Kiwiblog

The SST reports:

Controversial blogger Cameron Slater is again under police investigation, this time for identifying on his website a primary school teacher accused of sex crimes against children.

And Slater last night stepped up his name suppression campaign, telling the Sunday Star-Times he was set to post the names, phone numbers and addresses of judges who award name suppression without “good reason”.

Slater is already facing five charges of breaching name suppression orders, after he published on his website the names of several high-profile New Zealanders before the courts, but whose identities were suppressed.

Justice Minister Simon Power said Slater’s threats to expose the personal details of judges on his website were “probably not helpful”.

But Slater said our officers of the court were making “improper” decisions and he wanted to take a stand.

“These judges are the people perpetrating the expansion of the original suppression laws beyond what was envisaged by parliament,” Slater said. “They are trying to rewrite the law by judicial meddling.”

I’ve often joked with Whale that he will beat me in the ratings, even if he has to do it from D Block!

He seems to be well on the way to both aspects

In the Alexa ratings, Gotcha is ranked 124th most visited site by NZers. The previous weeks it was 118th and 112th. Kiwiblog is 122nd, and previously 121st and 117th, so in the weeks ending 17 January and 24 January, Gotcha was ahead of Kiwiblog in the Alexa rankings for New Zealanders.

As for making D Block, I’d say declaring war on Judges will help achieve that goal!

The Herald reports:

High-profile blogger Cameron Slater is to launch a new anti-suppression lobby group called Shame.

Slater made the announcement this morning, several hours before he was due back in court for breaching suppression orders.

Shame, which stands for Suppression Helps Abusers Make Excuses, would lobby for a change in suppression laws, he told TV One’s Breakfast.

Slater said he was approached by a number of people, including Wanganui Mayor Michael Laws, to “affect change”.

“There’s a lot of support for my stance,” he said.

“The first day after I appeared in court I had 400 emails, a lot of them from victims as well saying we support your stance, we want to name the people who abuse us.”

You can join SHAME on Facebook.

I have been thinking further on the name suppression issue.  I understand that the legislation applies automatic name suppression to alleged sexual offenders in cases where a minor is involved, or where the relationship with the accused means that the victim can be identified (or when you are really really famous).  Why?

Why does being the victim of a sexual attack mean that an individual shouldn’t be identified?  If the attack had been of a physical nature would name suppression be put in place?  And, just to exaggerate the point further, is the honour killing of rape victims by relatives in some countries (to cover up the attack and the way it tarnishes the family) just a more brutal version of a similar moral instrument in our society.

And, no, I’m not suggesting that we specifically name victims… just that using possible victim identification as the reason for perpetrator name suppression is… well… trite.

It seems that we as a society (and through our legislation) have applied a moral code.  We have decided that to be sexually abused or attacked means to be broken in a way that is unsuitable for others to have knowledge of.  As a society we have decided that people who are sexually abused might have their reputations besmirched by being a victim of such an attack.  Of course to move away from that would mean allowing victims (or an adult in their place) to have more say as to whether perpetrators (and potentially they as victims) are named.

Again, I ask you if it would be different if a well-known man had allegedly physically beaten his step-daughter?  Would he require the same sort of name suppression?

Name suppression (of the alleged or convicted perpetrator) has the possibility of actually putting sexual abuse victims in more of a box, to isolate them further and to effectively make it clear that we as a society don’t want to talk about that sort of thing.

I’m not saying there isn’t a place for name suppression… more challenging the reasons behind it being a necessary or automatic measure in some cases.

I’d also like to place some faith in the justice system so do think it is important that a person has the potential for a  level playing field before they go through trial to be found guilty or otherwise.

The Dom Post editorial today is on blogs and name suppression. Extracts:

As the internet has transformed the world, the blogosphere within has become pervasive. Anyone with a computer can either read the opinions of people who craft blogs – sometimes, merely illiterate streams of consciousness – or pen one themselves.

That some who cannot spell, let alone write, think that the world is gagging to know their business is as presumptuous as tweeters who think everyone is interested in their self-absorbed lives. Be that as it may.

Some blogs demand attention, in this country those by, for example, David Farrar, Russell Brown and Cameron Slater.

