart told the court the incident had been a misunderstanding and he had been acting in the best interests of his client.

Surely this is a disciplinary matter? Or does the Law Society not have a problem with a lawyer inventing fake supression orders and lying to the media?

In January a group was charged in connection with the importation of 3kg or $500,000 worth of the Class A drug. The paper approached Hart’s client on a Friday and later checked with the court to ensure he did not have name suppression. The next day, Hart called and said his client had interim name suppression after an appeal at Manukau District Court.

In fact, Hart filed an appeal the day after the report was published – with the name removed. He lost, but after an unsuccessful appeal to the High Court, the full case for suppression was heard at the district court this week.

This appears to be an absolutely blatant lie. And worse, it has suceeded. If there was a register of supression orders, then the Herald on Sunday would have known Hart was laying, and could have legally published the name of his client.

This also reinforces the need for blogs to have the ability to easily check if a supression order exists. Under a proposed law change, we will face criminal liability for not removing the name of someone with name suppression, if we have been alerted to it. Now this would allow lawyers such as Mr Hart to tell a blog owner that the name of their client is suppressed and must be removed, and the blog owner will feel obliged to comply, even if the lawyer is lying.

The proposed law should be amended so that a blog owner only has to remove a name, if the request comes from an official source such as Ministry of Justice or Crown Law.

This article shows that defence lawyers can not be trusted to be truthful about whether their client has name suppression. If this is unfair to all the other defence lawyers out there, I’ll retract it once I read that some of Mr Hart’s colleagues have filed a disciplinary complaint against him.

The television star who performed a drunken sex act on a four-year-old continues to be employed by at least two big New Zealand companies.

The comedian, whose name is suppressed to protect his victim’s identity, entered a surprise guilty plea in Auckland District Court yesterday.

He admitted performing an indecent act on a child, after originally being charged with the more serious offence of unlawful sexual connection with a person aged under 12. …

If the case had gone to trial, the man’s lawyer, Marie Dyhrberg, intended to tell a jury her client was so intoxicated that he was not aware his victim was a child.

Really? You thought a four year old was an adult because you were drunk????

It is wrong the comedian will have permament name suppression. With respect, the wrong details are being suppressed. What should be suppressed is any details of the crime which would identify the victim. Suppress the fact that it occcured at his partner’s house, rather than his name.

About the Submitter

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
2. I am the owner and editor of kiwiblog.co.nz, a blog which attracts hundreds of comments every day from close to 7,000 commenters. Some commenters have broken name suppression orders on my site, and a considerable amount of time is spent on detecting and deleting any breaches.

   Executive Summary
   

3. This submission is focused on the provisions around name suppression and the Internet.
4. I believe name suppression orders have been too easy to obtain, and support the provisions of the bill which make it harder for name suppression to be obtained.
5. In the Internet age, it is very difficult to keep things secret, if there is a public interest in them. Wikileaks is a classic example of this – the US Government couldn’t stop publication of some of its most classified secrets. So the NZ Government will not be any more successful in stopping publication of defendants details if someone strongly enough wants to publish them.
6. Websites with no NZ connection (ie not hosted in NZ, and no known author/owner in NZ) can public suppressed details with no comeback under NZ law.
7. The bill proposes an offence for ISPs (which are defined as including bloggers) who do not delete any content which breaches a name suppression order. I am unsure as to the need for this, as I believe a failure to delete any content (once notified of it) is already an offence. This is why I have deleted comments which do breach suppression orders.
8. If there is to be a specific offence for ISPs, then significant changes need to be made to it to protect content hosts from being jailed for material they were unaware of. I detail these later on
9. I support the creation of a register of suppression orders for two reasons. The first is it would help media ascertain what is suppressed – something which can be challenging currently. Secondly it would allow publishers to verify if material on their site is in breach of an order, so it can be taken down.

