“It is silly of you, for there is only one thing in the world worse than being talked about and that is not being talked about.”
This article considers the Court of Appeal decision in X(CA226/2020) v R (referred to hereafter as X v R) and its discussion of non-publication orders, extreme hardship and the impact of social media as an element of extreme hardship that might justify a Court in considering whether or not to make a non-publication order.
I shall commence with an overview of the statutory provisions regarding discretionary non-publication orders pursuant to s. 200 of the Criminal Procedure Act 2011. I shall then proceed to a consideration of the decision of the Court of Appeal and focus especially on its analysis of the role of social media as an element of extreme hardship which may provide grounds for the exercise the discretion to make a non-publication order. In the course of that discussion I shall carry out an examination of exactly what social media is – a slightly more nuanced consideration than that undertaken by the Court. I shall conclude with a consideration of some of the possible implications of the decision and how, in many respects, despite its apparent willingness to engage with new media, there may be some unintended consequences that flow from the case.
Discretionary Non-Publication Orders
The Statutory Background
The Criminal Procedure Act 2011 contains a number of provisions that regulate when the media may report proceedings before the Court, when the public may be present before the Court and, in those circumstances whether and when the news media, in their role as public surrogates, may report those proceedings. There are provisions that automatically impose non-publication or suppression orders in certain cases.
There are provisions which give the Court a discretion to impose non-publication orders. The starting point for such consideration must be the principle of open justice and that the proceedings before the Court and the details of those appearing should, prima facie be amenable to publication. The Act sets out very clear guidelines applicable to the making on non-publication orders relating to defendants. In addition there are provisions applicable to the suppression of names and details of witnesses, victims and other connected persons. There are also provisions which deal with the non-publication of evidential material and the circumstances under which such orders may be made.
Section 196 of the Criminal Proceedings Act 2011 provides statutory recognition of the principle that Court proceeding should be open to the public although it recognises that there are exceptions where the hearing may be “on the papers” or where sections 97, 197 and 199 come into play along with the provisions of any other enactment.
Non-Publication of the Identity of the Defendant
The making of discretionary non-publication orders – colloquially referred to as suppression orders – has been contentious for many years, notwithstanding clear directions from appellate Courts.
The making of a suppression order is discretionary, although the discretion is not unfettered and must be exercised judicially, taking into account the tests that are set out in s. 200(2). The exercise of the discretion arises after the Court is satisfied that one or more of the matters referred to in s. 200(2) is likely to follow. In exercising the discretion, The Court must recognise that the starting point is the prima facie presumption in favour of open justice and openness in reporting Court proceedings.
The discretion to order non-publication should be used sparingly, and is an exception to the principle that the public has the right to know the identity of those who appear before the Courts. In serious cases suppression orders should be made with the utmost caution.
The Threshold Test
Before considering whether or not to exercise the discretion the provisions of section 200(2) must be satisfied. This is the threshold test.
There are eight criteria. The court must be satisfied that publication would be likely to:
- cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
- cast suspicion on another person that may cause undue hardship to that person; or
- cause undue hardship to any victim of the offence; or
- create a real risk of prejudice to a fair trial; or
- endanger the safety of any person; or
- lead to the identification of another person whose name is suppressed by order or by law; or
- prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
- prejudice the security or defence of New Zealand.
It should be noted that the criteria are stated disjunctively.
A very high level of hardship must be established. This must go beyond the normal sort of hardship such as embarrassment, severe suffering or privation. Extreme hardship must be greater than the “undue hardship” test in s.200(2)(b) and (c). It must be well beyond the ordinary consequences that may be associated with publication. There must be a comparison between the hardship argued and what might normally attract in the case of publication of the name of the defendant.
The test for assessment of extreme hardship is an objective one which should take into account the circumstances and seriousness of the offence and of the particular defendant. Matters such as mental health, suicide risk, emotional distress, youth and rehabilitative prospects may be examples.
The effect upon family members may be taken into account when assessing extreme hardship. Circumstances such as possible fatal consequences for the wife of the defendant who had a heart condition, similarity with a unique name and “incalculable consequences” upon family members and possible employment problems have been taken into account. 
However, economic factors do not easily take the test beyond the threshold. Financial loss or some form of economic hardship often follow an appearance in Court or an allegation of offending. Name suppression should not be used to protect economic or business interests.
What could amount to extreme hardship and some of the external factors that might be taken into account comprised the central issue in the case of X v R. Because that is the focus of this article I shall consider two other matters that are significant. One is the exercise of the discretion and the other, although not immediately relevant in X v R, is that of non-publication of the names of celebrities.
Only when one or more of the matters referred to in section 200(2)(a) – (h) arise does the exercise of the discretion come into play. The discretion must be exercised judicially. The Court must make up its mind on reasonable grounds and there will necessarily be an evidential onus on the person seeking suppression to provide reasons or a basis for such an order. The element of open justice must be considered and may prevail unless the circumstances clearly favour the making of an order. Factors that may be taken into account in weighing the competing interests are:
- whether the applicant has been convicted,
- the seriousness of the offending,
- the applicant’s youth and the likely impact publication will have on his or her prospects of rehabilitation
- other circumstances personal to the applicant
- the interest of victims and the interests of other affected persons
- circumstances personal to the defendant,
- the views of the victim
- the public interest in open justice and in knowing the character of the offender
- the presumption of innocence
Once a conviction has been entered the weight is more in favour of publication than for suppression. Axiomatically, the presumption of innocence cannot be invoked. There is a strong public interest in knowing the identity of the defendant and any past history of offending that he or she may have. The additional element of a discharge without conviction pursuant to section 106 of the Sentencing Act 2002 arose in X v R.
In exercising the discretion the Court must be satisfied as to the likelihood of one of the consequences set out in section 200(2)(a) – (h). There must be a real or appreciable risk that the consequence will occur and that cannot be discounted.
