“Hate Speech” Proposals – A Consideration

Abstract

This paper examines the Report of the Royal Commission of Inquiry into the 15 March 2019 terrorist attack in Christchurch, New Zealand and focusses on proposals to reconsider provisions of the existing law about “hate speech”. The paper considers the existing law contained within the Human Rights Act 1993 and then goes on the consider the critique of the existing law undertaken by the Commission. The paper also considers the Commissions proposals for a “hate speech” offence to be incorporated in the Crimes Act – a proposal which, in the opinion of this commentator, is too wide and does unnecessary violence to the freedom of expression. An alternative and more limited offence is proposed which fulfils the objectives stated by the Commission yet maintains an environment for the robust level of discourse so vital in a free and democratic society.

Introduction

The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 is lengthy. It is divided into a number of parts. Part 9 deals with issues surrounding social cohesion and embracing diversity.

Social cohesion is seen as a way of preventing or countering extremism. Cohesive and resilient communities are better placed to resist and counter the risk of radicalisation and mobilisation to violent extremism and terrorism. Tolerant and, ideally, inclusive, societies are more able to address and prevent the polarisation and disenfranchisement that can contribute to a rise in extremism.[1]

Hate speech and hate crimes are seen as challenges to a socially cohesive and tolerant society and the Commission devotes Chapter 4 of Part 9 to the issue. The Commission points out that a hate crime is an offence that is motivated by the offender’s hostility to the victim as a member of a group that has a common characteristic, such as race, religion or sexual orientation. An example is an assault against a person wearing religious attire that was motivated by the offender’s hostility towards that particular religion.[2]

It acknowledges that hate speech is a less precise term.[3] The Commission uses the expression hate speech to mean speech that expresses hostility towards, or contempt for, people who share a characteristic[4]. Legislation that creates hate speech liability (which can be civil or criminal) specifies what types of speech are captured and characteristics that are protected[5].

The Commission acknowledges that addressing and criminalising hate speech creates a significant tension with the freedom of expression and care is required in developing the legislative approach. There are a number of purposes and other tensions that the creation of a hate speech offence poses including:

  • a) the promotion of social cohesion;
  • b) the desirability of limiting speech that encourages hostility that may result in harms such as discrimination and abuse, fears of physical harm and actual violence;
  • c) the importance of freedom of expression; and
  • d) ensuring that the law can practically be enforced.[6]

The Commission observes[7] that there are five existing statutes that impose liability and provide remedies for hate speech. They are:

  • a) the Human Rights Act 1993;
  • b) the Summary Offences Act 1981;
  • c) the Harmful Digital Communications Act 2015;
  • d) the Broadcasting Act 1984; and
  • e) the Films, Videos, and Publications Classification Act 1993.

Although the Commission notes a link between hate speech and hate crime it correctly considers hate crime and hate speech as different legal concepts. However, they are linked by underlying commonalities and, in terms of their consequences, sit on the same spectrum of behaviours.[8] In this paper, however, I shall confine myself to a consideration of the Commission’s approach to hate speech.

In its recommendations the Commission suggests that the offence created by section 131 of the Human Rights Act 1993 be modified and incorporated into the Crimes Act. In this paper I shall consider this proposal, the rationale advanced for it and the problems that the Commission’s proposal may create if enacted. In brief I suggest that the proposal by the Commission is too wide and unnecessarily interferes with the freedom of expression. I conclude by advancing an alternative that will meet the objectives stated by the Commission and do as little violence to the freedom of expression as possible.

Human Rights Act Background

A substantial part of the discussion of hate speech centres upon two provisions in the Human Rights Act 1993[9]. Section 61 addresses racial disharmony and sections 131 which creates a criminal offence for speech that is used with “intent to excite” hostility (or other consequences). A prosecution for this offence can be brought only with the consent of the Attorney-General.

Section 61 provides

61 Racial disharmony

(1) It shall be unlawful for any person—

(a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive,or insulting; or

(c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.[10]

Section 61 is limited in its application  – “on the ground of the colour, race, or ethnic or national origins of that group of persons.”[11]

The question of race or ethnic or national origins was considered in the case of King-Ansell v Police[12] which, although it dealt with the equivalent of section 131 under the then Race Relations Act, is useful in its discussion of the wording of section 61 – colour, race, or ethnic or national origins of that group of persons which is replicated in section 131 . The issue was whether Jews fell within the scope of the Act or whether, as claimed by the appellant they were a religious group.

The Court held that religious discrimination was outside the scope of the Race Relations Act but that ethnic was to be given a meaning within this scope. The Court noted that the answer needed to ensure that the concept was interpreted in a broad and non-technical sense while also preventing a meaning which would take the operation of the act outside a broad interpretation of racial discrimination.

While it was commonly accepted usage in New Zealand that ‘ethnic’ is related to race and is also accepted as meaning common racial, cultural, religious or linguistic characteristics that would, according to Richmond P, render the Act too broad. He concluded that ‘ethnic’ should the taken to mean ‘pertaining to race or nation’, a proposition for which he finds support in Ealing LBC v. Race Relations Board.[13]

Considering expert testimony by anthropologist and sociologist Dr MacPherson, Richmond P concluded that while Dr MacPherson’s definition of ‘ethnic group’ is too wide for the Act, it did inform an appropriate definition and conclusion in relation to Jews. He concluded that the Race Relations Act covered groups of persons who have common ethnic origins, which include groups “marked off from the generality of our society by shared beliefs, customs and attitudes”.

“The ultimate genetic ancestry of any New Zealander is not susceptible to legal proof. Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.”[14]

Richmond P noted that ethnic origin is therefore established by reference to shared customs, beliefs, traditions and characteristics derived from a common or presumed common past. A combination which gives them a ‘historically determined social identity based … on their belief as to their historical antecedents.’[15]

He concluded that ‘Jewishness’ is much more than just religion and therefore does fall into the category of an ethnic group.

However it is doubtful that this reasoning could extend to adherents of Islam.

The quality of the communication and whether it was likely to excite hostility was considered in the case of Wall v Fairfax.[16]In that case there was a complaint about two cartoons published around the food in school programme, that the complainant alleged were likely to promote racial disharmony. The case went on appeal from a decision of the Human Rights Review Tribunal.

In dismissing the appeal, the High Court held that the s 61 publishing prohibition applied only to expression which inspired enmity, extreme ill-will or was likely to result in a group being despised. An expression that was simply offensive or insulting was not likely to incite disharmony.

Section 61 focused on the nature of the inter-reaction between groups of citizens, not the response of the target group. It set a two-stage test: was the publication “insulting” and, if it was, was it “likely to excite hostility against” Maori and Pasifika or “likely to bring [Maori and Pasifika] into contempt”. The ordinary meaning of the words used in s 61 reinforced the conclusion that the behaviour targeted was at the “serious end of the continuum of meaning”.

The Court then went on to consider whether or not the publication fell within the ambit of the Act. Although offensive, the two publications were not likely to excite hostility or contempt at the level of abhorrence, delegitimisation and rejection that could realistically threaten racial disharmony in New Zealand. The key elements in assessing the effect of the publication were context and circumstance.

The relevant publications were editorial cartoons. Cartoons formed part of a rich tradition by which cartoonists expressed views which may differ markedly from those expressed more formally elsewhere in a newspaper. Cartoons had a “special licence to make exaggerated and comic criticisms of public figures and policies”. There were Press Council decisions upholding a cartoonist’s right to use hyperbole in the expression of strong, unpopular viewpoints even if they caused offence, and that was a view which resonated through many liberal democracies.

Cartoons could operate like a mirror reflecting back at the reader some of the more intolerant attitudes held in parts of the community. Care was needed before identifying a cartoon as unlawful. Canadian authorities had observed that in the normal course of events satire would not likely constitute hate speech.

