Despite the legal maxim that the law should not spend effort on a futility, stopping the online release of suppressed information in should not be regarded as a lost cause, said Attorney-General Chris Finlayson, opening a seminar under the title “R v the internet” in Wellington last week.
The event was organised jointly by the Ministry of Justice, the Law Commission and InternetNZ.
The problem with release of supressed information relates mainly to leaks using overseas websites. Locally, a court order to take down offending information is respected. Domain Name Commissioner Debbie Monahan says her office has actioned such orders through the registrar of the offending site and that the process works effectively.
The mood of the meeting went broadly with the view that something could still be done, even across national boundaries, to remove information that is in contempt of court a short time after it becomes evident.
Solicitor-General David Collins suggested major overseas ISPs and content hosts such as Yahoo could be approached through their local offices and persuaded to take down infringing content and that they might thereby solve the bulk of the problem and set an example for smaller companies.
Such an approach might not always result in the withdrawal of material that was already up, said media-law expert Steven Price, but knowledge of past successful actions “might provide a disincentive to people to put it up there in the first place”.
Several speakers alluded to the practice of both internet sites and mainstream media issuing hints that could lead to deduction of a suppressed name but not technically breach the suppression order. These might be more difficult to deal with, they acknowledge.
The recent case of a “high-profile entertainer” who admitted a sexual offence against a young woman, but retained name suppression was widely alluded to. Hints found online by blogger David Farrar included an online photographic montage of objects punning on the offender’s stage name.
A visit to the putative culprit’s Facebook page found comments frankly accusing him of being the entertainer in question. He had not responded.
Farrar said a poll of readers of his Kiwiblog site found 71% claimed to know the name — and there were no wrong guesses, he added.
The seminar also considered the problem of jurors obtaining information from the internet during a trial that might influence their decision and compromise the principle that they should judge guilt or innocence only on the evidence presented in court.
For a judge to issue a direction to the jury not to look up background information might, perversely, encourage them to do so when they might otherwise not have thought of the idea, said Price.
If lawyers assume jurors will look up information, said Queen’s Counsel Robert Lithgow, then they will approach the trial in the light of that knowledge; greater openness might then lead to greater balance.
Some speakers from the floor suggested that the chance to fill in background on, for example, a complex piece of expert testimony could lead to a fairer verdict. “How does keeping people ignorant improve the chance of a fair trial?” asked consultant and ICT broadcaster Hamish MacEwan.
Blogger Bernard Hickey suggested media people and lawyers get together to discuss the questions further. The seminar was reminded that there is a High Court media committee, which has internet-related issues slated for discussion at a meeting in the near future and this could act as a focus for future teasing out of approaches to some of the problems.