   Clause 214 – Standing of members of media
   

10. Clause 214 restricts standing on a name suppression application to media who are subject to the BSA or Press Council. Unlike c202(2)(b) which caters for other persons reporting on court proceedings, c214 has no exceptions.
11. I do not believe it is necessary to have any restriction on whom may be heard in relation to a name suppression application. It is highly unlikely anyone would seek to be heard whom doesn’t have a legitimate interest in the issue. They might be an online publisher like Scoop, a student newspaper such as Salient, or even a transparency in government foundation.
12. If standing is to be restricted to “media”, then it would be desirable for the courts to have the flexibility (as in 202(2)(b)) to recognize a wider range of media

    Clause 215 – Offences and penalty
    

13. The maximum term of imprisonment of six months is excessive, especially as it may apply to publishers who do not knowingly break a suppression order but merely are found not to have detected and deleted a breach. A possible penalty of jail is excessive – even though this applies only to breaches of victims identities.

    Clause 216 – Liability of ISPs
    

14. Clause 216(2)(a)(i) states an ISP is liable for any breaches done by their users if they “knows or had reason to believe” the material is breaching a suppression order. This is far too uncertain a test for an issue of criminal liability. The test should be as per the Law Commission recommendation “that they know”.
15. Clause 216(2)(a)(ii) also removes liability protection if an ISP “does not, as soon as possible after becoming aware of the infringing material, delete the material”. It is important to define what constitutes awareness of the infringing material. Having someone merely tell you that there is infringing material somewhere on your site should not be sufficient to remove liability. You need to be aware of the specific page or URL it is on.
16. Clause 216(3) says the a court in determining liability must “take account of all relevant matters, including whether the Internet service provider has been notified of the alleged breach”. It does not define whom can do the notification. Ideally notification would be by way of a notice and takedown regime as proposed by the Telecommunications Carriers Forum. Before an ISP removes material, they need to have the assurance that it is someone in authority asking them to remove the material. Either Crown Law, the Ministry of Justice, the Police or even Judge’s Registrars could be deemed the appropriate authority to issue such takedown notices.
17. Clause 216(4) requires an ISP to notify a user if it has deleted material which is suppressed. This is not practical for bloggers (who are defined as ISPs under this bill) as many of the commenters are anonymous. It is desirable to say that notification should happen, only if practical.
18. It would be useful to use an alternate term such as a “content host” rather than ISP for the purposes of this section. Defining persons who host material on websites as an ISP will just lead to confusion between different Acts.

 If significant changes are not made to these provisions, ISPs and Internet publishers (such as myself) could face criminal liability despite our best efforts to obey the law. The Government needs to make it was easy and clear as possible for Internet publishers to know if material on their site infringes, to locate that material and to remove it secure in the knowledge that the request to do so has come from an authorized agency

David Farrar

Simon Power announced there would be an independent review to find out how this happened.

Rather than wait for anything resmebling a fact, Labour MP Carmel Sepuloni announced she had worked out who was to blame – the National Government of course.

The breach of name suppression of two sex abuse victims by the Ministry of Justice is a mistake that should never have happened and is another example of the National Government’s failure to protect the rights of  victims.

Simon Power says he will be asking questions of the officials tomorrow morning to ascertain how this mistake occurred, when really he should be pointing the finger at himself and his Government.  The slash and burn cuts that the National Government have continued to make across the public sector, are inevitably going to result in mistakes being made.  The funding cuts to resources and jobs across the sector – equate to, additional pressure being placed on those still working there – leaving them stretched beyond the limit.

Rather sad that two victims of sexual abuse have had their identies revealed, and that Labour merely sees this as an opportunity to smear National and continue their ideological arguments that the public sector should be immune from the impact of a recession.

So was it some over-worked staffer in the Ministry of Justice who made an error, and ignored the Judge’s supression order? Is Carmel’s smear attack justified?

Well this later story reports:

The Chief High Court Judge, Justice Helen Winkelmann, says the court failed to note suppression rules on a judgement which led to the publication of the names of two sexual abuse victims on the Ministry of Justice website.

Justice Winkelmann, in a statement this evening following her inquiries, said it was an error and she very much regretted it had happened.