The cartoons had satirical elements but their audience were not likely to be excited to hostility or brought to a position of contempt by the depictions when considered in that context. The cartoons were two contributions only, to a wide-ranging public debate about an important issue of public policy.

The effect of the publication was to enliven debate about the effectiveness of a food in schools programme, as well as wider issues about the realities of life in deprived communities and the depiction of Māori and Pasifika in the media.

The negative cartoon depictions of Māori and Pasifika were not likely to excite even persuadable people to hostility or feelings of contempt towards them. The “space” within which issues could be raised and debated had to be kept as broad as possible. Section 61 recognised that it was not in the interests of society to confine publications to those which did not shock, offend or disturb.[17]

The language in section 61 should be applied “only to relatively egregious examples of expression which inspire enmity, extreme ill-will or are likely to result in the group being despised”.[18]

The Wall case is useful because it analyses the difference between offensiveness, shocking or disturbing speech which it considered was not captured by the Act and the level of seriousness of the speech to bring it within the scope of the legislation

I shall now turn to consider section 131.

Section 131 creates an offence of inciting racial disharmony. The section reads as follows:

131 Inciting racial disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,—

(a) publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or

(b) uses in any public place (as defined in section 2(1) of the Summary Offences Act 1981), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting,—

being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

Elements

In a prosecution under section 131, the prosecution is currently required to prove:

  1. a publication that is “threatening, abusive, or insulting”;

2. an intent to “excite hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic; and

3. that the publication was “likely to excite hostility or ill-will against, or bring into contempt or ridicule” people sharing that protected characteristic.

The drafting of the section reflects the style of the time and appears rather complex.

The first element addresses the nature of the publication (s.131(1)(a) or the words used in a public place (s. 131(1)(b). The quality of the language of concern must be threatening, abusive or insulting. These words, in and of themselves, would not fall within the definition of hate speech. Threatening language involving possible physical consequences is already addressed in the Crimes Act or the Summary Offences Act. Insulting or abusive language unassociated with physical threat  may be offensive or disturbing but hardly warrant the intervention of the criminal law.

It is when the second element is considered that the nature of the speech is further refined. The use of the threatening, abusive words must be accompanied by a specific intent – that of exciting hostility or ill-will against, or bring into contempt or ridicule” people sharing a protected characteristic

Finally, there is the element of likelihood. Were the words used, accompanied by the specific intent likely to do what the speaker or publisher intended. This involves an objective evaluation of the words including the context within which the publication or use of the words under s.131(1)(b) took place.

The latter scenario is quite straight forward and involves a consideration of the context of the meeting or public forum at which the words were used. The situation under s. 131(1)(a) is slightly more problematic in that elements (a) and (b) may have been completed but in circumstances when the effect of the words on a third party may not have taken place. Thus the contextual element of likelihood of excitation of hostility may not be complete. An example may be given of the publication of words with a specific intent in a publication that may be distributed but not read or on a website that is not accessed. Rather akin to the unobserved tree that falls in a forest[19], such a communication is passive in nature. Only when there is an identifiable recipient of the communication is the circle commenced in section 131 closed.

The Commission concluded that the third element was not necessary. In a situation where the first two elements can be made out (a threatening, abusive or insulting publication and an intent to “excite hostility”), we see the third element as having little or no bearing on whether the conduct is sufficiently culpable to justify in a charge. It is thus unnecessary. On this analysis words published with a specific intent would be sufficient to create the offence even although there was either no audience nor readership. Thus the utterance plus intent would be sufficient to create the offence. This would significantly widen the scope of the offence.

Looking at it another way, the Royal Commission in collapsing the nature of the publication with the likelihood of what it might do overlooks the fact that publications may be threatening, abusive or insulting but do not go so far as to have the potential or the likelihood to excite hostility etc.

Even if I have the intention of exciting hostility or ill-will against people of a particular characteristic my publication may well be unlikely to achieve that goal or fulfil what I intended.

Thus in my view it is necessary that the element of objective assessment of the potential for the exciting of hostility or ill will be present if only to ensure that the intention is capable of fulfilment. Otherwise one may be convicted of merely publishing threatening or abusive material with an associated intent that may not be capable of being achieved.

Excite or “Stir Up”

The Commission commented on two other aspects of the section. One was the use of the word “excite”. It observed that the verb “excite” is used in a slightly unusual sense and suggests causation. This means that an “intent to excite” cannot be established without showing an intention to either cause “hostility or ill-will” that did not previously exist, or enhance or increase pre-existing “hostility or ill-will”. It logically follows that preaching hatred to the already converted would not breach section 131.

The Commission considered that the verb “excite” should be replaced with the words “stir up” which is used in corresponding legislation in the United Kingdom. The “preaching hatred to the converted” issue could be resolved by adding the verbs “maintain” and “normalise”. Neither of these proposals are controversial although some care would have to be taken. A person who was restating an existing belief about race, national or ethnic origins to a group of like-minded people could be prosecuted for merely stating that belief. Does such a restatement actually stir up hostility or would the words have to call for hostile action?

Much would also depend upon whether the maintaining or normalizing required a specific intention. In addition the potential for infiltration by investigators or other aspects of the surveillance state to prosecute the “preaching to the converted” could well arise.

The second aspect dealt with an extension of the protected characteristics currently in the Human Rights Act.

Protected Characteristics

The Commission suggests that religious belief should be a protected characteristic. It correctly notes:

There are distinct freedom of expression issues if sharing a particular religious belief system is treated as a protected characteristic. There is a strong tradition in New Zealand (as in many other countries) that religious belief systems are open to debate and that this can be vigorous. Strongly expressed challenges to a religious belief system may also amount to criticism of those who adhere to it. It is not easy to determine where to draw the line.[20]

It should be noted that even within the same belief system or religion there are divisions and subsets of belief. The Christian religion is made up of a number of denominations and even within denominations there may be differences and dispute.[21] Islam itself has a number of denominations the best known of which are the Shi’ia and Sunni.[22]

The Commission advanced the following reasons for the inclusion of religious belief as a protected characteristic.

a) under section 9(1)(h) of the Sentencing Act, “religion” is a protected characteristic;

b) in other jurisdictions, similar legislative provisions have been amended to include religion as a protected characteristic;

c) it would bring New Zealand into compliance with article 20(2) of the International Covenant on Civil and Political Rights

d) it is not logical that affiliation with Judaism and Sikhism are protected characteristics but affiliation with other religions such as Islam or Christianity are not;

e) the very clear overlap between Islamophobia and racism (in that many victims of Islamophobic harassment are people of colour); and

f) most significantly, the current realities of Islamophobia and the association between hate speech and terrorism.

In the UK legislation the vigorous debate that accompanies religious belief is reflected in section 29J of the Public Order Act 1986 (United Kingdom), which was enacted when “stirring up” religious hatred was introduced as an offence in England and Wales. This section provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

Could that be a line that could be drawn. The Commission thought not in that it would make prosecutions for stirring up religious hatred practically impossible. The Commission hopefully observed:

We consider that concerns about freedom of expression are met with a high threshold for liability, requiring the prosecution to establish an intention to stir up, maintain or normalise hatred towards members of the protected group and specifically criminalising explicit and implicit calls for violence against such a group.[23]

There are two issues that arise from this. The English exception recognizes the nature of disputation in matters of faith. As noted, vigorous disputation has been a characteristic of all religions and the disputes can become very heated. The English exception allows for expressions of antipathy towards other faiths. Within the Christian and Islam faiths the word infidel is used to describe an unbeliever. Historically that designation meant that the unbeliever may be killed without fear of consequence for murder in either the secular or spiritual context.

The second issue is more fundamental. The Commission recognizes this in referring to a high liability threshold. In my view this threshold – if applied – would have to be clearly defined. Any interference with freedom of expression must clearly set the boundaries of what is impermissible. Uncertainty will have a chilling effect on free expression simply because people will not be sure that they may express themselves without fear of prosecution.