Notoriety and “Celebrity”
Section 200(3) makes it clear that that fact that a defendant is well-known does not of itself mean that publication of his or her name will result in extreme hardship for the purposes of section 200(2)(a). This subsection was enacted in response to the perception that “celebrities” or those who had a high public profile were arguing that there would be an additional “sting” arising from publication of their names. The reality is that even although that might be the case, the Courts have refused to make such a distinction. It has been made clear that the Courts should not create a special echelon of privileged persons who would enjoy suppression, where their less fortunate compatriots would not.
It must be remembered that although celebrity in and of itself will not constitute extreme hardship, it will be a factor that the Court may take into account, along with other matters, to assess whether or not extreme hardship will be caused. Furthermore, the subsection applies only to the celebrity and not to anyone who may be connected with him or her. In that respect it acts as a qualifier to section 200(2)(a). It does not qualify any of the other grounds applicable under section 200(2).
I shall now turn to discuss the case of X v R.
X v R
X was discharged without conviction on two common assault charges. These arose from X’s inappropriate inebriated behaviour one evening at a Labour Party youth camp in February 2018, when X was 20.
The allegations were that he put his hand down the pants of another (18-year-old) young man as he was walking past him. X put his hand inside the young man’s underwear and grabbed his penis and testicles for around a second.
Later, around midnight, X assembled with several others for a group photograph. While seated, X reached out and put his hand down the pants of a 16-year-old young man who was also seated for the photograph. X’s hand went on top of the young man’s underwear and reached his genitals before it was pushed away.
A short time later, X again put his hand inside the front of the other’s pants, but his hand was quickly pushed away. An apology was made to the second young man later that night and to the first young man next morning.
In the District Court
Initially five charges of indecent assault were laid and came before the District Court. When the matter went to trial a resolution was reached and the result was that X faced two charges of indecent assault. An application was made for a discharge without conviction which the Crown did not oppose.
An application for name suppression was made and the Judge concluded that the extreme hardship threshold had not been met even although X presented as a first offender of otherwise good character.
In the High Court
X appealed to the High Court. In the High Court Whata J considered:
- The scale and nature of the media coverage
- The likely vilification of X as a sex offender
- The likely impact of publication of X’s name on his ability to gain employment
- The likely impact on X’s family and community.
What J noted that media coverage both in mainstream media and on social media had been extensive. He accepted that the media coverage would likely have a significant impact on X, his family and his community, noting that “the imprint this type of coverage will leave with the public could be deep and long-lasting”.
The reputational impact if X’s name was published was likely to be severe and that he would likely be a target not only for legitimate criticism but for unfair vitriol and vilification as a sex offender. Coverage had already had an adverse impact. X had been dismissed from his job and any future employment could be imperilled.
However, Whata J found that the extreme hardship test had not been met. He said:
Given this, the harm [X] is likely to suffer if his name is published is,in my view, extreme in the ordinary sense of the word. But, as stated in D, to qualify under the CPA, the claimed hardship must be something that does not usually attend a criminal prosecution and, ordinarily, the distress and other consequences of media reporting (including vilification and job loss) would not qualify as hardship, let alone extreme hardship. There is something unfair about making this discount in the hardship calculus in this particular case, because of the lack of correspondence between the scale and nature of the media coverage and the actual offending. But that point is one that might be made in a number of cases, and is not strong enough to warrant departure from the orthodox position. And when that orthodoxy is applied, I am unable to find that the publication harm to X amounts to extreme hardship. In short, much of the identified harm is a natural consequence of media coverage of high profile criminal proceedings.
Although it was not necessary for him to do so, in the event that he was wrong about extreme hardship he was of the view that the discretion to suppress X’s name should not follow, relying on the importance of the open justice principle and the requirement of transparency of court processes to maintain confidence in their integrity and independence.
The Court of Appeal
The Issue of Leave
X sought leave to appeal to the Court of Appeal.
Leave to bring a second appeal in a name suppression case must be declined unless the Court is satisfied
(a) that the proposed appeal involves a matter of general or public importance; or
(b) that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
The application for leave stated that there were matters of general or public importance. This was acknowledged by Whata J who said
“this case raises difficult issues about the application of orthodox principles to the facts of this case, and the balance between the public’s right to know and an acquitted individual’s right to be left alone.”
In a somewhat generalized submission it was argued that it was a matter of public importance for this Court to consider the complex interplay between name suppression principles and deemed acquittals, and the impact of extensive media reporting in this unique highly politicised case. The nature of this issue was not specifically identified but was developed by the Court of Appeal later in its decision.
However, the Court considered that the issue of leave could be considered under the miscarriage of justice ground and the submission that What J had conflated ordinary hardship with extreme hardship.
The Court said that in considering extreme hardship
The correct approach is to identify all likely hardship arising from publication, as the Judge here did. But the ultimate assessment of whether the likely hardship would be extreme must be based on all such hardship, looked at cumulatively. It is not “orthodox” to discount some of the identified hardship on the basis it somehow does “not qualify as hardship”. It must all be factored into the “hardship calculus”.
The Court found therefore that there was an error of law in the approach adopted which allowed it to consider the matter afresh.
Revisiting Extreme Hardship
In essence the Court agreed with Whata J’s identification of relevant factors and his assessment of them. However, there were two other matters that the Court considered were highly relevant to the hardship inquiry and these two factors together with those identified by Whata J took the matter over the extreme hardship threshold.
Those factors were the uniqueness of X’s name and the impact of social media.
What’s in a Name?
It was pointed out that X had a name that was unique. No other person had the same name. It was immediately identifiable and there could be no doubt that he would be the person named in mainstream media reports. It also made him a clear and easy target on social media. Potential employers, present or in the future, would have no difficulty making the link. The harm, if his name were published, was likely to be greater and more enduring than others whose names were published in the context of criminal proceeding and, impliedly, may be more common or less unique.
Furthermore X’s name identified him as Muslim and this gave rise to an appreciable risk that he may be targeted on social media, not just because of the sexual aspect of the charges but that he may be vilified due to his cultural or religious background which could not be seen as an ordinary consequence of publication.
