Forgetfulness and the Clean Slate – Collisions in the Digital Paradigm IX

Introduction

The law of obligations, in a most general sense, is the subject of civil disputes that arise between individuals or corporate bodies. Obligations may arise from the common law or from statute. But apart from providing a forum for the resolution of these disputes – the Courts – the State plays little or no active role.

The situation is different with offences created by statute for which a penalty is provided. In a most general sense these are described as crimes but from a purely literalist perspective, crimes are only those offences created by the Crimes Act 1961. Of course offences like dealing in or importing Class A drugs, offences against the Misuse of Drugs Act carry with them penalties as severe as those prescribed under the Crimes Act.

In essence what underlies an offence is that the behaviour prohibited falls below the bottom line of acceptable behaviour in a society, and which society deems should be the subject of prosecution by the State on behalf of the community. The penalties imposed by law following upon a conviction reflect the odium with which society views the behaviour.

The gravity of the behaviour is often measured by the nature of the penalty imposed and the way in which offences may be classified. Crimes as set out in the Crimes Act 1961 involve offences where the penalty of 1 year’s imprisonment or more may be imposed. Offences under the Summary Offence Act 1981, dealing with matters such as disorderly behaviour or low level assault or threatening behaviour carry penalties of a fine or a short term of imprisonment – up to 3 months for most although 6 months imprisonment is the maximum for Summary Offences assault.

The Land Transport Act also has offences involving the use of motor vehicles which carry penalties of fines, imprisonment and disqualification from driving. There is a graduated scale of penalties of potential imprisonment and disqualification for repeat drink drive or driving while disqualified offenders.

And it must be noted that with certain very limited exceptions a penalty cannot be imposed without a conviction being entered. The entry of a conviction of itself carries a certain stigma. Overseas travellers will be familiar with immigration documents that ask whether or not the traveller has been convicted of an offence and different countries have different policies about who they will let in who have been convicted a certain offences. Convictions for offences may also affect an individual’s job prospects, or how and to what extent he or she may engage in community activities. The presence of a conviction carries its own stigma.

By the same token a conviction sends a message about an individual. A person who has repeat offences for dishonesty demonstrates a tendency towards dishonest behaviour. Would that particular fox be placed in the henhouse of a banking job or a position where an accounting for money was required. On the other hand, youthful indiscretions – disorderly behaviour by a group of students celebrating their graduation – may be the only blot upon an otherwise clean copybook. Should a person who leads an exemplary life for years after some stupid low level misbehaviour that amounts to an offence, carry that mariner’s albatross for the rest of his or her life.

The Clean Slate Act

The Criminal Records (Clean Slate) Act 2004 sets up a clean slate scheme. Under the clean slate scheme an eligible individual

(a) is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record; and

(b) has the right to have his or her criminal record concealed by government departments and law enforcement agencies that hold or have access to his or her criminal record.

The Act is not that easy to understand but eligibility is the key component. Eligibility is acquired under section 7 and requires a number of boxes to be ticked. Shortly summarised these are

  • There must be the completion of a rehabilitation period and
  • No custodial sentence has ever been imposed; and
  • No orders have been made under legislation dealing with mental competence issues and criminal liability and
  • The person has not been convicted of a specified offence set out in section 4 of the Clean Slate Act; and
  • Where a fine or reparation has been imposed, those amounts have been paid; and
  • In the case of an order for compensation, that amount has been paid or remitted and
  • No order for indefinite disqualification has been imposed.

Perhaps the most critical aspect of the above criteria if the definition of a rehabilitation period. In relation to an individual, that means any period of not less than 7 consecutive years after the date on which the individual was last sentenced, or a specified order was last made, in which the individual has not been convicted of an offence. Thus a rehabilitation period is 7 consecutive years without reoffending.

Interestingly enough the Act is silent on what offences qualify for clean slate protection. It is NOT silent on the offences which do not qualify and those specified offences involve a range of sexual and indecency offences. Thus it is possible that a person who is convicted of burglary and who fulfils all the criteria list above could claim clean slate protection. What is difficult for many is where a custodial offence has been imposed, not necessarily for the particular offence but for any offence, or where an order for indefinite disqualification has been imposed. To qualify for clean slate protection a person must fulfil each of the seven criteria.

The Effect of the Clean Slate

Section 14 provides in detail the effect of the Cleans Slate.

  • If an individual is an eligible individual, he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record.
  • An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.
  • Nothing in subsection 1 or 2 above—
  • prevents an eligible individual stating that he or she has a criminal record, disclosing his or her criminal record, or consenting to the disclosure of his or her criminal record; or
  • authorises an individual to answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record if the question is asked—
  • under the jurisdiction of the law of a foreign country while an eligible individual is outside New Zealand; or
  • while he or she is in New Zealand but relates to a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).

It will be noted particularly that the Clean Slate provisions really only are effective in New Zealand. A person cannot invoke the Clean Slate provisions if they are entering a foreign country where a question is asked about previous convictions. In those circumstances, convictions must be disclosed.

It should also be noted that section 19 sets out specific exceptions to the applicability of the Clean Slate regime.

Publication and the Clean Slate

The Clean Slate Act – sections 9 and 10 – allows individuals to apply to the Court for exemption from the rehabilitation period or that a conviction be disregarded in certain circumstances. Section 13 of the Act prima facie prohibits publication of the name of an applicant for such exemptions or any particulars leading to the identification of the applicant. However these details may be published in certain limited circumstances.