I’m not sure if that means we are excluded from the description of merely being illiterate streams of consciousness!

Attention Slater has now got.

Last month, police charged him with breaching name suppression orders when, on his WhaleOil blog, he posted pictorial clues identifying the accused in two high-profile sexual offence cases. This week, he revealed by way of binary code the identity of a former national figure accused of a sexual attack on a 13-year-old girl.

Nelson police, who laid the latest charges, call Slater’s actions irresponsible, because they fear they might lead to public identification of the victim, whom the suppression order was intended to protect.

Slater is on a mission. He has said, outside the courtroom, that he believes everyone should be equal before the law, that celebrities and the wealthy have their identities suppressed more often and more easily than do ordinary Kiwis, and that the law needs changing.

The Dominion Post agrees. But there are better ways to lobby for a more open court system than by putting at risk the future of a teenage girl.

I agree, but point out a newspaper had already effectively done the same thing.

At the same time, Slater has forced police, perhaps the solicitor-general, possibly Justice Minister Simon Power, Courts Minister Georgina te Heu Heu, and Attorney-General Chris Finlayson, and maybe, later, the judiciary, to confront the fact that the Criminal Justice Act, which gives judges the power to suppress certain information relating to cases before them, needs revision.

Which I believe is likely, on the basis of the Law Commission report and the comments at the time from Simon Power.

In the meantime, it is reassuring to see the Crown Law Office has decided that it can no longer apply the law relating to suppression unequally. At times of egregious breach, the solicitor-general has been keen to go after those in the mainstream media who have broken suppression orders or otherwise committed contempt of court.

For the most part, however, inhabitants of the blogosphere have been merely warned about their cavalier disregard of suppressed information or other transgressions, notably during Clayton Weatherston’s trial for murder.

Either everyone who breaches this law is prosecuted, or no-one is. And were the latter to become the reality, those sections of the Criminal Justice Act pertaining to suppression orders need to be repealed.

I find it quite funny that yesterday we had bloggers such as myself saying that the media are getting away with transgressions, while today the media are saying the bloggers are getting away!

An excellent summary of the whole issue has been done by Steven Price. I won’t do extracts because people should read the whole thing.

Law Professor Andrew Geddis has done a second post on the issue.

Also a number of posts from media lecturer Martin Hirst at Ethical Martini.

The Press reports:

A blogger faces fresh charges after he revealed the name of a national figure charged with indecently assaulting a 13-year-old girl.

Cameron Slater already faces charges over alleged breaches of name suppression, and he said yesterday that he had no doubt his latest effort would land him in more trouble.

Slater, who writes the WhaleOil blog, yesterday posted a blog entry that stated the name of a man charged with indecent assault. The name had to be deciphered by translating a code the blog was written in.

I think it was hexadecimal converted into binary. Now Cameron will find out in due course, whether or not that is seen to identify the ex-MP with name supression, but if they do prosecute the Whale, the question has to be asked whether newspapers should be charged also?

The man’s name was suppressed when he appeared in the Nelson District Court on Thursday.

A Sunday newspaper published details about the man, which Slater said had narrowed the field of possible accused to three.

He wanted to clarify who the accused was so the other two men were not unfairly accused.

Now I am not gunning for the Herald on Sunday. But I would say that far more people worked out from their story, who the accussed is, than the handful of people who were capable of working out the code Cameron had used, and reverse engineering it into hexadecimal and finally the  alphabet.

I am not saying that one justifies the other, or two wrongs make a right. I am saying that the Police should be very careful not to be selective. The Herald on Sunday article told us the following:

• An ex-MP in Nelson – narrows it down to around four people
• A “national figure” – probably eliminates around two of the four people as now very low profile
• He has a partner
• Has a firearms licence (implied)
• Implies the victim is the partner’s daughter
• Implies the ex-MP has been in more than one party by referring to the leader of “a” party he represented in Parliament

I would say that identifies the accused far more easily to many more people than the hexadecimal and binary code did.

You can argue that Whale’s post left no doubt, once you cracked his codes, while the newspaper story only allows you to make an intelligent guess. However the law in s139(2) says:

No person shall publish … the name of the person accused or convicted of the offence or any name or particulars likely to lead to the person’s identification.