The Impact of Social Media
The Court embarked upon a discussion of social media and the effect flowing from publication. It noted that the issue had not been the subject of detailed discussion in the Courts below. The Court considered that the harm likely to be inflicted upon X by social media was highly relevant.
The Court started by considering the role of publication of proceedings as an aspect of open justice. The fair reporting of the criminal process, including the names of defendants, is central to that concept.
An aspect of the fairness of reporting is that mainstream media (MSM) is governed by formal guidelines. The standing of members of the media to be heard in criminal proceedings about name suppression is set out in s. 210 of the Criminal Procedure Act 2011. The member of the media must be a person who is reporting and who is either subject to or employed by an organisation that is subject to—
- a code of ethics; and…
(ii) the complaints procedures of the Broadcasting Standards Authority or the Press Council.
The Court of Appeal made reference to the Press Council, possibly based on the fact that neither the Statute nor the Ministry of Justice Guidelines have been updated to reflect that the Press Council has been replaced by the New Zealand Media Council whose remit is significantly wider than that of the Press Council and which includes what are referred to as “Digital Members” including well-known bloggers and on-line news aggregators.
The supervisory role of such an organization is seen as important because it imposes professional constraints upon MSM together with oversight by the Courts. Because such reportage is constrained and should be fair and balanced, it is unlikely (of itself) that publication of a defendant’s name in mainstream media will give rise to extreme hardship.
Social Media Commentary
The Court then went on to consider commentary on social media and observed that there can be no reasonable expectation that reportage will be fair and accurate, nor is there any realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case. It notes that this represented a problem with which the Courts had yet to grapple.
The Court then made particular reference to some of the very negative aspects of social media use such as trolling, doxing and internet vigilantism. The definitions used by the Court in this context are unremarkable. To “troll” is defined in the Oxford English Dictionary as “To post a deliberately erroneous or antagonistic message on a newsgroup or similar forum with the intention of eliciting a hostile or corrective response.” The term “doxing” does not appear in the Oxford English dictionary but the Court referred to the Oxford English and Spanish dictionary which defines “doxing” as to “[s]earch for and publish private or identifying information about (a particular individual) on the internet, typically with malicious intent”. The term is derived from “dox” – an abbreviation for documents and it generally involves the publication of records of an individual which were private or difficult to obtain. It has a negative connotation because it is often a vehicle for revenge via the violation of privacy. It is a form, along with trolling and other behaviours, of internet vigilantism.
The Court of Appeal then went on to locate the history of section 200 of the Criminal Procedure Act 2011, noting that when the Law Commission advanced the test of extreme hardship in 2009 in its report Suppressing Names and Evidence social media platforms were something of a novelty. It noted that as at 2009 Facebook had been around for five years, Reddit for four, and Twitter for three. Instagram did not yet exist. Although the Law Commission was aware of these platforms and the difficulties in maintain and respecting suppression orders no consideration could possibly have been given to the universality and toxicity of social media’s current form.
The Court also made some observations of what it referred to as the “cancel” or “call-out” culture in which it said social media is weaponised against those deemed to have transgressed the norms of any online group ( or mob).
With respect, that is to take one element of a much larger “cultural” phenomenon. The “cancel culture” is a much wider phenomenon and often involves steps designed to withdraw support for (thus “cancelling”) public figures or companies after they have done or said something that to some is perceived to be offensive. It may involve the public shaming via internet platforms and in its more insidious manifestations it involves the deprivation of a platform (de-platforming) for speakers with whom a group may disagree, often accompanied by threats of violence should the speaker be allowed a platform.
What the Court did note was the effect that public shaming might have when mercilessly inflicted on young people who became embroiled in the criminal justice system.
The Court then compared the position regarding publicity some 10 years ago when publication of one’s name was generally restricted to mainstream media. That level of “hardship” was quite different from what the Court described as
“the potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill-informed publication on social media platforms is of a quite different magnitude. Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.”
The remarks of the Court in this regard are very strong and in this commentator’s view need to be read within a very limited context as shall be discussed below.
Certainly there are aspects of social media that can be highly damaging and ill-informed. This has been recognized by Parliament in the enactment of the Harmful Digital Communications Act 2015. But what the Court is doing is contrasting the approach of mainstream media which is generally balanced and subject to oversight with the chaotic cacophony that occurs in some areas of social media. The Court noted the vulnerability of young people and that the effect of “internet shaming” may be lifelong.
The Court was prepared to recognize these factors which, it said “can play out both in the assessment of whether hardship will, in any given case, be “extreme” and in the ultimate weighing exercise required in the exercise of discretion.”
Reconsidering Extreme Hardship
The Court went on to consider the specifics of the case of X, observing that he had not been targeted personally because his name was suppressed. The Court considered a catalogue of posts about the case, the intensity of them and the fact that many of them were clearly abusive and were anything but the objective reportage that one would expect in mainstream media. The Court was of the view that publication of X’s name would intensify the commentary in both number and venom.
The Court was also of the view that what it described as elements of the “cancel culture” which it described as
“a way of bringing justice to those who have escaped it: rich celebrities, corporations or privileged ( often white) offenders who “get off” with a lenient sentence. So here, it is the fact of X’s effective acquittal – which, ordinarily, might be seen as indicating something positive – that is the factor likely to fuel the social media flames. Those who are disposed to use social media in this way will regard their hateful posting as justified by their perception that X has escaped justice.”
Such public shaming could not be seen as an ordinary consequence of publication. In saying that, the Court clearly left unstated that the public shaming aspect would not be a consequence of publication in mainstream media.
Because of these factors, the Court considered that in the relatively unusual circumstances of the case, publication of his name would cause extreme hardship.
The Court went on to consider whether the discretion to make a non-publication order should be exercised. Not unsurprisingly it did. It focused upon X’s youth, his lack of previous involvement in the criminal justice process, the effective acquittal afforded by the discharge without conviction and factors which spoke strongly in favour of his rehabilitation as matters that weighed strongly in favour of suppression.
