The Law Commission yesterday released a report on ‘Suppressing Names and Evidence’. It’s timely given that Vince Siemer was arrested just last week for stating on his website that the judge in the Oct 15 ‘terror case’ has ruled that [lprent: gagged – see my comments at bottom] used by police were unlawfully obtained. Oops, guess I just breached the suppression order too!
The Law Commission report proposes a number of recommendations, including that the starting point for considering publication of evidence and names should be a presumption of open justice. A necessary recommendation when you consider that what I said above in breach of a suppression order does not go into any details that could in any way prejudice a trial. From the report:
The court should have the power to make an order for the suppression of evidence or submissions where the court is satisfied that:
(a) the interests of the security or defence of New Zealand so require;
(b) there is a real risk of prejudice to a fair trial;
(c) the order is necessary to avoid undue hardship to victims;
(d) publication would endanger the safety of any person; or
(e) publication would be likely to prejudice the interests of the maintenance of the law, including the prevention, investigation and detection of offences.
The report also recommends that a national register of suppression orders be set up. This is a great idea, and should be available online so those considering publishing details of court proceedings can first check if they will be in breach of a suppression order.
While the report seems to have some good recommendations on when suppression orders should be allowed to be made, its recommendations around publication on the internet show that the Law Commission still has very little idea of how to deal with technology. Their report on Search and Surveillance Powers essentially conceded that there was no way the law could keep up with technology, and therefore pretty much recommended treating computer searches and any kind of surveillance the same as a normal search. That led to the Search and Surveillance Bill now going through the house, which has severe implications for our civil liberties. This new report recommends that:
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.
This recommendation will have many perhaps unintended consequences. For a start, the New Zealand legal system only has jurisdiction over websites hosted in this country, so sites like The Standard which are hosted overseas will be exempt. This gives a huge disincentive to hosting sites in NZ, and will cause problems much like those anticipated in the s92a Copyright Act amendment.
There also seems to be an assumption that it is actually possible to delete content from the internet. Many of you will have noticed a number of examples recently where the author of a blog post has removed their post soon after publication, only to find it widely published elsewhere (case in point, the attempted removal of Chris Carter’s post comparing John Key to Mussolini). The report seemingly acknowledges this point, even stating that ‘The information may be quickly relocated to a vast number of websites’, but then proceeds to ignore it in its recommendations.
A more appropriate way to deal with suppression order problems on the internet would be to punish those actually responsible for the content. How is an ISP or website owner to verify something is in fact in breach of a suppression order? The person responsible needs the opportunity to prove that they didn’t breach a suppression order.
Even punishing the owner of a site could have problems, as you could end up with lprent being punished for my decision to breach a suppression order on this site because he technically owns it. In the case of this blog, lprent is essentially a service provider – he does not control what I use that service for (within reason). Forcing the ISP or owner of a site to produce information leading to the identity of the person responsible would be much more reasonable.
I don’t have all the answers, but the Law Commission is funded by the government to review areas of the law that need updating, reforming, or developing. One would expect them to do better than this!
lprent: While I agree completely with Rocky, especially having seen her been a victim of a judicially sanctioned and in my opinion completely invalid search warrant, I’ve removed the technical breach of the suppression order.
This is a debate that should be held in the open, and the suppression order that I gagged rocky on above seems more designed to stifle debate on the role of the NZ Police than it does for any legal use.
Under the upcoming Search and Surveillance Bill, search warrants may be done by the police without having even the registrar’s (who currently seem to approve most search warrants) looking at them. For some of the search warrants I’ve seen, this appears to involve the police trawling google to bulk out application with vaguely relevant material that has nothing to do with the people targeted. Registrars appear to sign off on these at the request of the Police. In other words, the applications I’ve seen for search warrants can easily be described as bullshit.
Frankly, I wouldn’t trust the NZ Police not to abuse the new powers for issuing search warrants. Young of the Law Commission seems to be saying that these would apply “where a court would have signed off on them anyway” (my paraphrase). However some units of the NZ Police have been steadily abusing the use of search warrants in the recent past. Where they have been unable to gain what they want by judicial means, they now appear to have done the actions with premeditated illegal intention.
Perhaps if the courts took more care over the issuing and policing of the search warrants under the existing law, there might be a position where we could feel more confident that the police have some standards to judge their use of search warrants. At present this is largely lacking. This leaves the courts and the IPCA with no standards to judge the police when they start issuing their own search warrants.
I’d suggest that people have a look at kiwipolitico on November 6th, 2009 where there is an extensive discussion on the subject in relation to the October 15th ‘terrorism’ case. This is a public debate that has been stifled by suppression orders for the last two years.
rocky: Just a further note on the search warrant served on me, since lprent brought it up. I won the case in court, and have no conviction as a result. I’m pretty sure the search warrant would have been overturned if appealed to the high court, given that it was a very minor charge and was about a public protest that I never would have denied being at. Unfortunately costs meant I couldn’t challenge it further – lprent spent $30,000 of his own money on the case to support Jesse Duffield and myself. Lprent was particularly concerned with the computer seizures, as if they’d taken his computer, they would have inconvenienced the many people whose emails and websites he hosts.]