I’m amazed Labour have not yet found a way to blame the Canterbury Earthquake on public sector staff cuts.

Sports broadcaster Martin Devlin – the celebrity who was arrested and charged with disorderly behaviour – says he sought name suppression to protect his children from embarrassment. But doing so only made things worse, he admitted yesterday.

Yep. If his lawyer advised him to do so, he was very badly advised. The quest for name suppression generated far more publicity for Devlin, than he would have attracted for a very minor offence. And it was of course ineffective. Even though there were no blatant high profile breaches of the suppression order, his identity became well known through word of mouth.

“I sought name suppression in an effort to try and protect my children from being identified and embarrassed by my behaviour,” he said in a statement to media. “Obviously the only effective way to prevent that was not to do it in the first place.”

Indeed.

Continued name suppression for a 46-year-old celebrity charged with disorderly behaviour has been slammed by the Newspaper Publishers’ Association.

The entertainer, who faces the charge after being arrested in downtown Auckland on December 29, has been accepted into a police diversion scheme.

Judge David Harvey, in Auckland District Court, adjourned the celebrity’s application for non-publication of his name, which media is expected to oppose, until February 9.

It is worth noting that the Judge here has not granted name supression. It has been applied for, and interim supression cotinues until the hearing on Feb 9th. The problem lies with the defendent trying to gain permament name supression, and the inability to schedule a substantive hearing more quickly.

The defendent has either had some shockingly bad advice, or has ignored some good advice/ If he had never sought name supression, the incident (which was minor and he got diversion for) would have been a page five or seven story lasting one news cycle.

But the use of name supression has meant half the country wants to know who the 46 year old is (the other half already know), and you’ve had other 46 year olds deny it is them.

So the end result for the 46 year old is a tonne more bad publicity that if he had never had name supression.

Newspaper Publishers’ Association chief executive Tim Pankhurst said yesterday that media companies should challenge the suppression to protect the principles of open justice.

“The courts in this country are far too ready to offer suppression. A justice system operates the most effectively in full sunlight and any sort of suggestion that people of influence … are protected, undermines the system.”

I agree with Tim Pankhurst that media should challenge this, but note that the Judge has not yet made a decision on suppression. Also worth noting that the Police did not oppose interim name supression. This is part of the problem – we need a culture in the Police where they challenge name suppression in almost all cases.

Media – mainly on Sundays – and bloggers especially Cam Slater have been frustrated with Teachers’ Council rules that make it very hard to hear cases in public. I share their concerns. There is almost no way to have suppression orders because the maximum fine for a breach is $1k which deters no one.

The Council is understandably reluctant to risk identifying victims especially of sexual abuse but their rules don’t let them identify accused and not the victim – and won’t change with the current fine level.

This breeds rumours and false conclusions.

I’ve got two SoPs one very simple which increases the fine to $100k and would leave the Teachers’ Council to rewrite the rules. The second, below, is more comprehensive and adopts the position that Simon Power is promoting for the Courts. It has a presumption of an open hearing.

I agree with a presumption of open hearings. I also agree that if you have name supression, you need a larger maximum fine than $1,000 to be effective. However $100,000 is too much considering this is just for a professional disciplinary board – not an actual court.

You can read the proposed SOP in full at Red Alert, and comment either there or here on what you think.

It’s a good example of MPs using blogging to get feedback on proposed law changes.

This is a complaint alleging that Television New Zealand Ltd broke S140 of the Criminal Justice Act 1985 with their 6 pm One News bulletin on Tuesday 5 October 2010.

A video of the particular item can be found at http://tvnz.co.nz/local-elections-2010/court-appearances-over-alleged-voting-scam-3818752/video

The item showed the arrest of a man in relation to alleged enrolment fraud in Papatoetoe.

At around 50 seconds into the item, the reporter speaks to the camera with a Labour Party billboard in the background, showing photos and names of three candidates for the local elections. Slowly the shot zoomed in until the only two things visible were the reporter and the photo of the candidate on the right. At this stage his billboard photo is almost as large as the reporter. It is not an obscure background image.