What public interest would be served by publishing his name? The Court addressed that question in this way
“In reality, the public interest lies elsewhere: in the events themselves, the circumstances in which they occurred, and in the criminal process that led to X’s discharge without conviction. All those matters have been, and can continue to be, fully ventilated by the media.”
The Court did not consider that permitting publication of his name would fulfil any social objective and that the principle of open justice should not be concerned with public shaming. Thus, the Court was stating that where in the circumstances of this case there was a high level of risk of public shaming and vitriolic commentary on social media in respect of a person who, apart from these incidents, had a positive future which could be blighted in the short and long term by such vitriol there was a line to be drawn past which the principles and interests of open justice would not be served.
As a result the Court made a final order suppressing X’s name, address, occupation or identifying particulars.
Of particular interest in this case was the recognition by the Court that there was a problem in controlling the dissemination of content on Internet platforms. It was a problem, the Court said, with which the Courts have yet fully to grapple. And this gives rise to issues regarding name suppression – the underlying premises of which were developed for monolithic, centralised mainstream media – in the digital paradigm where there is no centralized publication entity and, in contrast to centralized organisations like broadcast and print media, publication arises on and using a de-centralised and distributed system.
Taking the effect of social media into account as a factor in assessing extreme hardship is not of itself unremarkable. Social media, its use and misuse, is a societal reality that cannot be ignored. Because it is used in the communication between and about people it may be placed on the media spectrum.
What is Social Media?
Social Media and Social Networking are phenomena that have developed on the Internet and are best understood when compared with pre-digital forms of mass media communication. As I have noted earlier, when we think of media we generally think of mainstream news media such as radio, television or newspapers – basically using print or broadcast technologies. Communication using these technologies is generally in the hands of large conglomerates, centrally located with a “one to many” distribution model. In the case of broadcast technologies – putting to one side the recording of broadcast content – engagement with the content provided is on an appointment basis where there viewer\listener must be in the proximity of a receiver to view or listen to the content. Feedback, if any, is generally by means, in the case of newspapers, of letters to the editor. The ability to engage and participate in this form of communication is very limited indeed.
Social media presents an entirely different form of engagement. Rather than a “one-to-many” model social media presents a “many to many” model where anyone using a social media platform can engage in the “conversation” and share a point of view, pictures, video, lengthier comment thus democratising the information and communication space.
Definitions of social media seem to converge around digital technologies emphasising user generated content or interaction. Some definitions focus upon the nature of message construction in social media, defining social media as “those that facilitate online communication, networking and/or collaboration.” Kaplan and Haenlein briefly define social media as “a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content.”
The problem with a “Web 2.0” characterisation is that it ignores that there is a movement towards mobile handheld devices that are not web-based that contain social media tools as individual applications or “apps.” Lewis suggests that the term social media serves as a “label for digital technologies that allow people to connect, interact, produce and share content.” One of the difficulties with these definitions is that they can encompass other technologies such as email and overlook the unique technological and social qualities that distinguish social media.
A more complex definition suggests that social media can be divided into three parts:
(a) the information infrastructure and tools used to produce and distribute content;
(b) the content that takes the digital form of personal messages, news, ideas, and cultural products; and
(c) the people, organizations, and industries that produce and consume digital content.
This interesting definition identifies a transport layer, a content layer and a form of user interface. However Howard and Parks use specific platforms as exemplars. This focus upon tools overlooks their actual and potential social impacts.
The “platform exemplar” approach may widen or narrow the scope of the definition. Under this approach social media – the media for on-line communication – means online sites and tools that enable and facilitate online interaction and collaboration as well as the sharing and distribution of content.
This wide definition includes blogs, wikis, on-line fora, social networking sites such as Facebook, Linkedin, Instagram and Twitter, content communities such as YouTube, Flikr and Vimeo, social bookmarking and pinboard sites like Delicious, Pinboard and Pinterest, RSS and web feeds, web manipulation and parsing tools, web creation tools and embeddable multimedia.
The Oxford English Dictionary defines social media as “websites and applications which enable users to create and share content or to participate in social networking.” Social networking is defined as “the use of dedicated websites which enable users to interact with one another, find and contact people with common interests etc.”
The focus upon the content layer and the very broad scope of some of the definitions either casts the net too wide or leads to uncertainty and imprecision. There tends to be a general consensus of the tools that may be considered social media but a lack of consensus on what defines these tools as social media.
The definitional approach using exemplars is the one has been adopted by most commentators. Social media tools are recognisable but defining social media in this way limits the opportunity to develop a broad and robust theory of social media. An interaction on Twitter is useful as an exemplar of social media only for as long as Twitter remains stable both in technology and how users communicate through tweets. This model cannot be extended beyond Twitter. Carr and Hayes suggest that there must be a common understanding of social media that is applicable across disciplines and only then can we theorise social media processes and effects.
Although it is important to understand the technology, it is more important to understand how the technology affects user behaviours. Thus to adopt a technocentric approach to social media based on specific devices or tool affordances, often considered to be synonymous with Web 2.0 or the collaborative web, is unhelpful because it tells us little about the development of behaviour.
An additional difficulty is experienced when social media and social networking are conflated. Social network sites have been defined as “web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.” Although social network sites are usually social media tools, not all social media are inherently social network sites.
Thus it can be seen that social media have sometimes been considered as amalgamations of site features and at others defined by specific features or technological affordances, minimizing their unique communicative properties. Carr and Hayes propose a new definition that recognises social media as a distinct subset of media tools that share a common set of traits and characteristics. This is based on the proposition that the content that individuals create and consume provides an intrinsic value that is far greater than the individual site provides. The definition that they suggest is as follows:
Social media are Internet-based channels that allow users to opportunistically interact and selectively self-present, either in real-time or asynchronously, with both broad and narrow audiences who derive value from user-generated content and the perception of interaction with others.
