Editorials and the Minister on supression orders

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.

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