Were the particulars in the newspaper story enough to be likely to lead to identification of the accused? They certainly were for me, and most political observers.

Now again, I am not advocating that the newspaper be charged. I would prefer no one be charged. But I would be interested in how one could conclude that the blog post is a breach, but the newspaper story is not.

The HoS reports:

The national figure who has appeared in court accused of indecently assaulting a 13-year-old girl can be revealed as a former MP.

The man, who has interim name suppression to protect the girl’s identity, was remanded on bail without plea during a brief appearance in Nelson District Court on Thursday.

He is charged with indecently assaulting a girl aged between 12 and 16.

His bail conditions include living at an address away from his home town, avoiding contact with his partner and the alleged victim, and not possessing or obtaining firearms.

While understanding the need to protect the alleged victim, I think it is incredibly unfair to have name suppression, as the occupation is so rare, it means innocent people get assumed to be the person charged. Much the same as with the ex All Black in Fiji (now named as Robin Brooke).

There are only three to five ex MPs I know of in Nelson. One of them I can rule out due to details in the story.  It really is unfair on those ex MPs that the innocent ones will have to endure dozens of people speculating or even asking if they are the person charged

The Herald/NZPA reports:

An internet blogger says his arrest on charges of breaching court suppression orders has seen a huge increase on hits on his site.

Cameron Slater reappeared in Auckland District Court today facing five charges relating to allegations he published information which could lead to the identification of two people with name suppression.

They related to his posting of pictorial clues identifying the individuals in two sex offence cases. One involved an Olympic Games competitor and another a well-known entertainer.

Slater said he would defend the charges.

The public wanted an ending to most name suppressions, he said.

“I’d say about one per cent of cases deserve name suppression, and that’s those involving sex crimes against minors, so that the victims are not identified,” he said.

Slater said the charges had made his blog popular at a time when internet traffic normally slowed.

“Until police charged me my traffic would have been lower than a provincial newspaper on a Sunday,” he said outside court.

“But on Christmas Day, which is normally the quietest day of the year, I had about 20,000 hits, which was about five times the traffic of (fellow blogger) David Farrar.”

Slater said his legal team had about 16 potential defences to the charge.

He said one was potentially that his blog was hosted in the United States, not New Zealand.

In the past newspapers published overseas have been able to publish the names of people who had name suppression granted in New Zealand.

Slater will reappear in Auckland District Court in two weeks.

The actual hearing will be fascinating. I presume it is on 19 Jan?

Whale Oil has blogged the court summons he has received from the Police alleging breach of name suppression law.

He is due in court on the 5th of January. If he pleads not guilty, then it might be held over for hearing at a later date. He is seeking pro bono lawyers.

The Police have charged him over a post which they allege identifies the “musician” and for a post which they allege identifies the sportsman. In the latter case, they also allege his post identified the alleged victim.

The two charges of breaching a name suppression order are under s140(1) of the Criminal Justice Act 1985.  The maximum fine is $1,000 per offence, but this can be for every day the breach continues (if proven).

The charge of identifying the alleged victim is under s139(1), but also has a maximum fine of $1,000.

So even if Whale is found guilty, it would just be a fine at this stage. If it later turned into an issue of contempt of court, then a jailed whale would be a possibility

The Sunday News reports many prominent comedians are lining up to sign declarations that they are not the comedian with name supression charged with child abuse.

It occurs to me that at the rate comedians are saying “not me”, most people will soon be able to work out who it is, by process of exclusion!

Those quotes as saying it is not me are:

• Michelle A’Court
• Oscar Kightley
• Mike King
• Ewen Gilmour
• Te Radar

The guild wrote to TV3 director of news and current affairs Mark Jennings asking the network not to refer to the accused as a “well-known comedian”. “When people make a list in their heads of a well-known comedian, it is a really small group of people and this person would not be on this list,” A’Court said.

“Being charged with the sexual abuse of a child is as appalling as it comes. I feel very sad when I hear people outside of our group saying, `Oh, do you think it might be blah, blah’. I am really convinced that if his name becomes public, everyone will go, `Really, I wouldn’t call him a comedian’.”

Michelle A’Court has a valid point. If the name ever is made public, I don’t think most people would associate them with the term comedian.