This definition recognises that social media are a phenomenon of the Internet, that there is user autonomy as to the level of participation and that the creation or use of content in one form or another is essential. Thus the only technological aspect of the definition lies with the Internet as the basis for the communication channels.
Carr and Hayes observe that earlier attempts at definition were hampered by the following problems:
- An excessive focus upon emerging trends in technology, media and users thus limiting their temporal applicability
- Being so broad that they could apply to other forms of communication technology such as e-mail
- Being so “discipline specific” that they were too limited to be applicable for the development of theory.
On the basis of their definition and without necessarily becoming too “platform” or “exemplar” specific Carr and Hayes have divided a number of Internet-based communications technologies into social media and those that are not a social medium.
|Social Medium||Not A Social Medium|
|Social network sites – Facebook, Google +, YouTube, Yelp, Pheed Professional network sites – Linkedin, IBM’s Beehive Chatboards and Discussion fora Social/Casual Games – Farmville, Second Life Wiki “Talk” pages Tinder Instagram Wanelo Yik Yak||On-line news services – NY Times Online, PreezHilton.com Wikipedia Skype Netflix E-mail Online News SMS and Texts Ooovoo Tumblr Whisper|
It will be clear by now that social media occupies a number of different platforms, fulfils a number of different purposes and can be used and misused. This author finds it useful to follow the Twitter feeds of a number of English and New Zealand legal commentators who use social media as a means to directing followers to articles or cases of interest and at times may post one liners about particular legal problems. To my knowledge none of them have been responsible for the vitriolic commentary referred to by the Court of Appeal as characterising social media commentary.
Social Media Taxonomy
The various platforms identified as social media have certain characteristics that serve to assist in identifying precisely how engagement via a social medium takes place. In this regard it is helpful to consider developing a social media taxonomy. Rather like the definition of social media itself no universally accepted classification system exists. Scholarly and business research studies analyze social media usage behaviors and draw upon past studies to come to an understanding of how business can use social media to market products and services.
The approach that has been undertaken by French social media researcher Frederic Cavazza unashamedly approaches the development of a social media taxonomy on the basis that social media are places, tools and services allowing individuals to express themselves in order to meet, communicate and share. His classification system has been based on first identifying social media tools and classifying them broadly under headings based on what particular aspects of Internet social activity they fulfil.
His first and perhaps best-known classification was developed in 2008 and is entitled “The Social Media Landscape” and is presented in the form of a diagram which reflects subsets of activity in which users may engage.
These include publishing by means primarily of blogs but also by collaborative systems known as Wikis of which Wikipedia is the best example; by platforms devoted primarily to sharing; by discussion fora; by social networking; by microblogging – Twitter is the best known example; by lifestyle activities which include Lifestream, Livecasting; by gaming forms of interaction like virtual worlds of which Second Life is an example, social games and MMO or Massive Multiplayer Online Games which have a significant social component associated with the game.
Cavazza himself acknowledged the dynamic and disruptive nature of Internet social media platforms. Each year he has updated his Landscape which represented the changing face of social media. Online social media is an evolving field with new platforms and features. Access technology has evolved as well. The rise of the mobile or handheld device such as the tablet and the smartphone have changed user access habits. Indeed, smartphones are now the first devices used for communication.
The fate of Google + provides an example of the volatility of Internet social media\networking platforms. Although Google + had featured in Cavazza’s classification for some time it was a platform that had not achieved widespread acceptance and in early 2015 Google developed products knows as Photos and Streams which were elements of Google + but are now distinct from the social network. At the same time the profile links began to disappear. As may be seen from the earlier discussion, profiles form a fundamental part of a social media\network platform. On the other hand new social media\networking platforms have become available, some of them capitalising on live video streaming services such as Meerkat and Periscope.
Not only have social media platforms changed and evolved, but so has Cavazza’s classification system. In 2012 he based his classification not only on a reduced number of activity classes but also surrounded those activities with the various types of device that could be used to access social media.
The latest iteration of Cavazza’s classification system is further simplified. It has become one large ecosystem with six major usages. At the center of social media activity are Facebook, Instagram and associated platforms. Others present are Twitter, Linkedin, YouTube and Snapchat. Social Media platforms fulfil six major usages or activities in the social media\networking ecosystem, namely Publishing, Sharing, Messaging, Discussion, Collaborating and Networking. Mobile applications such as WeChat, Hangouts and Snapchat occupy a central position based primarily upon their multi-functionality within the social media ecosystem.
Cavazza has recognised the importance of the various devices that might be used to interact with Social Media platforms. The proliferation of connected devices such as tablets, desktops, laptops and particularly handheld devices such as smartphones demonstrate the actual and potential ubiquity of social media platforms
Why is this classification important? Primarily a form of classification locates a particular platform within a certain Internet based social interaction. Although the platforms all share the characteristics of social media such as profiles, sharing, communities and the like, they have sometimes subtle, sometimes significant differences in the way in which they work.
Whilst the law regulates behaviour rather than a technology, within the field of Internet based communications it is my contention that there must be an understanding of what the technology does and how it works. A proper understanding of the technology and its purpose will lead to correct and proper decision making that locates a behaviour within its correctly stated technological context.
The Narrow View of Social Media
The difficulty is that the comments of the Court of Appeal have been interpreted as a true characterisation of social media whereas, as will now be apparent, it is in fact a very narrow view of a much larger and more complex phenomenon. Alison Mau picks up on this and has suggested that “for the first time in a New Zealand court, the true, feral, unsocial nature of social media has been examined” and then went on to refer to the Court’s comment that “There can be no reasonable expectation that such reportage (on social media) will be fair or accurate. And there is no realistic way of controlling its content or its spread.”
Mau refers the matter to Professor Warren Brookbanks who sadly adopts the rather weary rhetoric applied to difficulties in regulating social media in describing it as the Wild West (where) people can say the most terrible and destructive things and not be held to account. Sadly, it seems that Professor Brookbanks has overlooked the Harmful Digital Communications Act 2015.