The candidate prominently focused on was Daljit Singh, who was one of the two men arrested. At the time of the broadcast his name and identity was subject to an interim suppression order from the Auckland District Court.

The inclusion of the billboard featuring Mr Singh, and the extended close up zoom onto his image was obviously a deliberate decision by TVNZ to indicate or hint that Mr Singh was the person arrested. They did also show some images of other candidates and billboards but they were extremely rapid fire.

In the recent case of Police v Slater, the judgement of Judge Harvey made it clear that it is not necessary to actually name the person with name suppression, to be in breach of an order. Judge Harvey states:

The information can be decoded in the same way that an aggregation of information may lead to the identification of a person by way of a process of elimination – another form of interpreting a particular code or solving a puzzle.

The focusing on his name and photo allowed people to “solve the puzzle” of who had appeared in court. Presumably, this must have been the intention of TVNZ, otherwise they had no need to film their item in front on Mr Singh’s billboard.

I should note that personally I strongly disapproved of the situation where Mr Singh was able to get interim name suppression. I would even go so far as to say that I thought TVNZ provided a public service by implicitly identifying him before the deadline for posting in votes.

But I do not believe one can expect other “publishers” to obey the laws around name suppression, if they are not applied equally.

Therefore I reluctantly file this complaint.

Faithfully,

David Farrar

(complaint was sent by e-mail on Saturday 9 October 20110)

Mr Brown, the Mayor of Manukau, who has supported the campaign of the charged candidate, yesterday said he was disappointed with the accused and anyone else who abused the democratic process.

Was he disappointed enough to ask the candidate to stop using this photo of Len Brown, with him, on his election pamphlet?

But Judge Simpson was forced to grant interim suppression when the man’s lawyer, Howard Lawry, said he would appeal against her ruling.

The identity of the Super City candidate will be kept secret until the appeal can be heard in the High Court. The Herald will join the police in opposing the suppression application.

On behalf of the police, Crown prosecutor Robin McCoubrey opposed suppression for the candidate. He said there was strong public interest in the name of a person accused of fraudulent activities affecting the electoral roll.

Mr Lawry said naming his client, who is presumed innocent until proven guilty, would jeopardise his chances in the election.

Mr Lawry said that if his client’s name was suppressed, the position of other candidates was protected.

This was because if he were elected, then found guilty as charged, the election result could be revoked.

Not really. There is no provision to revoke an election result if a candidate after the election is found guilty.

One can do an electoral petition to have an election declare invalid, but these must be lodged within 21 days of the result. There is no way any trial will be concluded in that time.

Sadly, by appealing, the name remains suppressed until Thursday afternoon probably, and by then it is too late to mail your vote in.

UPDATE: A reader points out that if the accused is elected, and found guilty of a crime carrying a maximum sentence of two or more years jail, then they forfeit their seat.

It was calculated and deliberate to identify one of those given name suppression.

Now I have to be honest and part of me was wildly cheering on TVNZ for their defiance of the court order.

But the other part of me wonders if the Police and Crown Law will treat TVNZ to the same standard as it did a blogger?

Since that post was done, they have appeared in court. They applied for name suppression and the Judge declined it.

They then appealed that decision to the High Court. As is usual, they got interim name suppression for 48 hours so the appeal can be heard. While I understand this is normal, I think in this case it is a bad call as another 48 hours of voting will carry on, without people knowing the identities of those charged – something which could affect how they vote. By the time they are named, it will be too late to post your vote in probably.

Those online will know, as they probably read it before it was deleted. But those watching the TV News tonight won’t get to find out who it is, and those reading the Herald tomorrow morning won’t get told the identity either.

However I don’t want to share a cell with Whale Oil, so I am respecting the law and have hidden the previous post and comments. I will make them public again once name suppression is lifted.

Very ironic that this happens on the day the Government announces it will be harder to get name suppression.

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.