As always, no guessing identities in comments please.

Before I add my comments, you can also see some summaries at Tech Liberty NZ blog (worth subscribing to also).

Also the Twitter feed is extensive. Over 250 tweets. Is one of the best Twitter coverages I have seen as we had nine or ten people et the seminar twittering and several people not there also commenting and asking questions.

The morning session was mainly focused on contempt of court, and the afternoon on name suppression issues.

Warren Young, the Deputy President of the Law Commission, gave an overview of the recommendations from their recent report on suppressing names and evidence. He said the threshold for getting name suppression shoudl be “extreme hardship” not just hardship as at present.

Most usefully he clarified that the recommendation relating to ISPs removing or blocking suppressed material is not meant to imply an obligation on ISPs to block overseas hosted material, just to remove material hosted on their own networks.

I asked a question about whom an ISP should be obliged to act on a complaint from – my preference is it should only be if the Crown Law Office or Police inform an ISP of suppressed material.

Judge Harvey spoke about the challenges of the Internet and supressed material, but did not think the horse had bolted. He made the case that one doesn’t have to achieve perfect suppression – it is often mainly aimed at making it hard for jurors to access material not relevant to the trial.

The final panel was myself, Sinead Boucher (Group Online Editor for Fairfax) and Ursula Cheer from Cant Uni Law School. Sinead and I talked about the issues we face from a practical point of view in trying to complay with the law, and Ursula touched on how different technologies come in and out of vogue with different challenges.

Now I can’t avoid mentioning a huge fuckup I did. It was one of the rare times I was speechless as I realised what I had done. I had a few slides to go with my talk, and I was talking about the recent high profile entertainer case, and was detailing the different sites you could find out on.

The point I was making was it was not just blogs, but the name was on Yahoo Answers, MSN NZ, was findable through Google search and even on the entertainer’s facebook page. I found it amusing that the entertainer himself could be liable for breaking his own name suppression.

I displayed the above page to show the comment someone had made on the page. I pointed out to the room packed full of lawyers from the Courts, Ministry of Justice, Crown Law, Law Commission etc (plus the Judge who originally dealt with the case) how careful I had been to draw green boxes over seven parts of the page to stop my showing the page, itself being a breach of the suppression order.

I went on to say how I then realised the URL gave the name away also, so had to go back and green that out also, and then also realised two of my open tabs displayed the name, and edited the graphic for a third time to green them out.

Just as I was about to move on, someone in the audience then pointed out that sadly I had overlooked the Google search box in the Google toolbar, and to my horror there indeed was the name of the entertainer (now behind a yellow-brown box). I was mortified as the audience started pissing themselves with laughter.

I mean how much worse can it be – you are boasting about how careful you have been to not break the name suppression order, and bang the name is up on the screen in front of everyone – and especially in front of that audience.

In the general discussion at the end, there was some discussion around the role of the media committee of the Courts. The TVNZ lawyer said the committee had one rep from print media and one from broadcast media, and many in the room thought an additional rep from Internet media could be a useful thing. Of course that is a decision for the judiciary, but it was agreed InternetNZ would write to the Chair to discuss the concept.

Feedback from participants was incredibly positive, especially from many of the lawyers. A common comment was how useful it was not just having lawyers there discussing things academically, but also having media and Internet practitioners with practical knowledge. There was a strong feeling that there should be more opportunities to get the various industries together on issues of mutual interest.

Kudos to InternetNZ President Frank March who MC’d the day well to finish ahead of time, and to the InternetNZ staff who primarily organised it. And most of all to the participants – had many great contributions not just from the speakers, but from the floor.

The seminar on the Internet and the Courts has been really good so far. You can follow it on Twitter here. It is also being filmed and will be viewable on the Internet.

Chris Finlayson gave a very amusing and interesting opening address. Referred to how someone once threw a cat at a Judge and the Judge said if you do it again, it will be contempt. It is indexed in law journals as “cat throwing-contempt-one cat allowed-two cats is contempt”.

He also said how relieved he was to find the room full of relatively normal people (ie lawyers) rather than Farrar-like hobbits

Professor Tony Smith had what I considered a good suggestion that the Courts have a staffer who proactively looks for material before a trial starts that may be pose a risk to a fair trial, and asks voluntarily for temporary removal.