The Courts have been robust in protecting freedom of expression – see Morse v Police[24]  – but a “wait and see what the Courts say” is hardly satisfactory as an approach to discovering the limitations on the freedom of expression, especially in such a sensitive and delicate area. The Commission was focussing upon the circumstances and context of the Christchurch massacre, but the law will go well beyond that immediate context and the reaction to it. Care must be taken not to allow the justifiable outrage against the action of a lone wolf terrorist to colour and unnecessarily limit the freedoms we presently enjoy.

Developing the New Offence

The Commission suggested that a “hate speech” offence should be removed from the Human Rights Act and elevated to a crime by inclusion in the Crimes Act. The location of the offence really makes little difference. What is significant is what the offence actually is and what the penalties may be. It could be argued that shifting the offence to the Crimes Act is largely symbolic.

The suggested offence, irrespective of placement, that is proposed reads as follows

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise hatred against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

  • says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for violence against or is otherwise, threatening, abusive, or insulting to such group of persons.

The element relating to intention appearing in section 131 is maintained. The protected characteristic of religion is added. The publication element is maintained, along with an ability to assess the nature of the content.

It is interesting that it seemed necessary to include a territorial element in the offence. The target of the speech must be persons in New Zealand. This means that one would not commit an offence if they were in New Zealand and published material that included all of the elements of the offence save that it was directed to people in another country. I can understand the “social cohesion” principle that underlies the offence and that this might thus restrict it to New Zealand, but given the association between hate speech and terrorism, and given that terrorism is a phenomenon with global implications it is surprising that the Commission has seen fit to limit the application of the offence.

However subclause (a) is vague in that it refers to “hatred” and perhaps should be linked to the consequence of the speech in subclause (b). The requirement that the speech calls for violence against those with protected characteristics falls within the ambit of what I have earlier described as “dangerous speech”[25].

What is of concern is that even although the speech may not call for violence the scope and effect of the speech are significantly expanded by the additional alternative element of it being threatening, abusive or insulting. In my view and for reasons that I have expressed earlier in this paper, this will have a chilling effect upon the freedom of expression. The tenor of abusive or insulting could well result in a complaint by someone who was merely offended by the speech.

An Alternative Proposal

My suggestion is that the section could be recast to meet some of these objections and yet fulfil what the Commission was proposing. My proposal is that the section could read as follows:

Inciting racial or religious disharmony

Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding three years who:

(a) with intent to stir up, maintain or normalise violence or hostility against any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins or religion of that group of persons;

(b) says or otherwise publishes or communicates any words or material that explicitly or implicitly calls for or threatens violence or hostile action against or is otherwise, threatening, abusive, or insulting to such group of persons.

The changes suggested achieve the following objectives:

1.       The emotive and difficult to define concept of “hate” is removed and the “dangerousness” of the speech is emphasized

2.       Hostility as a term is used to replace “hate” because hostility is more capable of being resolved into action

3.       The quality of the published material and what it seeks to achieve is related to the concepts of violence and hostility in (a) but removes the qualities of threat, abuse or insult. The use of those terms in the proposed legislation would water down robust speech to virtually nothing and would go far beyond what is generally understood by “hate” speech. Language may be offensive, hurtful or insulting without necessarily setting out to stir up hostility or hostile action and robust debate must be encouraged as well as a need for audiences to be robust and resilient themselves.

The Religious Exception

I refer to section 29J of the Public Order Act 1986 (United Kingdom), which provides:

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

I do not share the Commission’s view that such an exception would make the offence of inciting racial or religious disharmony – especially the latter – unworkable.

The exception goes to the quality of the discourse and recognises that religious debate can become passionate and heated. The exception does not go so far as to allow for the advocacy of violence or hostile action which are the targets of the alternative proposal that I have put forward. It could be argued that because my proposal targets consequences rather than content, an exception such as that appearing in section 28J is not required, in that section 29J merely states examples of freedom of expression which are likely to occur and have occurred over the centuries in religious debate. However, the inclusion of such an exception would provide protection for adherents of all religious faiths who wish to engage in the robust debate that often surrounds matters of belief.

Conclusion

It may well be said that in its proposals about “hate speech” the Commission has perhaps gone a little too far in the scope of the offence that it proposes. The suggested offence I have put forward sharpens the focus of the offence, removes the emotive concept of hate and maintains the ability for robust discussion and debate – vital aspects of the freedom of expression in a free and democratic society.

Ideally I would like to see the abandonment of the term “hate speech”. It has a sloganeering aspect to it and, as is so often the case with slogans, provides a form of shorthand for a much deeper and nuanced set of issues. It is for this reason that I have examined the Commission’s proposals in the depth that I have. It provides little profit from an intellectual or a policy perspective to debate a slogan like hate speech and its criminalisation without understanding what it really means from a legal point of view. This paper, hopefully, provides some clarification.


[1] The Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch mosques on 15 March 2019 (Wellington, 2020) p. 655 hereafter referred to as RC Report. https://christchurchattack.royalcommission.nz/the-report/ (Last accessed 26 December 2020)

[2] Ibid. p. 700

[3] I entirely agree and have written on the topic. See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

[4] Expressions of contempt for members of a group may be insulting, offensive or discriminatory, but speaking contemptuously of a group is a far cry from encouraging hostility towards them.

[5] RC Report p.700

[6] Ibid p. 701

[7] Ibid p. 701

[8] Ibid. p. 701

[9] And its predecessor the Race Relations Act

[10] The emphasis is mine.

[11] Section 131 is similarly limited

[12] [1979] 2 NZLR 531

[13] [1972] AC 342.

[14] King-Ansell v Police above at p. 542.

[15] Ibid p. 543.

[16] [2018] 2 NZLR 471

[17] My emphasis. This reasoning could apply to the Charlie Hebdo cartoons of the Prophet or to the highly satirical movie “Monty Python’s Life of Brian”.

[18] Wall v Fairfax above at para [56].

[19] “If a tree falls in a forest and no one is around to hear it, does it make a sound?” is a philosophical thought experiment that raises questions regarding observation and perception.

[20] RC Report p.710 para [49]

[21] For example In 1967, Professor Lloyd Geering’s writings on the resurrection of Jesus and the immortality of the soul, resulted in his being charged by the Presbyterian Church with “doctrinal error” and “disturbing the peace of the church” – which is more or less the same thing as a heresy charge

[22] Sunni-Shia  strife, especially in Iraq and Pakistan has led to violence and bloodshed.

[23] RC Report p. 710 para [51]

[24] [2011] NZSC 45

[25] See “Dangerous Speech – Some Legislative Proposals” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 or https://theitcountreyjustice.wordpress.com/2020/11/29/dangerous-speech-some-legislative-proposals/

Censorship – Public and Private

Introduction

Censorship is the suppression of speech, public communication or other information. Censorship may be imposed by a Government or by private individuals. Censorship imposed by a Government is contentious in that it may be used for political purposes or to restrict the nature of information that the public may receive.

Censorship, by its very nature, creates a tension within a free and democratic society and challenges freedom of expression by imposing minimum standards of socially acceptable speech on the contemporary community. Under s 14 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) everyone has the right to freedom of expression; a right as “wide as human thought and imagination”.[1] Censorship acts as an abrogation of that right.

The censorship regime in New Zealand today is governed by the Films, Videos, and Publications Classification Act 1993 which set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made.  Prior to its enactment there were three separate regimes with their own criteria: a Chief Censor of Films under the Films Act 1983, a Video Recordings Tribunal under the Video Recordings Act 1987 and the Indecent Publications Tribunal under the Indecent Publications Act 1963[2].

A Ministerial Inquiry in 1989 recommended the development of one comprehensive classification system for the material already covered by existing censorship laws and an extension of the scope of the law to include a wider range of media.[3] When the Bill was discussed in Parliament the Minister of Social Welfare emphasised that the focus of the Bill was the likelihood of harm. She considered it represented a major shift in its philosophy on censorship away from moral paternalism and moral indignation alone to the likely impact of material on the community and particularly young persons.[4] The Act was to provide better public access to the classification system. It also strengthened enforcement measures.