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.

This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow nonpublication orders. That debate must take place in another forum.

Such as blogs! The furore over Garrett is another example of the fading power to keep names suppressed. It seems that just because he admitted it in Parliament, doesn’t mean one can repeat what he said with immunity. But myself, along with every media outlet in NZ, decided the risk of prosecution was nil as it was the defendant himself who revealed what he had been charged with and got name suppression for.

And even if he had not, it was inevitable it would have ended up in the public domain, We saw this also in another recent case regard issues around a failed marriage of a political figure – the media never stated who it was, but made it very clear from heir reporting.

It is also to be noted that postings on a blog may come from a number of sources and usually include the administrator or supervisor of the blog site. However most administrators or supervisors of blog sites must hold some responsibility for the comments that are posted.

This is a warning that a blog owner can be held responsible for comments made on their blog. Unlikely to be held responsible if you are unaware of them, but if a comment is pointed out to a blog owner – and you refuse to edit or delete it – then you may face some liability.

This poses some dangers to blog owners. Let us say it is announced a politician got name suppression for urinating in public. Someone in General Debate might say “I reckon that is the sort of thing Simon Bridges would do”. Now as blog owner I have no idea who the politician is. If it turns out to be Simon Bridges, then I may be liable for the comment. If Crown Law contacts me and says you should take it down as it is Simon Bridges, then I’d take it down, but readers might then take that as proof it was him. And it means Crown Law have also spread the identity of the person with name suppression.

SO there may need to be some way blog owners can check out details of suppression orders, if they are to be liable for comments made on their sites. But do you allow all 200,000 blog owners to access some register of suppression orders? That may be self-defeating!

However the “conversation” differs from that which may take place over a cup of coffee or across a dinner table. The first difference is that the material that is posted upon the blog is posted primarily in the form of text.

Thus, unlike a conversation, the blog becomes a record which is preserved and available on the blog site until such time as it is removed by the person responsible for administering it.

And presumably this applies to Twitter and Facebook also.

Even if the blog were to be accessible by means of subscription
with a login and a password it could well in my view be subject to the same constraints.

At first I thought this was over-reach, but I then compared it to the Trans-Tasman newsletter which you need a login and password to access. If they broke a name suppression order, they would certainly be deemed a publication.

The Court has jurisdiction notwithstanding the fact that the server hosting Mr. Slater’s website is located in San Antonio Texas in the United States of America. This is because publication of information takes place where the material is downloaded and comprehended.

I don’t like this interpretation, as it effectively implies that if you publish material on the Internet, you are a publisher in every country on earth. This means I may have broken the laws of dozens of countries with my blog.

I believe that it should only be deemed to be published in the country in which the person responsible resides and or where the servers used reside. Otherwise you risk an Internet which ends up governed by the most repressive country.

Of course I can avoid travelling to certain countries, but I don’t want to travel to (for example) Indonesia and find myself arrested for something I said on my blog about Islam (for example).

In addition the evidence is that Mr Slater posted material to the Whaleoil site from New Zealand thus performing an act necessary for the commission of an offence pursuant to s. 7 of the Crimes Act 1961.

Cameron did not deny he uploaded the material. If the site was registered to someone not in NZ, and the uploading was done by someone not in NZ, then there would be little the legal system could do. Lance Wiggs blogs on ths point:

What if the author of the overseas site is unknown? What if the site is hosted in multiple places around the world? What if the site that received emails and published names was Wikileaks.org? What if there was a global site called NameSuppression.org, with a nz.NameSupression.Org sub-domain? The owners could be shadowy, the location ever in doubt and the publisher untouchable.

It can’t be long before this occurs, and then what shall we do in New Zealand? Block the site as the Australians tried to do with Wikileaks? Go after anyone that links to the site?

The issue of links is also interesting. Back to that later.

Constable Traviss also gave evidence of a “posting” on Mr Slater’s blog which is known by his “nom d’internet” of Whaleoil.

Heh I think we have a new legal term!