For the purposes of the case, the Court of Appeal has highlighted some of the more unpleasant aspects of social media. But this cannot nor should it be taken as a characterisation of social media in general. Mau herself observes that three and a half million Kiwis are regular users of social media. I am sure that there is no suggestion that all these users are trolls or doxers. Facebook is way out in front as the popular choice and indeed Facebook Live is the platform of choice for the Prime Minister, even although that aspect of Facebook was also responsible for live-streaming the 15 March 2019 massacre.
The Court noted the particular vulnerability of young people in the face of online shaming. It observed that
“ The practical aspect is that the only way a person can protect or shield him or herself from ongoing exposure to online shaming is to go, themselves, offline. And as Danielle Citron has noted:
When individuals go offline or assume pseudonyms to avoid bigoted cyber attacks, they miss innumerable economic and social opportunities. They suffer feelings of shame and isolation. Cyber mobs effectively deny people the right to participate in online life as equals.”
With respect, once again the issue is a little more nuanced that the binary Internet “on” or Internet “off”. In 1997 A Michael Froomkin developed a theory of Internet Governance known as Regulatory Arbitrage. Because of the distributed nature of the Internet, users could “migrate” to a place or regulatory regime that would give them the most favourable treatment. Users could “choose” where they might wish to seek services and base their activities.
Although Froomkin’s example was in the field of choice of jurisdiction or choice of law, the “arbitrage” model is applicable. A user has the option to disengage from a platform where harm is being caused or where communication is hostile and engage with a more “user-friendly” environment. This does not end the economic and social opportunities afforded by the Internet, but rather like a person moving to a new neighbourhood, the opportunity is there to forge new relationships and new communication flows.
Commentators focus upon messages posted on social media websites, or the various activities conducted on social media rather than examining the medium itself and trying to make some sense of that. The focus, as is so often the case, is on the message rather than a consideration of the medium and how it affects or drives communications behaviours. Michael L. Kent states the issue in this way:
“If we take McLuhan’s premise from 1964 that media are “extensions of humans,” then a reasonable question might be, how do social media extend our senses and experiences, not simply how are social media used, which is akin to a study of newspaper readership or Nielsen ratings. I believe that most scholars, professionals, and social media users would agree that social media are different in many ways than the traditional print and broadcast media.”
The fact of the matter is that social media exemplifies the paradigmatic nature of the change in the way we deal with and communicate information within the digital space. Social media is a complex phenomenon. It has, as Petra Theunissen suggests, co-existing multiple states and potentialities rather than simply a sender to receiver information dissemination tool that has been the approach of most social media commentators. Theunissen concentrates not upon the content of communication, which has been the focus of most studies, but upon the logic and potential of the medium and the technology. It is to be hoped that in subsequent examinations of social media phenomenology to Court will take a more nuanced view.
A consideration of hostile treatment on social media as an element of extreme hardship is not going to be available to every person seeking name suppression. But there are three possible consequences that may not have been intended by the Court of Appeal
Social Media Shuts Out Mainstream Media
Assuming for the moment that MSM engages in responsible journalism were it not for the social media element, X’s name would more likely have been published in a newspaper or on broadcast news. Indeed, it may well have been published in online MSM platforms.
Effectively MSM has been excluded from fulfilling its role in ensuring the importance of transparency and of open justice because of the toxic level of discussion on social media which has tipped the balance in favour of extreme hardship. There is a certain irony in this in that MSM reporters frequently use social media content for their stories and Twitter feeds regularly appear in online stories published by MSM.
In this commentator’s view MSM, who have a right to be heard in applications for suppression orders should be alert to ensure that their role in the effective reporting of court proceedings is not undermined by undue emphasis upon the impact of social media in suppression cases.
The Problem of Celebrity
As I earlier noted, section 200(3) of the Criminal Procedure Act 2011 provides as follows:
“The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).”
This subsection was enacted to ensure that “celebrities” who wished to avoid unwelcome publicity surrounding their criminal court appearances could not rely of their “celebrity” in and of itself to be a basis for extreme hardship.
It is perhaps an ironic unintended consequence that high profile individuals – celebrities if you will – are more likely than not to be and frequently are the subject of comment and discussion on social media. Therefore, if a “celebrity” is able to point to adverse ill-informed and harmful social media commentary, that factor might strengthen a case for claiming extreme hardship that would justify an application for a suppression order.
Thus the celebrity is better placed to seek a non-publication order because, by virtue of his or her celebrity, social media harm is more likely to arise. Celebrity, which should not of itself be a ground for extreme hardship may, by virtue of its social media magnetism, become a basis for extreme hardship.
The Curated Persona
While the law relating to suppression deals with the control of content, the reality is how does one provide effectively a form of anonymity in a paradigmatically different publication environment where the technology itself presents the problem of much greater proportions than was present in the pre-digital paradigm.
Within the context of the so-called “right to be forgotten,” which deals with the removal or curation of information about an individual that may no longer be meaningful or relevant, the answer has been not to remove the content but to de-index or de-reference links to the content that may appear on search engines.
The Google Spain and subsequent right to be forgotten cases deal with the curation of image after publication. However, the unusual qualities of digital technologies can allow for the creation of a body of information that may not be entirely legitimate. This follows from the unusual quality of permissionless innovation which I have discussed elsewhere.
It does not require anyone’s permission to set up an account on a social media platform. A non-descript e-mail address and an anonymous “persona” allows a user access to social media feeds. In so doing the user creates a fictional digital shadow – data that is left behind during internet use.
Again, using the power or permissionless innovation that same user can create a number of alternative personae who could, at the user’s behest, develop comment on social media platforms to a desired level of toxicity that would enhance and exaggerate criticism, trolling or abuse of the person setting up the account in the first place. This is a classic example of the way that the Internet can be used to create “fake news”.
Armed with evidence of this social media commentary – false and manufactured though it may be – a person could plead it as an element of extreme hardship to justify the making of a suppression order where in fact no such justification existed.