In this post I want to discuss two issues surrounding censorship that were highlighted by an article that appeared in the Sunday Star-Times for Sunday 10 January 2021. One of the issues raised by the article involves an example of the nature of censorship of a book – Into the River by Ted Dawes – which of itself created some controversy in 2014 – 2015. The history of the processes to which the book was subject merited a more detailed narrative than appeared in the newspaper article.

The other issue involves another form of possibly more contentious censorship – by private individuals who may restrict access to information within the commercial environment. The strictures imposed by law apply to the first issue and require a rigorous approach in considering whether information is to be censored. They do not apply to the second issue which involves decisions arising from personal choice which may (and often do) have commercial consequences. But the issue is whether those who place information in the public domain have any moral or ethical obligation to adhere the freedom of expression standards.[5]

Into the River

Books, unlike films or DVDs, do not need to be classified before being released, but can be submitted to the classification office by Internal Affairs, Customs, Police or a member of the public. Since the Act came into force over 90 books have been banned. The classification and reclassification of Into the River received unprecedented media attention both in New Zealand[6] and world wide.[7] Ultimately the book was classified four times.

Into the River by Ted Dawes,was a young adults book that won the Margaret Mahy children’s book of the year award in 2013. It was submitted to the Classification Office by the Department of Internal Affairs after complaints about its sexual content by members of the public.

The book is a coming of age story that traverses the fortunes of Te Arepa Santos, a young Māori boy from a fictional village on the East Coast of the North Island, who wins a scholarship to a boys’ boarding school in Auckland. It describes his attempts to adapt to a very different way of life. He experiences the bullying that goes with being the new boy and sees what happens when bullying goes too far. He makes friends, finds enemies, and discovers that his Māori identity is a disadvantage. There are two explicit sex scenes in the book and some reference to homosexuality, as well as words that would be considered as offensive. Along the way drug use and other criminal activity are featured. The book ends with his expulsion.[8]

In September 2013 the book was classified as unrestricted “M” by the Classification Office with a descriptive note “[c]ontains sex scenes, offensive language and drug use”. The Classification Office saw a “depth and wisdom” that took the story beyond the gratuitous. It was intended for a mature audience and there were “many other novels widely available without restriction in New Zealand with similar sexual descriptions of an equivalent nature. [9]

The decision was appealed by Family First New Zealand and in December 2013 it was classified R14 by a majority of the Board of Review. There was a strong dissenting decision by the President who would have classified it as R18.[10]  The majority considered that although this book did describe, depict or otherwise deal with matters such as sex, crime, cruelty and violence it did not do so such that the availability of the publication was likely to be injurious to the public good. Indeed, it considered that the matters were dealt with in a way that was likely to educate and inform young adults about the potentially negative consequences that can follow from involvement in casual sex, underage drinking, drug taking, crime, violence and bullying. Hence, the book served a useful social purpose in raising these issues which were important to young people, and creating an environment which allowed them to think more carefully about the choices they might make and the repercussions of these.[11] Nonetheless there were scenes in the book that were powerful and disturbing and could run a real risk of shocking and distressing young people hence an age restriction was appropriate.[12]

The R14 classification had not been used by the Board before and indeed it was the first time in 22 years that a book in New Zealand had been subject to a restriction. It was also one that was difficult to properly enforce, and it was almost inevitable that the restriction would cause problems particularly for teachers and libraries. A decision of the Review Board can be reconsidered if special circumstances exist and with the consent of the Chief Censor.[13] Auckland Libraries made an application for reconsideration. The Chief Censor granted leave.

On 14 August 2015 the book was reclassified by the Classification Office this time as Unrestricted. In doing so the Office was critical of the failure of the Board, both the majority and the minority, for failing to refer to freedom of expression in their decisions. In the opinion of the Classification Office an age restriction did not sit comfortably with the right to freedom of expression, indeed was inconsistent with it and was not reasonable or demonstrably justified.[14]

Family First sought and received the leave of the Secretary that the Board of Review should again review the classification. Family First also sought and received an interim restriction order making it illegal to sell or display the book; this was the first time one had been imposed on a book and was greeted with an outcry.[15] The order was granted by the President on the basis that the classification was a matter of wide public concern, and that the decision of the Classification Office had radically altered that of the Board of Review. He considered that the correct classification was one that would operate as a semi-precedent and exert a significant influence over the classification of publications that portrayed teenage sex and drug-taking.

Once again the Film and Literature Board of Review considered the matter and released a decision dated 14 October 2015. This time the book was classified Unrestricted by a majority of the Board of Review, given the greater information now available to it, with the President again delivering a dissenting opinion.[16]

It can be seen from this discussion that a careful process has been set in place with checks and balances that ensure that there is no unjustified or unreasonable interference with the freedom of expression. What is unusual about the Into the River story is that unilaterally the President banned the book – effective for a period of six weeks – which would have meant that the possession or distribution of the book might attract criminal consequences. Family First accused the board of succumbing to book industry pressure despite what he alleged was the book’s “highly offensive and gratuitous language, adult themes and graphic sexual content.”[17] However, despite those criticisms, the reasoning of the Board of Review is both available and clear and is an example of the operational process of the New Zealand censorship regime under the Films, Videos and Publications Classification Act 1993.

Private Censorship

The second issue raised by the article is an interesting one. It records that a Wellington bookseller has decided not to sell books by J K Rowling. The reasoning has nothing to do with the books themselves but because of views expressed by Rowling on another issue. It is not the function of this paper to consider the validity or otherwise of either position other than to observe that Rowling’s blog post that aroused such ire seems to be a well written, considered and reasoned exposition of her views.

However, concerns have been expressed that the actions of the bookseller somehow have implications for freedom of expression. These concerns cannot be sustained. The right of freedom of expression – to impart and receive information – involves the interaction between the State and the private individual. In essence the right of freedom of expression should have no interference from the State. That, of course, cannot be an absolute. The New Zealand Bill of Rights Act makes that clear. But if the State is going to interfere with the freedom of expression it can only do so in a manner consistent with the Bill of Rights Act. And that is what the censorship regime described in the first part of this paper, is all about.

The guarantee of freedom of expression does not extend to private organisations.  Assume that I run a bookstore which I own and which provides me with my livelihood. I decide which books I am going to sell and which I am not going to stock. If I want to sell books of a particular genre – say ancient history or science fiction but not fantasy, that is my choice. I am targeting a particular market and providing an opportunity for those who wish to purchase the books that I sell to come in through my doors, part with their cash and take out the book that I want.

I may make the choices about the books that I am going to stock for a number of reasons. I am probably going to sell books that are going to sell well. I am not going to stock books that are objectionable and banned pursuant to the Films Videos and Publications Classification Act. That would involve me in prosecution, the imposition of a substantial fine and possible imprisonment. Apart from the deterrent aspects of the law I would rather be seen as a law abiding trader.

But immediately it can be seen that there are limitations on the books that I may put on my shelves.

So what happens if for other reasons, apart from commercial ones, I choose not to stock certain works. This is the situation facing the Wellington bookseller. She chooses not to stock books written by a person with whose views she disagrees. She is quite entitled to do that. It is her business. She is not obliged to stock works by Rowling or any other author whose works she chooses not to stock.

The Stuff article records her as follows:

“As a small business one of the first things you have to do, I believe, is to figure out what your values are: how you’re going to treat your employees and your customers,” she said.

“I think the line for us is very clear. The line is where people are using their public platforms to promulgate misinformation, bigotry or hate speech.”

She is responding to the exercise of the freedom of expression by Rowling. By the way, I would not characterise the blog post as hate speech – and I have written on that topic elsewhere – and although her actions may have commercial consequences at least she has the courage to explain her reasons for making Rowling’s works unavailable.