Solictor-General David Collins talked about how Internet issues take up a large amount of his time, and the inability of getting Yahoo to remove material. Is seeking an agreement between governments to seek to enforce each other’s court orders to ISPs. There are some risks with this approach, as if publishers are deemed to be subject to the laws of every country they have readers, the lowest common denominator can apply.

Steven Price said that compulsory filtering only happens in repressive countries like China and Australia. Heh. Said genie was out of the bottle but not sure if it is a problem. Thinks there should be less use of contempt.

Robert Lithgow QC said he was probably only person in room who has prosecuted for contempt, defended people for contempt, has been charged with contempt himself and in fact appears shortly in the Supreme Court for Vince Seimer over his contempt issues.

He agreed with Steven Price largely and said the law of contempt is fundamentally buggered and only getting at the nutters now. He also said that there is no constitutional significance to modern commercial media as we don’t need them now, as bloggers are the public! Said the press are watchdogs and mongrels. They bark indiscriminately and only interested in food and biting!

Radio NZ Political Editor (and Chair of EPMU Media Committee) Brent Edwards said Internet got around censorship in even most sinister regime, so will do so in countries like NZ.

Robert Lithgow suggested all court cases should have a static camera so people can view over Internet, and not rely on the media so much. I agree entirely.

Tomorrow in Wellington is the R v the Internet seminar at Te Papa. The final programme is online, and I think there is a great lineup of speakers – and attendees.

The timing for the seminar has been very good, both with the release of the Law Commission’s recommendations (which is not a coincidence as it was timed to be just after that) but also the publicity around name suppression for the musician, which had even the Prime Minister asked at a press conference if he knew the name.

Incidentally with regards to that case, some commenters were of the view that the entertainer did nothing wrong, as the complainant went into the alleyway. This Sunday News article provides the victim’s perspective:

THE family of the teenage girl attacked by a prominent entertainer have broken their silence branding the incident “animalistic” and his permanent name suppression “totally disgusting”.

Victim Brittany Cancian last night described the musician as a “disgusting, self righteous pig”.

The 17-year-old was with friends in central Wellington on March 5 when two of her friends were led away with the drunken man around 3.30am.

Brittany’s mother Racheal, of Lower Hutt, said her “caring” daughter was attacked by the man while checking on her friends.

“I think he’s an animal, when I heard what he had done I thought it was animalistic. He wasn’t at all gentle about it,” Racheal said.

“What happened has absolutely been downplayed. She never followed him down the alleyway she went to see that her friends, who had followed him, were okay.

So this was not a girl going down an alley wanting to kiss him.

“She has quite a caring heart and she wanted to check on her mates and when she went around the corner he grabbed her.”

Auckland District Court heard earlier this month how the famous entertainer asked Brittany and her friends to “kiss my balls” before he grabbed the teenager’s head and pulled it towards his crotch.

His genitals brushed across Brittany’s face. The man admitted a charge of inducing an indecent act but was discharged without conviction by Judge Eddie Paul. He was given permanent name suppression because naming him would affect his record and concert ticket sales.

I think he got off lightly.

Racheal said police never asked her or Brittany if they wanted the man’s name suppression application opposed.

Court documents reveal police maintained a “neutral” position on the matter.

It is unfortunate the victim was not given a say. I sometimes wonder whether victims should be given their own counsel in court cases – to represent their interests.

Commission president Sir Geoffrey Palmer said if recommendations in the report had been adopted by Government prior to the musician’s court appearance, he “certainly would not” have received suppression.

“He would have to show extreme hardship and that is very difficult to do … that is hardship out of the ordinary, not ordinary hardship and that is a much higher threshold than the law currently provides.”

“We all have to have a quality before the law. The person who is a grave digger has to be treated the same as a person who is an All Black.”

On this issue I very much agree with Sir Geoffrey.

First the Herald reports on views from Justice Minister Simon Power:

Justice Minister Simon Power wants to stop the emerging “special class” of high-profile people using their status to get name suppression.