If a person has access to criminal records and discloses the criminal record of an eligible person a finable offence is committed.

If the person requires or requests that an individual—

  • disregard the effect of the clean slate scheme when answering a question about his or her criminal record; or
  • disregard the effect of the clean slate scheme and disclose, or give consent to the disclosure of, his or her criminal record

then a finable offence is committed.

The Right to be Forgotten

When the applicability of the European concept of the right to be forgotten is discussed in the context of New Zealand, the Clean Slate Act is advanced as an example. However, the Clean Slate Act in some ways goes further than the Google Spain decision. Remember, Google Spain was about deindexing Mr Costeja-Gonzales name from associations with a public notice that appeared in the La Vanguardia newspaper. It did not eliminate the article – the primary information – itself.

The Clean Slate Act goes well beyond that. It effectively gives a right to be forgotten in the sense that the eligible individual does not have to disclose a previous conviction if it falls within the Act, can effectively deny such conviction exists although the power of disclosure remains with the individual. This means that the Act allows the eligible individual to redefine him or herself in respect of facts of earlier criminal conviction.

As the law stands at the moment, the power lies with the individual to disclose or not disclose. In that respect the eligible individual controls the right to be forgotten. However, the disclosure of the criminal conviction of an eligible individual amounts to an offence only if it is made by a person who has access to criminal records and a criminal record is defined as a record kept by or on behalf of the Crown. Information acquired by newspapers in the course of Court reporters, bloggers or website hosts who publish cases, naming an individual who has been convicted, and who subsequently becomes eligible, commit no offence.

Publicists in that case commit no offence by publishing the name of a person appearing before the Court contemporaneously with the event. The problem has now become (and was on the horizon in 2004 when the legislation was enacted) associated with the preservative power of digital technologies and the concept of the document or information that does not die. A Google search may reveal the name of an eligible person and hyperlink to the blog, website or online newspaper. So should there be deindexing of the names of eligible persons where the linked to sites contain information about previous convictions? Or should the source information be taken down?

There are a number of thorny issues surrounding this including freedom of the press, the neutrality of Internet based searches along with the underlying integrity of the Clean Slate Act. And this problem has come to the attention of the Privacy Commissioner.

Privacy Concerns

The concerns of the Privacy Commission are expressed in the following way:

A number of newspapers in New Zealand have a practice of publishing the names and conviction details of everyone prosecuted in the local court. This includes those convictions covered by the Clean Slate Act.

This effectively nullifies the intended effect of the Act for these people, as most newspapers are now online as well as in print. A quick Google search for someone’s name can unearth details that were suppressed by the Clean Slate Act.

Further, the newspapers that publish the details of petty crime tend to be in smaller towns, as it’s impractical for larger metropolitan newspapers to print the details of every conviction. So the Clean Slate Act effectively increases the consequences of relatively minor offences for people who live in small towns. This does not seem fair, particularly in the context of the economic opportunity gap between urban and rural New Zealand.

This issue is one of the loose collection of issues covered by the still-developing idea of the “right to be forgotten,” which we wrote about in 2014.  That is, the idea that some public information might become private after a certain amount of time has passed.

The Clean Slate Act was one of New Zealand’s first “right to be forgotten” laws. Perhaps it is time to look at what responsibility media have to let people move on. If a quick Google search is all it takes to find someone’s past transgressions, then in practical terms, their slate isn’t very clean at all.

 Concluding Thoughts

This post is not a critique about the policies behind the Clean Slate Act nor is it part of a newly heralded debate about a review of that legislation. Rather my purpose is to raise a few issues that need to be considered.

The first is this. Removing information from the Internet is at best an inadequate solution. The information may be located in a number of places and the disseminatory qualities of digital technologies mean that the information may be removed from an online news site, but it may still be available on social media platforms, possibly YouTube or on any one of a number of blog sites. So the effectiveness of the proposal is an issue that must be considered.

The second issue is whether or not the obscurity that is sought by removal of online content will achieve its objective. Newspaper archives and hard copy retains the information, albeit in a form more difficult to access than that placed on the Internet.

The third issue is one to which I have already referred. Freedom of the press and the associated right of the public to know the business of the Courts as an arm of Government per medium the newspaper as proxy is a jealously guarded right and one which will not be easily yielded by the news media. Newspapers provide an important record of community activities from an historical and social point of view in addition to their role as public surrogates. The information that they contain is of continuing interest. And it must be remembered that the Clean Slate Act vests the right of invocation in the hands of the eligible individual. It does not prohibit enquiry by a third party into a person’s past of sources other than the eligible person.

And that gives rise to a fourth issue and it is that a freedom of expression – the right guaranteed under the New Zealand Bill of Rights Act to impart and receive information. Care  must be exercised if interference with that right is contemplated.

So what is a person to do – someone who is eligible to invoke Clean Slate but whose previous conviction is on a newspaper website and who, as a consequence, is finding it difficult to get a job. If the circumstances are such that the person is caused harm – serious emotional distress – as a result of continued frustration in finding a job – the provisions of the Harmful Digital Communications Act could be available and, if all the criteria are satisfied may beinvoked. Truth is not a defence to a takedown order under that Act and it may well be that the initial intercession by the Approved Agency will arrive at a satisfactory result.

Whatever follows from this interesting but controversial proposal will be an interesting debate and one which once again will match existing social policy with the realities of the Digital Paradigm