However, Paula Morris has expressed some concern in the article. The article states:

“Excluding authors from bookshops is the small-scale version of what’s happening online, where cancel-culture has become a form of censorship”

I think we have to be careful here. In the broadest sense what the bookshop is doing is a form of what could loosely be described as the “cancel culture”. But there are other aspects of the book seller’s actions that remove it from steps that are taken to silence points of view.

At the risk of sounding like John Galt in Ayn Rand’s Atlas Shrugged the bookshop is a private enterprise that belongs to an individual who can run it as she sees fit, as long as she soes so with in the law. It may be that many may disagree with what she has done. Others may applaud her actions. But she is entitled to run her business as she sees fit.

Cancel Culture

Cancel culture refers to the popular practice of withdrawing support for (cancelling) public figures and companies after they have done or said something considered objectionable or offensive. Cancel culture is generally discussed as being performed on social media in the form of group shaming.

As a manifestation of the freedom of expression there can be little objectionable about the cancel culture as defined above. It is quite legitimate in Thomas Jefferson’s market place of ideas to challenge the ideas expressed by another. The problem with cancel culture is that it is more a form of an in personam rather than a challenge to the validity of the views or ideas themselves. Care must be taken not to stray into areas where there may be legal remedies available by way of an action for defamation or a for a remedy under the Harmful Digital Communications Act.

Of course the usual social media platforms like Facebook, Twitter, Instagram and the like are not the ideal fora for detailed, nuanced or rational debate. Hyperbole and faux outrage prevail and rarely is the substance of an idea carefully, rationally and critically debated. But that said, as I have suggested, it is perfectly legitimate for views to be expressed about the validity of ideas expressed by others.

The problem arises when the cancel culture extends to platform denial. Using my reasoning in support of the bookseller, if I own a hall or a venue I can decide what sort of activities are going to take place there. It is, after all, my property. If I decide I am not going to provide a platform for a supporter of a position with which I disagree, I am entitled to refuse to provide platform for the speaker. There are no freedom of expression issues here because once again the State is not involved in the restriction of expression.

The situation becomes a little more complex if I want to express a view using a platform owned by the City Council. The City Council may refuse to make a Council Hall available. Representatives of the Council may give a reason – that my political views do not align with theirs. It could be said that because the Hall is Council property then property rights prevail – rather like the bookseller example. The difference is that the Council is a public body and the Bill of Rights Act (and the provisions relating to Freedom of Expression) apply because the Act extends to “any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.”

So if the Council were to deny me a platform it would have to offer some justification for doing so and that justification would have to be one that amounts to a reasonable limitation of my right of freedom of expression.

The waters become a little more murky when we consider the position of a University. There have been cases of platform denial by Universities both overseas and in New Zealand. Apart from the traditional role of the University as a forum for debate – often vigorous and heated – it could be argued that the University fulfils a public function especially in light of the fact that substantial sums of taxpayer money are made available to Universities. In such a situation it could be argued that the guarantee of freedom of expression extends to Universities and, like the example of the Council, must provide a justification for the reasonable limitation of the rights of freedom of expression sought to be exercised on campus.

Conclusion

The issues in this paper are highly complex and nuanced. The ramifications of the “cancel culture” and “platform denial” will continue to reverberate for some time and it could be argued that the jury is not yet in on that aspect of the freedom of expression. And of course the role of social media platforms introduces another element. Are they private organisations and as such are like the bookseller? Or are they publishers? And what of the moderating roles that are undertaken. Does that cast upon social media platforms more nuanced and granular responsibilities. I think the days may be over when social media platforms can validly argue that they are no more nor less than common carriers.

But what I have tried to do is to sketch some broad aspects of the freedom of expression and the importance of differentiating freedom of expression as a right in the public as opposed to the private sphere.

The actions of the bookseller may well mean that strict freedom of expression adherents will apply their own “cancel culture” and seek out the works of J.K. Rowling elsewhere including via Amazon or the Book Depository. But that would merely be an exercise of their freedom of choice to refrain from dealing with a person or organization with whose views they strongly disagree.

And in the final analysis that is what democracy and freedom are all about.


[1] Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].

[2] For an overview of censorship in New Zealand see https://en.wikipedia.org/wiki/Censorship_in_New_Zealand

[3] Joanne Morris, Hilary Haines and Jack Shallcrass Pornography: Report of the Ministerial Committee of Inquiry into Pornography (Ministry of Justice, January 1989).

[4] (22 June 1993) 536 NZPD 13989 – Hon Jenny Shipley.

[5] It should be noted that the provisions of s.14 of the New Zealand Bill of Rights Act apply only to state actors.

[6] “Searched for banned book ‘Into the River’ increasing, say Trade Me” The New Zealand Herald (online ed, Auckland, 10 September 2015).

[7] Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015); “New Zealand: Award-winning Into the River novel banned” (7 September 2015) BBC News <www.bbc.com>.

[8] See the detailed description of the plot in Re Into the River No 1 Office of Film and Literature Classification 1300727.000, 11 September 2013.

[9] Re Into the River No 1 Office of Film and Literature Classification 1300727, 11 September 2013.

[10] Re Into the River No 1 Film and Literature Board of Review, 17 December 2013.

[11] Re Into the River No 1 Film and Literature Board of Review, 17 23 December 2013 at [31].

[12] Re Into the River No 1 Film and Literature Board of Review,  23 December 2013 at [47].

[13] Films, Videos, and Publications Classification Act 1993, s 42.

[14] Re Into the River No 2 Office of Film and Literature Classification 1500261.000, 14 August 2015.

[15] See, for example, “Award-winning teen book Into the River banned in New Zealand” Newshub (online ed, New Zealand, 7 September 2015) and Eleanor Ainge Roy “New Zealand bans award-winning teenage novel after outcry from Christian group” The Guardian (online ed, London, 7 September 2015). It also led to a recommendation for a change in the legislation permitting the President to limit an interim restriction order on a publication by age, class of persons, or particular purpose: Films, Videos, and Publications Classification (Interim Restriction Order Classification) Amendment Bill 2016 (205-1).

[16] Re Into the River No 2 Film and Literature Board of Review, 14 October 2015.

[17] https://www.theguardian.com/books/2015/oct/14/ban-lifted-on-new-zealand-young-adult-novel-into-the-river

Dangerous Speech – Some Legislative Proposals

This post was first written in April 2019 and I withheld publication of it for some time. It was finally made available on the Social Science Research Network https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496363 and has attracted some interest. I understand that the paper has been used as a teaching tool in some law schools, in the context of a discussion on Terminiello v City of Chicago 337 US 1 (1949)

This paper considers steps that can be taken to legislate against hate speech. There is a companion paper – “Challenging Speech” – which considers some of the issues raised in this paper in a different content.

The first issue is the term “hate speech” itself and, in light of the proposals advanced, this emotive and largely meaningless term should be replaced with that of “dangerous speech” which more adequately encapsulates the nature of the harm that the law should address.

The existing criminal provisions relating to what I call communications offences are outlined. Proposals are advanced for an addition to the Crimes Act to fill what appears to be a gap in the communications offences and which should be available to both individuals and groups. A brief discussion then follows about section 61 of the Human Rights Act and section 22 of the Harmful Digital Communications Act. It is suggested that major changes to these pieces of legislation is unnecessary.

Communications offences inevitably involve a tension with the freedom of expression under the New Zealand Bill of Rights Act and the discussion demonstrates that the proposal advanced are a justifiable limitation on freedom of expression, but also emphasises that a diverse society must inevitably contain a diversity of opinion which should be freely expressed.  

Introduction

The Context

In the early afternoon of 15 March 2019 a gunman armed with semi-automatic military style weapons attacked two mosques in Christchurch where people had gathered to pray. There were 50 deaths. The alleged gunman was apprehended within about 30 minutes of the attacks. It was found that he had live streamed his actions via Facebook. The stream was viewed by a large number of Facebook members and was shared across Internet platforms.