Mr Power strongly signalled he would change the law to stop cases such as the one this month in which a “prominent entertainer” who admitted forcing a teenage girl’s face into his genitals was granted permanent suppression because publicity would have a detrimental effect on his career and his record and ticket sales.

Very pleased to see Simon take a strong principled stand on this.

Incidentally I’ve been doing a bit of a case study into that case, and plan to present the findings at the R v The Internet seminar on 3 December. I’ve been looking at the various sites which tell or hint at the name, and also how hard or easy it is to find out via searching.

The Herald editorial:

At a first glance, the Law Commission report Suppressing Names and Evidence appears a document of much promise. Encouragingly, it talks of the need for court proceedings to be more open and for rules governing the suppression of names to be tighter and more transparent.

But on closer inspection, there are grounds for reservation about its prescription for reducing the level of secrecy in our courtrooms. This detracts somewhat from the major pluses of a principled approach and a well-observed appreciation of the justice system’s current failings. …

Some of the Law Commission’s other suggestions are most welcome. It supports the development of a national register of suppression orders as a matter of high priority. This would eradicate the confusion that arises when different courts impose suppression orders at different stages of cases, thereby heightening the potential for breaches.

A register of suppression orders is well overdue.  People may be surprised by how hard it can be for even media to find out what exactly is supressed.

But the report is on less-secure ground when it seeks to control the internet, most notably the increasing trend of suppressed material being circulated. Because this is often hosted on overseas-based websites that are not subject to New Zealand law, there is a strong element of futility in much of what it suggests.

As I said a few days ago, if the intent is simply that an ISP removes supressed material actually hosted on its network, upon request from a Judge or Crown Law, I don’t see that as unreasonable. If however it is intended to require ISPs to block overseas based material, that will be futile and inappropriate.

The Press editorial:

A fundamental principle in the operation of the courts in New Zealand is that they should conduct trials in public and that it should be possible to freely report on those trials. …

It is heartening therefore the Government has indicated it will look favourably on a report this week by the Law Commission aimed at refocusing the courts’ attention on the basic principle of open justice, bringing greater clarity to the rules on suppression and ultimately making it harder to get. The commission has sensibly proposed that the grounds for suppression should be set down in statute. The reports suggests seven grounds, of which the most significant would probably be that suppression should be granted only where it would prevent extreme hardship to the accused and/or those connected to the accused.

The challenge will be to stop “extreme hardship” being watered down.

The Dom Post:

The commission recommends that the grounds on which suppression may be granted be clarified and tightened so they become “transparent, explicit and consistently applied”. It suggests, too, that judges must give reasons for granting or declining a suppression order and that temporary orders granted at an accused’s first appearance have an expiry date.

Sir Geoffrey and crew have also been bold. In recommending that the maximum penalties for breaching suppression orders be bumped up to six months’ jail or a $100,000 fine for a media outlet, they have also accepted the argument that the corollary must be that suppression orders are easier to track down. They say “the case for a reliable and up-to-date register of suppression orders to allow journalists to confirm the terms and duration of the order becomes even more compelling”. Hallelujah.

The mainstream media, who attend courts as the public’s surrogates, will largely applaud these recommendations – they almost never deliberately flout a court order. But it is hard to abide by the rules when it is hard to ascertain just what orders are in place.

I agree absolutely.

However, fairness demands that any penalties facing editors equally face bloggers who sound off about those before the courts in the anarchy of the blogosphere before and during a trial. If the powers-that-be determine that that is just too hard, they need to ask themselves about the value of suppression law in the internet age.

The editorial here is mixing up issues of suppression orders and contempt of court. They also talk about the blogosphere when many of the problems occur on Trade Me forums, Facebook, Twitter, message boards, Usenet etc etc.

Now I’m the last one to say bloggers should not obey the law, and in fact have gone to considerable lengths to try and obey the law. But there will be interesting issues if you take the editorial position of wanting bloggers to face the same penalties as editors (despite not having giant multinationals standing behind you to pay the bills). Presumably the editorial writer would then support bloggers, not just media, being able to access the proposed register of suppression orders – and also to be able to get accredited in courts to report on trials.

The Law Commission published yesterday a report and recommendations to Government on suppression order. One chapter deals with the Internet, 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 InternetNZ, the Law Commission and the Ministry of Justice.