This is a negative form of information curation but the result is that not only is a suppression order obtained but the MSM is frustrated in its ability to name the individual in its reporting of the case.
I acknowledge that this is a risky and unlikely scenario but within the context of the digital paradigm easy to effect and certainly not impossible at all. It therefore means that Courts will need to scrutinise evidence of social media activity with a high degree of care.
In this note I have examined the decision of the Court of Appeal in X v R and considered some of the issues that follow from it. The impact of social media as an element of extreme hardship and the Court’s rationale for its consideration and application will be useful in some, but certainly not all cases where name suppression is sought.
There is a wider issue and that is the effectiveness of name suppression orders in the digital paradigm. Arising from this is another question which may be posed – how effective are our legal structures in dealing with information communication in the digital paradigm. But that is a much wider and more complex subject, but it is an aspect of the problem of the control of content with which, as the Court of Appeal noted the Courts have yet to fully grapple.
 Oscar Wilde The Picture of Dorian Gray Chapter 1.
  NZCA 387
 Fagan v Serious Fraud Office  NZCA 367. The first consideration is whether or not the s. 200(2) threshold has been crossed. The second is a consideration of whether the discretion should be exercised. Fagan v Serious Fraud Office at . See also Robertson v Police  NZCA 7 at  – .
 R v Liddell  1 NZLR 538. The principle has been emphasised in a number of subsequent cases. See for example Proctor v R  1 NZLR 295, Lewis v Wilson and Horton Ltd.  3 NZLR, Robertson v Police  NZCA 7, Victim x v Television New Zealand Ltd 92003) 20 CRNZ 194.
 Bond v R  NZCA 488; Robertson v Police  NZCA 7; Rougeux v Police  NZHC 979; Jung v Police  NZHC 949.
 See DP v R  2 NZLR 306; BL v R  NZHC 2878; R v Wilson  NZHC 32
 B v R  NZCA 331
 Hughes v R  NZHC 1501; Byrne v Police  3416; K v Inland Revenue Dept  NZHC 2426.
 Victim X v Television New Zealand Ltd (2003) 20 CRNZ 194; R v Paterson  1 NZLR 45.
 D(CA433/15) v Police  NZCA 541; Lewis v Wilson & Horton Ltd  3 NZLR 546
 See M v Police (1991) 8 CRNZ 14; S(1) and S(2) v Police (1995) 12 CRNZ 714; GAP v Police HC Rotorua CRI-2006-463-68, 23 August 2006; Proctor v R  1 NZLR 295; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007
 Hughes v R  NZHC 1501; NN v Police  NZHC 589; R v W  1 NZLR 35; Beacon Media Group v Waititi  NZHC 281
 Proctor v R  1 NZLR 295; W v Police  2 NZLR 17; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007
 R v [X]  NZDC 24271
 [X] v R  NZHC 658
 [X] v R  NZHC 658 at para 
 Criminal Procedure Act 2011 s. 289(2).
 [X] v R  NZHC 658 Para .
  NZCA 387 at para 
 William Shakespeare Romeo and Juliet Act 2 Scene 2
“What’s in a name?
That which we call a Rose By any other name would smell as sweet.”
 The emphasis and importance of vilification is developed in the discussion about social media
 https://www.justice.govt.nz/about/news-and-media/media-centre/media-information/media-guide-for-reporting-the-courts-and-tribunals-edition-4-1/appendices/10-8-in-court-media-guidelines-2016/ (Last accessed 8 September 2020)
 https://www.mediacouncil.org.nz/ (Last accessed 6 September 2020) Interestingly enough the Independent Chair of the Media Council is the Honourable Raynor Asher QC, a former High Court and Court of Appeal Judge. https://www.mediacouncil.org.nz/about (Last accessed 6 September 2020)
 https://www.mediacouncil.org.nz/principles#membership (Last accessed 6 September 2020)
  NZCA 387 para .
 This definition was adopted by the Court – see FN 35. It should be noted that the definition is noted as a draft partial entry in 2006 and is described as computer slang.
 Megan Garber “Doxing: An Etymology” The Atlantic 6 March 2014 https://www.theatlantic.com/technology/archive/2014/03/doxing-an-etymology/284283/ (Last accessed 6 September 2020) The Court of Appeal also cited Laura Hudson and Anita Sarkeesian “5 Ways to Deflect Nasty Online Trolls” ( Wired 22 December 2015) https://www.wired.com/2015/12/how-to-survive-online-harassers/ (Last accessed 6 September 2020) and David M Douglas “Doxing: a conceptual analysis” (2016) 18 Ethics and Information Technology 199. https://www.academia.edu/26649021/Doxing_A_Conceptual_Analysis (Last accessed 6 September 2020)
 Law Commission “Suppressing Names and Evidence” (NZLC Rl09, 2009).
  NZCA 387 para 
 Examples may be seen in the banning of Don Brash from speaking at Massey University in 2018 (https://www.stuff.co.nz/national/106068816/massey-university-bans-don-brash-from-speaking (Last accessed 6 September 2020) and the actions of the Auckland City Council and others in de-platforming Lauren Southern and Stefan Molyneux in 2018 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12100627 (last accessed 6 September 2020) Another example of the call-out or cancel culture may be seen in the criticism of convicted sex offender Rene Naufahu in his steps to produce and perform in a stage play (https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12362213 (Last accessed 6 September 2020)
 See Lauren Goldman ‘Trending Now: The Use of Social Media Websites in Public Shaming Punishments (2015) 52 American Criminal Law Review 415 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2593673) ; see also Emily Laidlaw “Online Shaming and the Right to Privacy” (2017) Laws https://www.mdpi.com/2075-471X/6/1/3/pdf (Last accessed 6 September 2020) For a full overview of online shaming see Jon Ronson So You’Ve Been Publicly Shamed (Picador, London, 2015)
  NZCA 387 para .