It also transpired that the alleged gunman had sent a copy of his manifesto entitled “The Great Replacement: Towards a New Society” to a number of recipients using Internet based platforms. Copies of both the live stream and the manifesto have been deemed objectionable by the Chief Censor.[1]

In addition it appears that the alleged gunman participated in discussions on Internet platforms such as 4Chan and 8Chan which are known for some of their discussion threads advocating White Supremacy and Islamophobic tropes

The Reaction

There can be no doubt that what was perpetrated in Christchurch amounted to a hate crime. What has followed has been an outpouring of concern primarily at the fact that the stream of the killings was distributed via Facebook and more widely via the Internet.

The response by Facebook has been less than satisfactory although it would appear that in developing their Livestream facility they then were unable to monitor and control the traffic across it – a digital social media equivalent of Frankenstein’s creature.

However, the killings have focused attention on the wider issue of hate speech and the adequacy of the law to deal with this problem.

Whither “Hate” Speech

The problem with the term “hate speech” is that it is difficult, if not impossible, to define.

Any speech that advocates, incites and intends physical harm to another person must attract legal sanction. It is part of the duty of government to protect its citizens from physical harm.

In such a situation, it matters not that the person against whom the speech is directed is a member of a group or not. All citizens, regardless of any specific identifying characteristics are entitled to be protected from physical harm or from those who would advocate or incite it.

Certain speech may cause harm that is not physical. Such harm may be reputational, economic or psychological. The law provides a civil remedy for such harms.

At the other end of the spectrum – ignoring speech that is anodyne – is the speech that prompts the response “I am offended” – what has been described as the veto statement.[2] From an individual perspective this amounts to a perfectly valid statement of opinion. It may not address the particular argument or engage in any meaningful debate. If anything it is a statement of disengagement akin to “I don’t like what I am hearing.”

Veto Statements

The difficulty arises when such a veto statement claims offence to a group identity. Such groups could include the offended woman, the offended homosexual, the offended person of colour or some other categorization based on the characteristics of a particular group. The difficulty with such veto statements – characterizing a comment as “racist” is another form of veto of the argument – is that they legitimize the purely subjective act of taking offence, generally with negative consequences for others.

Should speech be limited, purely because it causes offence? There are many arguments against this proposition. That which protects people’s rights to say things I find objectionable or offensive is precisely what protects my right to object.  Do we want to live in a society that is so lacking in robustness that we are habitually ready to take offence? Do we want our children to be educated or socialized in this way? Do we desire our children to be treated as adults, or our adults to be treated as children? Should our role model be the thin-skinned individual who cries “I am offended” or those such as Mandela, Baldwin or Gandhi who share the theme that although something may be grossly offensive, it is beneath my dignity to take offence? Those who abuse me demean themselves.

It may well be that yet another veto statement is applied to the mix. What right does a white, privileged, middle-class old male – a member of a secure group – have to say this. It is my opinion that the marginalization of the “I’m offended” veto statement is at least to open the door to proper debate and disagreement.

Furthermore, the subjective taking of offence based on group identity ignores the fact that we live in a diverse and cosmopolitan society. The “I’m offended” veto statement discourages diversity and, in particular, diversity of opinion. One of the strengths of our society is its diversity and multi-cultural nature. Within this societal structure are a large number of different opinions. For members of one group to shut down the opinions of another on the basis of mere offence is counter to the diverse society that we celebrate.

The term “hate speech” is itself a veto statement and often an opposing view is labelled as “hate speech”. The problem with this approach seems to be that the listener hates what has been said and therefore considers the proposition must be “hate speech”. This is arrant nonsense. The fact that we may find a proposition hateful to our moral or philosophical sense merely allows us to choose not to listen further. But it does not mean that because I find a point of view hateful that it should be shut down. As Justice Holmes said in US v Schwimmer[3] “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

Our commitment to freedom of expression lies not in allowing others the freedom to say things with which we agree, but in allowing them the right to say things with which we absolutely disagree.

Finally, in considering the nature of the veto statement “I’m offended” or categorizing a comment as “hate speech” where lies the harm. Is anybody hurt? The harm in fact comes in trying to shut down the debate with the use of the veto statement.

Aspects of “Harm”

However, recent thinking has had a tendency to extend the concept of harm suffered by individuals. It is accepted that the law should target physical harm, but should it protect an individual from any sort of harm. Catherine MacKinnon has formulated a view, based on the work of J.L. Austin, that many words or sentiments are essentially indistinguishable from deeds and therefore, sexist or misogynistic language should be regarded as a form of violence.[4] This form of assaultive speech can be extended to be available to any group based of distinguishing characteristics or identity.

The emphasis is upon the subjectivity of the person offended. What offence there may be is in the sphere of feelings. It may follow from this that if I do not feel I have been offended then I have not been offended. If we reverse the proposition only the individual may judge whether or not they have been offended. I would suggest that this element of subjectivity is not the interest of the law.

The problem is that such an extension of potentially harmful speech becomes equated with “hate speech” and virtually encompasses any form of critical dialogue. To conflate offence with actual harm means that any sort of dialogue may be impossible.

To commit an offence of violence is to perform an action with objective, observable detrimental physical consequences, the seriousness of which requires the intervention of the law. To give offence is to perform an action – the making of a statement – the seriousness of which is in part dependant upon another person’s interpretation of it.

An example may be given by looking at Holocaust denial. Those who deny the Holocaust may insult the Jewish people. That may compound the injury that was caused by the event itself. But the insult is not identical to the injury. To suggest otherwise is to invite censorship. The denial of the Holocaust is patently absurd. But it needs to be debated as it was when Deborah Lipstadt challenged the assertions of David Irving. In an action brought by Irving for defamation his claims of Holocaust denial were examined and ultimately ridiculed.[5]

Jeremy Waldron is an advocate for limits on speech. He argues that since the aim of “hate speech” is to compromise the dignity of those at whom it is targeted it should be subject to restrictions.[6] Waldron argues that public order means more than an absence of violence but includes the peaceful order of civil society and a dignitary order of ordinary people interacting with one another in ordinary ways based upon an arms-length respect.

So what does Waldron mean by dignity. He relies upon the case of Beauharnais v Illinois[7] where the US Supreme Court upheld the constitutionality of a law prohibiting any material that portrayed “depravity, criminality, unchastity or lack of virtue of a class of citizens, of any race, colour, creed or religion.” On this basis Waldron suggests that those who attack the basic social standing and reputation of a group should be deemed to have trespassed upon that group’s dignity and be subject to prosecution. “Hate speech”, he argues, should be aimed at preventing attacks on dignity and not merely offensive viewpoints. Using this approach I could say that Christianity is an evil religion but I could not say Christians are evil people.

The problem with Waldron’s “identity” approach is that is that the dignity of the collective is put before the dignity of its individual members. This raises the difficulty of what may be called “groupthink”. If I think of myself primarily as a member of a group I have defined my identity by my affiliation rather than by myself. This group affiliation suggests a certain fatalism, that possibilities are exhausted, perhaps from birth, and that one cannot be changed. This runs directly against Martin Luther King’s famous statement where he rejected identity based on race but preferred an individual assessment.

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

The problem with the proposition that the state should protect its citizens against what Waldron calls “group defamation” is that it runs the risk of its citizens becoming infantalised, that in fact such an approach undermines their individual dignity by assuming that they cannot answer for themselves.

Rather than encouraging people to be thin-skinned, what is required in a world of increasingly intimate diversity is to learn how to be more thick-skinned and to recognize and celebrate the difference that lies in diversity. As Ronald Dworkin put it, no one has a right not to be offended and in fact we should not take offence too readily. In a free society I may be free to feel offended but should not use that offence to interfere with the freedoms of another.