The internet allows everyone to be a publisher.

I do wish people would capitalise Internet.

Many bloggers prefer to differentiate themselves from mainstream media and rather than post what may be described as “hard news” prefer to post comment or articles that put a “spin” upon a particular story or alternatively offer an opinion (which may be of considerable strength and sometimes of pungent articulation).

Did Judge Harvey just call bloggers hot and spicy?

One feature however that differentiates a blog from say, a newspaper, is that a blog occupies a continuum of comment where a particular posting or item may start on one day but may continue and develop over a period of time. In many respects this continuum may have an impact upon the context of the publication or posting.

This is an interesting observation, as it meshes with something I had been reflecting on. Newspapers tend to always write stories to be read “stand alone”. So they will mention background context in every story. So even after their 20th story on David Garrett, they will re-state how he is an ACT MP elected in 2008 etc.

Blogs tends to assume that readers have read what they have said previously, and/or that they follow current affairs closely enough, that they don’t bother to supply all the background detail. This may be one reason why blogs are popular – you get to the meat of the issue.

But it does mean, as Judge Harvey stated, that blogs are more a continuum of comment, and posts can’t be treated as stand alone.

That comment seems to suggest that the effectiveness of an order made pursuant to s 140 is limited to publication in New Zealand. That is perfectly correct.

To suggest that a non-publication order pursuant to s 140 would have extra territorial effect is nonsense.

Of course such orders can not have extra-territorial effect, but in terms of futility, a publication on an overseas blog (or even newspaper) is just as capable of undermining the suppression order.

In the present case the availability of the material from a server located in San Antonio, Texas in the United States has little relevance. The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time.

What would be interesting is if Slater had a co-blogger who was based overseas. Would Slater as administrator be liable for what the co-blogger writes on a server is Texas? What if the co-blogger was the domain name registrant?

Judge Harvey himself gets into this:

But what of the person (A) who makes a suppressed name available to a person (B) beyond the jurisdiction, and B posts the name on a his or her blog or website in a country other than New Zealand? Without specifically deciding the point, according to the decision of Hammond J in Re X the communication between A in New Zealand and B overseas could fall within the concept of a private conversation between individuals and may therefore would not fall within the scope of s. 140(1).

This is not a definite ruling, but an interesting indication that merely telling someone overseas details of a suppression order might not be an offence. Even if it was, it would be incredibly hard to prove of course.

The fact that the information is available on the internet and accessible to people in New Zealand who may subscribe to the blog or know of the webpage does not present any element of novelty. In 2000 the day after the non-publication order was made in the Lewis Case, Mr. Lewis’ name was published in the Australian newspaper which, a couple of days later, was available in newspaper rooms in New Zealand and probably on the Australian website of the day.

A case Judge Harvey is well acquainted with.

While not relevant to the finding of fact in a particular case, it is relevant to our law makers when reviewing the law.

Following from that is the New Zealand based blogger who may embed a link to the off-shore blogsite which contains the suppressed name. One should be cautious in such circumstances that one does not become involved in “publishing” by way of hypertext link. In the case of Universal City Studios v Reimerdes and Corley, a Court made an order that the defendant’s website was prohibited from directly providing files which contained the DeCSS code which enabled the circumvention of copy protection algorithms on DVDs. When the defendants posted links on their websites to other sites that provided DeCSS either by way of direct download via the link or by means of an extra few websites, the Court held that utilising this device was a “distinction without a difference” to offering a direct download. I have no doubt this point or something like it will fall to be decided in this country in some future case.

This is the aspect that may have implications for bloggers and media. I raised this issue last year also at the R v Internet seminar. Consider a case where say Whale Oil again breaches a suppression order, and this is reported on by media and/or other blogs. In order of decreasing risk, you have possibilities:

1. You mention Whale has (allegedly) broken another suppression order provide a link through to the actual post which allegedly breaches a suppression order.
2. You mention Whale has (allegedly) broken another suppression order and provide a link through his blog, but not the actual post which allegedly breaches a suppression order.
3. You mention Whale has (allegedly) broken another suppression order and on your blogroll you have a link through to his blog.
4. You mention Whale has (allegedly) broken another suppression order and have no links to his site anywhere at all.
5. You mention a “notorious blogger” has (allegedly) broken another suppression order.