  NZCA 387 para 
 This somewhat naïve assumption that those engaged in trolling or in Internet shaming will adhere to non-publication orders cannot be sustained. An internet influencer is facing prosecution for allegedly breaching the very non-publication order the subject of this litigation. See https://www.stuff.co.nz/business/122339042/pebbles-hooper-in-court-after-social-media-posts-about-simone-anderson (Last accessed 6 September 2020)
  NZCA 387 Para 
  NZCA 387 Para 
 This was recognized by the Law Commission in its report “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age” (NZ Law Commission, Wellington Report 128 22 March 2013 available at https://www.lawcom.govt.nz/our-projects/regulatory-gaps-and-new-media?id=912 (Last accessed 7 September 2020)
 This section draws largely upon my discussion of Social Media in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) Chapter 9. I have taken the opportunity to update and modify it for this article.
 A. M., Kaplan, & M. Haenlein, “Users of the world, unite! The challenges and opportunities of social media.” (2010) 53 Business Horizons, 59 http://www.sciencedirect.com/science/article/pii/S0007681309001232 (last accessed 8 September 2020).
 A. Russo, J Watkins,, L. Kelly, & S Chan,. “Participatory communication with social media.” (2008). 51 Curator: The Museum Journal 21.
 Kaplan & Haenlein above n. 40 p. 61.
 B. K. Lewis, “Social media and strategic communication: Attitudes and perceptions among college students.”
(2010). 4 Public Relations Journal, 1 at p. 1.
 P. N Howard & M. R Parks. “Social media and political change: Capacity, constraint, and consequence”.
(2012). 62 Journal of Communication 359 at p. 362.
 https://www.lexico.com/definition/social_networking (Last accessed 8 September 2020)
 P. N Howard & M. R Parks above n. 44.
 Caleb T Carr and Rebecca A. Hayes “Social Media: Defining, Developing, and Divining” (2015) 23 Atlantic Jnl of Communication 46 at p. 47.
 For example see E. Agichtein, C. Castillo, D. Donato, A. Gionis & G Mishne, ( February 11,2008). “Finding high-quality content in social media.” Paper presented at the The International Conference on Web Search and Web Data Mining, Palo Alto, CA. http://www.mathcs.emory.edu/~eugene/papers/wsdm2008quality.pdf (last accessed 8 September 2020); Tim. O’Reilly. “What is Web 2.0: Design patterns and business models for the next generation of software.” (2005) O’Reilly Media. http://www.oreilly.com/pub/a/web2/archive/what-is-web-20.html (last accessed 8 September 2020)
 d. m. boyd & N. B. Ellison, “Social network sites: Definition, history, and scholarship” (2007). 13 Journal of Computer-Mediated Communication 210 at p. 211.
 Carr & Hayes above n.48 p. 50.
 Ibid. p.52.
 Ibid. p. 53.
 Rosa Lemel “A Framework for Developing a Taxonomy of Social Media” (2014) 6 Business Studies Jnl 67.
 http://www.fredcavazza.net/2008/06/09/social-media-landscape/ (Last accessed 8 September 2020).
 Rich McCormick & Thomas Ricker “Google + officially splits into Photos and Streams” The Verge 2 March 2015 http://www.theverge.com/2015/3/2/8131639/google-officially-splits-into-photos-and-streams (last accessed 8 September 2020).
 Casey Newton “Google + profile links have started disappearing from Google” The Verge 1 June 2015 http://www.theverge.com/2015/6/1/8700339/google-plus-profile-links-gone (last accessed 8 December 2020).
 Cavazza’s 2012 categories of activity were described primarily as conversations and interactions and were further defined as Buying, Localisation, Publishing, Sharing, Playing and Networking. Central to all these activities were the three social media platforms of Facebook, Twitter and Google + See for the diagram http://www.fredcavazza.net/2012/02/22/social-media-landscape-2012/ (last accessed 8 September 2020).
 https://fredcavazza.net/2019/05/12/panorama-des-medias-sociaux-2019/ (Last accessed 8 September 2020).
 Alison Mau “Final act of Labour youth camp case could be a gamechanger” Sunday Star Times 6 September 2020 https://www.stuff.co.nz/national/crime/300099878/final-act-of-labour-youth-camp-case-could-be-a-gamechanger (Last accessed 7 September 2020)
 The term was used by Simon Power in 2010 who asked the Law Commission to look at media regulation describing it as the wild west. (Andrea Vance “Government to review ‘wild west’ internet” Stuff 14 October 2010 http://www.stuff.co.nz/national/4233501/Government-to-review-wild-west-internet . (Last accessed 7 September 2020). The irony behind this comment was that the blogger Cameron Slater had a few days before been convicted of breaching suppression orders in a case that demonstrated that the rule of law DID extend to the Internet.
 Danielle K Citron “Civil Rights in Our Information Age” in S Levmore and M C Nussbaum (eds) The Offensive Internet: Speech, Privacy and Reputation (Harvard University Press, Cambridge, 2010).
 X v R  NZCA 397 para .
 Michael L. Kent “Introduction – Social Media Circa 2035: Directions in Social Media Theory” (2015) 23 Atlantic Jnl of Communication 1 p. 2 http://www.tandfonline.com/doi/abs/10.1080/15456870.2015.972407 (last accessed 8 September 2020).
 Petra Theunissen “The Quantum Entanglement of Dialogue and Persuasion in Social Media: Introducing the Per-Di Principle” (2015) 23 Atlantic Jnl of Communication p. 5 http://www.tandfonline.com/doi/full/10.1080/15456870.2015.972405 (last accessed 8 September 2020).
 See s. 210(2) Criminal Procedure Act 2011
 See for example Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González European Court of Justice 13 May 2014 C-131/12. http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=152065 (last accessed 28 August 2020) and more recently Google LLC v Commission Nationale de l’informatique et des Libertes (CNIL) Case C-507/17, (Eur. Ct. Justice January 10, 2019).
 David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) p. 23 and following.
 X v R  NZCA 387 para .