Dangerous Speech

It will be by now apparent that my view is that “hate speech” is a term that should be avoided, although I accept that it is part of the lexicon, whether we like it or not. Perhaps it might be proper to focus upon the type of speech that society should consider to be unacceptable and that warrants the interference of law.

Any interference must be based on reasonableness and demonstrable justification, given that the right of freedom of expression under the Bill of Rights Act is the subject of interference. To warrant such interference I suggest that rather than use the term “hate speech” the threshold for the interference of the law could be termed “dangerous speech” – speech that presents a danger to an individual or group of individuals.

The intentional advocacy or inciting of physical harm may be classified as “dangerous speech” and justifies the intervention of the law. It is non-specific and available both to individuals and the groups identified in the Human Rights Act. In certain circumstances – where there is incitement to or advocacy of actual physical harm, the intervention of the criminal law is justified.

The law also deals with psychological harm of a special type – serious emotional distress. That is a test in the Harmful Digital Communications Act (HDCA). That legislation applies only to online speech. That may be a lesser form of “dangerous speech” but within the context of the provisions of section 22 HDCA such interference is justified. The elements of intention, actual serious emotional distress and the mixed subjective objective test provide safeguards that could be considered to be a proportionate interference with the freedom of expression and would harmonise the remedies presently available for online speech with that in the physical world.

There are a number of other provisions in the law that deal with forms of speech or communication harms. Some of these warrant discussion because they demonstrate the proper themes that the law should address.

Existing Communications Offences – a summary

The law has been ambivalent towards what could be called speech crimes. Earlier this year the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

The Crimes Act 1961

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

A letter or writing threatening to destroy or damage any property or injure any animal where there is knowledge of the contents of the communication and it is done without lawful justification or excuse and without claim or right is criminalized by section 307.

It will be noted that the type of communication in section 306 may be oral or written but for a threat to damage property the threat must be in writing.

Section 307A is a complicated section.[8] It was added to the Act in 2003 and was part of a number of measures enacted to deal with terrorism after the September 11 2001 tragedy. It has received attention in one case since its enactment – that of Police v Joseph.[9]

Joseph was charged with a breach of s 307A(1)(b) of the Crimes Act 1961 in that he, without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings, did communicate information that he believed to be about an act namely causing explosions likely to cause major property damage.

Mr. Joseph, a secondary school student at the time, created a video clip that lasted a little over three minutes. He used his laptop and sent messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. The message:[10]

•        threatened a terror attack on the New Zealand Government and New Zealand Government buildings.

•        claimed that large amounts of explosives had been placed in hidden locations on all buildings.

•        warned that New Zealand Government websites would be taken down.

•        threatened the hacking of New Zealand’s media websites.

•        threatened to disclose all Government secrets that have not been released to Wikileaks nor the public.

•        warned that obstruction would lead to harm.

The clip demanded that the New Zealand Government repeal or refrain from passing an amendment to the Copyright Act 1994. It was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to the hacktavist group known as Anonymous.

The clip was posted to YouTube. It was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip.

The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[11]

The site was quickly disabled and Mr. Joseph was spoken to by the Police. He made full admissions of his involvement.

The real issue at the trial was one of intent. The intention had to be a specific one. The Judge found that the intention of the defendant was to have his message seen and observed on the Internet and, although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct it did not, however, point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.

The offence prescribed in section 308 does involve communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

  •  threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

  •  Every person is liable to a fine not exceeding $1,000 who,—
  •  in or within view of any public place, behaves in an offensive or disorderly manner; or
  •  in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or
  •  in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

  •  Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.
  •  In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.
  •  It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police.[12] Valerie Morse was convicted in the District Court of behaving in an offensive manner in a public place, after setting fire to the New Zealand flag at the Anzac Day dawn service in Wellington in 2007.

In the District Court, High Court and Court of Appeal offensive behavior was held to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it in the circumstances. A tendency to disrupt public order was not required to constitute behaviour that was offensive. Notwithstanding the freedom of expression guaranteed by NZBORA, the behavior was held to be offensive within the context of the ANZAC observance.

The Supreme Court held that offensive behavior must be behaviour which gives rise to a disturbance of public order. Although agreed that disturbance of public order is a necessary element of offensive behaviour under s 4(1)(a), the Judges differed as to the meaning of “offensive” behaviour. The majority considered that offensive behaviour must be capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate. Furthermore it will be seen that a mixed subjective\objective test is present in that the anger, resentment, disgust or outrage must be measured objectively – how would a reasonable person in this situation respond.

It is important to note that in addition to the orality or behavioural quality of the communication – Anderson J referred to it as behavioural expression[13] –  it must take place in or within view of a public place. It falls within that part of the Summary Offences Act that is concerned with public order and conduct in public places. Finally, offensive behavior is behavior that does more than merely create offence.

Observations on Communications Offences

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behavior has the greatest implications for freedom of expression or expressive behavior, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

A Possible Solution

There is a change that could be made to the law which would address what appears to be something of a gulf between the type of harm contemplated by section 306 and lesser, yet just as significant harms.

I propose that the following language could cover the advocacy or intentional incitement of actual physical injury against individuals or groups. Injury is a lesser physical harm than grievous bodily harm and fills a gap between serious emotional distress present in the HDCA and the harm contemplated by section 306.

The language of the proposal is technology neutral. It could cover the use of words or communication either orally, in writing, electronically or otherwise. Although I dislike the use of the words “for the avoidance of doubt” in legislation for they imply a deficiency of clarity of language in the first place, there could be a definition of words or communication to include the use of electronic media.

The language of the proposal is as follows:

It is an offence to use words or communication that advocates or intends to incite actual physical injury against an individual or group of individuals based upon, in the case of a group, identifiable particular characteristics of that group

This proposal would achieve a number of objectives. It would capture speech or communications that cause or threaten to cause harm of a lesser nature than grievous bodily harm stated in section 306.

The proposal is based upon ascertaining an identifiable harm caused by the speech or communicative act. This enables the nature of the speech to be crystallised in an objective manner rather than the unclear, imprecise and potentially inconsistent use of the umbrella term “hate speech.”

The proposal would cover speech, words or communication across all media. It would establish a common threshold for words or communication below which an offence would be committed.

The proposal would cover any form of communicative act which was the term used by Anderson J in Morse and which the word “expression” used in section 14 of NZBORA encompasses.

The tension between freedom of expression and the limitations that may be imposed by law is acknowledged. It would probably need to be stated, although it should not be necessary, that in applying the provisions of the section the Court would have to have regard to the provisions of the New Zealand Bill of Rights Act 1990.

Other Legislative Initiatives

The Human Rights Act

There has been consideration of expanding other legislative avenues to address the problem of “dangerous” speech. The first avenue lies in the Human Rights Act which prohibits the incitement of disharmony on the basis of race, ethnicity, colour or national origins. One of the recent criticisms of the legislation is that it does not apply to incitement for reasons of religion, gender, disability or sexual orientation.[14]

Before considering whether such changes need to be made – a different consideration to whether they should be made – it is important to understand how the Human Rights Act works in practice. The Act prohibits a number of discriminatory practices in relation to various activities and services.[15] It also prohibits indirect discrimination which is an effects based form of activity.[16] Victimisation or less favourable treatment based on making certain disclosures is prohibited.[17] Discrimination in advertising along with provisions dealing with sexual or racial harassment are the subject of provisions.[18]

The existing provisions relating to racial disharmony as a form of discrimination and racial harassment are contained in section 61 and 63 of the Act.[19]

There are two tests under section 61. One is an examination of the content of the communication. Is it threatening, abusive or insulting? If that has been established the next test is to consider whether it is:

  1. Likely to excite hostility against or
  2. Bring into contempt

Any group of persons either in or coming to New Zealand on the ground of colour, race or ethnic or national origins.