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.

The Dom Post reports:

A top entertainer who shoved a young woman’s head into his genitals in an alleyway is fighting to keep his name secret because he says publicity will destroy his career.

I’ve got a solution. How about you don’t shove a young woman’s head onto your genitals, and then you won’t get adverse publicity?

The Police have not objected to name suppression, so I guess he will get it.

1. Great to see a $100,000 fine for Lance Atkinson for spamming. The law was designed to allow us to target the big time professional spam outfits who make us pay through our ISP costs for their spamming. It’s all about property rights, and they have no right to make me pay for them sending me and others billions of emails.
2. The Law Commission is looking at the vexed issue of suppression orders and the Internet. It is a very worthy topic. As a web publisher myself I find it difficult to obey the law, because I don’t know what information has been suppressed, so it is difficult to police the site for mentions of it, when you don’t know that the info itself is suppressed. The entire suppression and contempt regime does need to be evaluated against the Internet age we are in, and this looks a useful first step.  You can read the paper from the Commission here, and submit on it by February.

I’ve just been interviewed by Radio NZ on the ruling by Judge Harvey that media are allowed to report the names of two murder accused, but that online media can not. The interview should be on Morning Report tomorrow.

Now Judge Harvey is not some fuddy duddy Judge who does not understand the Internet. He is in fact probably the most tech-savvy Judge we have, and he is the author of the main textbook on Internet law in NZ. I actually first met the Judge many years ago through Usenet, the Internet newsgroups.

Judge Harvey seems to be trying to do a middle course between total name supression and no name supression. It is an interesting concept, but one that does raise significant issues.

As far as I can tell he is not worried if potential jurors hear the name on the news tonight or in the newspaper tomorrow, but doesn’t want them to be able to Google the name (and I have just done Google searches on their names) once the trial starts. The issue of jurors doing research on defendeants on Google is a growing problem.

However by banning the names online, this may lead to overseas blogs reporting the names deliberately. In fact overseas newspapers may also do so, as this ruling may be one of the first in the world – to apply only to Internet media.

It also gives local media a challenge. It is pretty obvious the NZ Herald has to remove the name from its web version of its stories. And TVNZ and Radio NZ can not have the names in their web stories. But does TVNZ and Radio NZ etc have to remove the names from the digital version of their audio and video files? They will not be picked up in Google, but are online. Also are there issues with live streaming of their broadcasts?

Blogs may have some issues also, as commenters may have mentioned the names of accussed, but the blog owner may not be aware those names are the names that have been supressed. Oh it goes without saying I will be unimpressed if anyone mentions their names on this blog.

I hear various media are looking to appeal the decision. It is certainly going to be fascinating either way for those of us interested in technology and media law.

Sunday Star-Times Editor Cate Brett has resigned to take up a job as Senior Policy and Media Adviser to the Law Commission.

Fairfax have denied the rumour that they have appointed Nicky Hager as the new Editor

Professionally, I’ll be very interested in Brett’s new work:

Ms Brett, who has a long-standing interest in media law, is currently researching the impact of new media on free speech, including suppression and contempt of court.

I have on my list of things to try and organise, when I have the time, is a seminar involving Internet, media and legal industries regarding exactly those issues. The existing laws seem very unworkable in the Internet age. I don’t mean that Internet sites are exempt – but that Internet publishers often breach supression orders because they don’t know the detail of the supression order. There is no mechanism for publishers to check if something is supressed.

The Dom Post reports:

A fading pop star who admitted punching a Wellington City Council worker in a drunken scuffle on Courtenay Place has won a fight to keep her name secret after paying $300 and apologising.

The 26-year-old has also escaped conviction after being granted diversion …

She has previously recorded a hit single but has since struggled to make inroads into the industry.

Court documents show she was drinking on December 14 and was involved in a Courtenay Place confrontation about 4am.

Though a court attendant told The Dominion Post the case had been withdrawn and would not be called, her lawyer successfully sought permanent name suppression. Police consented.

Why on earth should she get name suppression? I have no problems with diversion. I’ve had it myself. But what on earth is the rationale for granting name suppression? Is she going to be massively harmed by people knowing she had a drunken scuffle? Justice should be open, not secret.