All of the above actions could lead to a large number of people finding out the name of a suppressed person.

(1) is something which to my mind does cross the line, and would be unwise to do. But how different is that to (2). If you provide a link to his blog, it will probably be on the front page and discoverable within seconds. So (2) may get you in trouble with the law also.

Then how about (3). The only difference between (2) and (3) is someone has to go from looking at the main body of your blog, to the sidebar with a blogroll, and click through to follow the link. (3) is not far from (2) and (2) is not far from (1).

So how about (4) and you provide no links at all, anywhere on your site. Well, 95% of people who do not know the URL of Whale Oil will go to Google, and his blog comes up first. Same thing if you search on his name only. So I am not sure (4) is very far removed from (3). This would mean that every media outlet that named Cameron or his blog, could be at some risk – especially if they have any links at all in their archives to his site.

But what if they don’t even mention his name, or his site’s name at all. Well even scenario (5) can lead to lots of people who will find out the identity of a suppressed name. You see in this example Whale Oil is so well know as the site which has breached previous orders, that there are probably 100,000+ people who upon reading in the newspaper “A controversial blogger has revealed the name of the /musician/politician/sportsman who did ….” that they will know exactly which site to go to to find out, and then of course tell all their friends.

So maybe the only way to stop it, is to have a law where it is illegal to even mentioned that a suppression order exists, let alone it has been breached. But that is draconian, and would not be accepted. So where do you draw the line?

Some of the charges have a name published under the heading “Interesting Name.” Mr Thwaite argues that this means nothing. Mr Burns responds by arguing that one must look at the context of that particular publication taking into account that further information is available on the blog site relating to the case involving the particular name which has been displayed in another place on the blog site.

Mr Burns argues that because the blog is in the nature of a continuum that it is clear to the reader that the name relates to another article on the site and it is merely a matter of marrying the two.

This brings up an interesting possibility. What if you never ever posted on the actual substantive story relating to a suppressed name, and just posted the name by itself?

Or you can find some other way to refer to the person with name suppression. The mainstream media do this quite often. In one story they report an entertainer has been granted name suppression, and in another they report that so and so has been dropped from TV. Will they get treated as a continuum  or only blogs?

Similarly with the pictogram. The information can be decoded in the same way that an aggregation of information may lead to the identification of a person by way of a process of elimination – another form of interpreting a particular code or solving a puzzle. The use of phonetically coded information (which is how the pictogram resolves the name) is not unknown to Mr. Slater. I venture to suggest that the words “Whaleoil Beef Hooked” on the “masthead” of his homepage provides an example.

Ha. I wonder how many times the Judge had to try it out loud with an Irish accent before he worked it out – it took me a few goes

Mr. Slater also maintains a certain amount of control over the content that is published. He was asked “You’ll just publish it anyway?” He replied “If I agree with it. I won’t publish something I don’t agree with” – an ironic answer in light of the freedom of expression argument which his counsel has advanced.

Not really ironic in my opinion. In the comments section, Cameron does allow contrary views to be posted all the time – in fact I’ve never known him to censor a comment. His comments were, I suspect, referring to what appears on the front page or main posts of Gotcha.

The evidence is also clear from some of the posts by Mr. Slater that his campaign was going to go beyond legitimate protest and criticism and was going to enter the realm of “electronic civil disobedience” by the publication of certain names that were the subject of non-publication orders.

I quite like that term “electronic civil disobedience”!

The judgement answers a number of questions about our name suppression laws and will I imagine be cited often in the future.

It does however leave unresolved potentially larger questions for the future – such as liability for linking, and whether communicating suppressed details to an overseas blogger would be an offence. Of course that is because those questions did not have to be answered in this particular case.

I look forward to seeing what changes to name suppression laws are proposed by the Government, in response to the Law Commission’s report.

The fine is $750 per charge plus $130 costs, so total cost is $7,920.

There are some proposals from the Law Commission that are with the Government, which are worth implementing. One of them makes it harder for people to get name suppression, and the other will make it easier for media (and bloggers I hope) to access details of suppression orders so that you are less likely to accidentally breach a suppression order (as has happened to me on occassion).

I hope we do see some law changes in the near future. While I don’t endorse deliberately breaking the law, I do endorse the intent of the campaign – which is to to have a more open justice system.

UPDATE: Have also placed the pdf on Scribd, below:

Police v Slater

But neither detail in full, what was probably the funniest exchange. The Police played their DVD of the interview with Whale, and it contained discussion of Whale’s depression, and medications.

Judge Harvey asked the defence lawyer whether he would like those parts of the DVD evidence suppressed. Mr Thwaite replied instantly that normally he would check with his client as to their wishes, but in this case he feels confident that he can answer forcefully that his client will not be seeking a suppression order

For those who are wondering, what happens next:

Judge Harvey says he does not intend to present a decision now. He proposes to remand Slater at large until 10am on September 14 when he will have his decision. Judge says he can make a finding on the no case issue and he can find there is no case to answer and the whole thing evaporates. Or he finds there is a case to answer, he can articulate that and he can give Mr Thwaite an opportunity to address the judge on liability. Or he can proceed to determine the no case argument, if there is a case to answer he can consider the elements have been proven beyond reasonable doubt.

So tune back on the 14th.

Judge Harvey is probably the Judge who is the most knowledgeable on Internet issues. I’m not sure if he volunteered for the trial, or was given it as punishment

Some extracts:

Judge Harvey describes Whale Oil’s blogs as like a shotgun blast, it hits the person and then other people he doesn’t want to hit.

Heh, not a bad analogy.

Mr Slater is sitting at the back of the courtroom; wearing his usual white long-sleeve shirt with dark blue sleeves. He is bearded, arms folded and watching the trial unfold with apparent nonchalance. He writes the occasional note on his hands but remains impassive.

Heh. I look forward to seeing the TV.

Ms Murray asks him about articles he posted about the Olympian. He says he wrote an article about celebrity name suppression and said he published some pictures to go with the article for ‘interests sake’. He says they were ‘interesting pictures’ and says people have had guesses at what they meant. He says ‘they could mean anything’. It was one image that contained four images. He says he doesn’t believe the Olympian should have name suppression because he is a ‘violent criminal’. He says he understood that no one was able to publish his name, age or occupation. He says he did not mention his occupation nor his age nor his name. He says he quoted from the NZ Herald and put up a random image – ‘you can take it anyway you want’.

The court judgement will be very interesting.

Ok it is time for all those out there who sup­port my stance on name sup­pres­sion to assist with the legal bills. I appre­ci­ate the months of loyal sup­port as I await the slow wheels of our Jus­tice sys­tem to turn. Now I need your cash sup­port, no mat­ter the size, every bit helps, to help with the fight.

It is time to ban the Burqa of our Legal Sys­tem – Stop Pedos and Sex Offend­ers from hid­ing under the burqa.

In just 8 days (25 August) I appear in the Auck­land Dis­trict Court to defend these charges.

I need help to pay the legal bills. The next few days are hec­tic as I pre­pare my defence with my lawyer Gre­gory Thwaite.

My Kiwibank account num­ber, opened this morn­ing for dona­tions is 38–9010-0764240–01, you can also use the online Chipin wid­get below or on the side bar.

Any sur­plus funds raised will be donated equally between the RSA Wel­fare Fund and the Ex-Vietnam Ser­vices Asso­ci­a­tion, in hon­our of those who fought for our rights to free­dom of speech.

I thank you all in advance for your sup­port. Hope­fully I will see you in court as well.

It would be great if someone in the media applied to live webcast the court proceedings. I think a lot of people will be interested in the case.