These provisions could well apply to “dangerous speech”. Is it necessary, therefore, to extend the existing categories in section 61 to include religion, gender, disability or sexual orientation.

Religion

Clearly if one were to add religion, threatening, abusive or insulting language about adherents of the Islamic faith would fall within the first limb of the section 61(1) test. But is it necessary that religion be added? And should this be simply because a religious group was targeted?

The difficulty with including threatening, abusive or insulting language against groups based upon religion means that not only would Islamaphobic “hate speech” be caught, but so too would the anti-Christian, anti-West, anti “Crusader” rhetoric of radical Islamic jihadi groups be caught. Would the recent remarks by Winston Peters condemning the implementation of strict sharia law in Brunei that would allow the stoning of homosexuals and adulterers be considered speech that insults members of a religion?[20]

A further difficulty with religious-based speech is that often there are doctrinal differences that can lead to strong differences of opinion that are strongly voiced. Often the consequences for doctrinal heresy will be identified as having certain consequences in the afterlife. Doctrinal disputes, often expressed in strong terms, have been characteristics of religious discourse for centuries. Indeed the history of the development of the freedom of expression and the freedom of the press was often in the context of religious debate and dissent.

It may well be that to add a category of religion or religious groups will have unintended consequences and have the effect of stifling or chilling debate about religious belief.

An example of the difficulty that may arise with restrictions on religious speech may be demonstrated by the statement “God is dead.” This relatively innocuous statement may be insulting or abusive to members of theist groups who would find a fundamental aspect of their belief system challenged. For some groups such a statement may be an invitation to violence against the speaker. Yet the same statement could be insulting or abusive to atheists as well simply for the reason that for God to be dead presupposes the existence of God which challenges a fundamental aspect of atheist belief.

This example illustrates the danger of placing religious discourse into the unlawful categories of discrimination.

If it were to be determined that religious groups would be added to those covered by section 61, stronger wording relating to the consequences of speech should be applicable to such groups. Instead of merely “exciting hostility against” or “bring into contempt” based upon religious differences perhaps the wording should be “advocating and encouraging physical violence against..” .

This would have the effect of being a much stronger test than exists at present under section 61 and recognizes the importance of religious speech and doctrinal dispute.

Gender, Disability or Sexual Orientation

The Human Rights Act already has provisions relating to services-based discrimination on these additional grounds. The question is whether or not there is any demonstrated need to extend the categories protected under section 61 to these groups.

Under the current section 61 test, any threatening, abusive or insulting language directed towards or based upon gender, disability or sexual orientation could qualify as “hate speech” if the speech was likely to excite hostility against or bring into contempt a group of persons. The difficulty lies not so much with threatening language, which is generally clear and easy to determine, but with language which may be abusive or insulting.

Given the sensitivities that many have and the ease with which many are “offended” it could well be that a softer and less robust approach may be taken to what constitutes abusive or insulting language.

For this reason the test surrounding the effect of such speech needs to be abundantly clear. If the categories protected by section 61 are to be extended there must be a clear causative nexus between the speech and the exciting of hostility or the bringing into contempt. Alternatively the test could be strengthened as suggested above to replace the test of exciting hostility or bringing into contempt with “advocating and encouraging physical violence against..”

It should be observed that section 61 covers groups that fall within the protected categories. Individuals within those groups have remedies available to them under the provisions of the Harmful Digital Communications Act 2015.

The Harmful Digital Communications Act 2015

The first observation that must be made is that the Harmful Digital Communications Act 2015 (HDCA) is an example of Internet Exceptionalism in that it deals only with speech communicated via electronic means. It does not cover speech that may take place in a physical public place, by a paper pamphlet or other form of non-electronic communication.

The justification for such exceptionalism was considered by the Law Commission in the Ministerial Briefing Paper.[21] It was premised upon the fact that digital information is pervasive, its communication is not time limited and can take place at any time – thus extending the reach of the cyber-bully – and it is often shared among groups with consequent impact upon relationships. These are some of the properties of digital communications systems to which I have made reference elsewhere.[22]

A second important feature of the HDCA is that the remedies set out in the legislation are not available to groups. They are available only to individuals. Individuals are defined as “natural persons” and applications for civil remedies can only be made by an “affected individual” who alleges that he or she has suffered or will suffer harm as a result of a digital communication.[23] Under section 22 – the offence section – the victim of an offence is the individual who is the target of a posted digital communication.[24]

The HDCA provides remedies for harmful digital communications. A harmful digital communication is one which

  1. Is a digital communication communicated electronically and includes any text message, writing, photograph, picture, recording, or other matter[25]
  2. Causes harm – that is serious emotional distress

In addition there are ten communications principles[26]. Section 6(2) of the Act requires the Court to take these principles into account in performing functions or exercising powers under the Act.

For the purposes of a discussion about “dangerous speech” principles 2, 3, 8 and 10 are relevant. Principle 10 extends the categories present in section 61 of the Human Rights Act to include those discussed above.

The reason for the difference is that the consequences of a harmful digital communication are more of an individual and personal nature. Harm or serious emotional distress must be caused. This may warrant an application for an order pursuant to section 19 of the Act – what may be described as a civil enforcement order. A precondition to an application for any of the orders pursuant to section 19 is that the matter must be considered by the Approved Agency – presently Netsafe.[27] If Netsafe is unable to resolve the matter, then it is open to the affected individual to apply to the District Court.

The orders that are available are not punitive but remedial in nature. They include an order that the communication be taken down or access to it be disabled; that there be an opportunity for a reply or for an apology; that there be a form of restraining order so that the defendant is prohibited from re-posting the material or encouraging others to do so.

In addition orders may be made against online content hosts requiring them to take material down along with the disclosure of the details and particulars of a subscriber who may have posted a harmful digital communication. Internet Service Providers (described in the legislation as IPAPs) may be required to provide details of an anonymous subscriber to the Court.

It should be noted that the element of intending harm need not be present on the part of the person posting the electronic communication. In such a situation the material is measured against the communications principles along with evidence that the communication has caused serious emotional distress.

Section 22 – Causing harm by posting a digital communication

The issue of intentional causation of harm is covered by section 22 of the Act. A mixed subjective-objective test that is required for an assessment of content. The elements necessary for an offence under section 22 HDCA are as follows:

A person must post a digital communication with a specific intention – that it cause harm to a victim;

It must be proven that the posting of the communication would cause harm to an ordinary reasonable person in the position of the victim;

Finally, the communication must cause harm to the victim.

Harm is defined as serious emotional distress. In addition the Court may take a number of factors into account in determining whether a post may cause harm

  1.  the extremity of the language used:
  2.  the age and characteristics of the victim:
  3.  whether the digital communication was anonymous:
  4.  whether the digital communication was repeated:
  5.  the extent of circulation of the digital communication:
  6.  whether the digital communication is true or false:
  7.  the context in which the digital communication appeared.

The requirement that harm be intended as well as caused has been the subject of some criticism. If there has been an intention to cause harm, is it necessary that there be proof that harm was caused? Similarly, surely it is enough that harm was caused even if it were not intended?

As to the first proposition it must be remembered that section 22 criminalises a form of expression. The Law Commission was particularly concerned that the bar should be set high, given the New Zealand Bill of Rights Act 1990 provisions in section 14 regarding freedom of expression. If expression is to be criminalized the consequences of that expression must warrant the involvement of the criminal law and must be accompanied by the requisite mens rea or intention.

As to the second proposition, the unintended causation of harm is covered by the civil enforcement provisions of the legislation. To eliminate the element of intention would make the offence one of strict liability – an outcome reserved primarily for regulatory or public interest types of offence.

The Harmful Digital Communications Act and “Dangerous Speech”

Could the HDCA in its current form be deployed to deal with “dangerous speech”. The first thing to be remembered is that the remedies in the legislation are available to individuals. Thus if there were a post directed towards members of a group, an individual member of that group could consider proceedings.

Would that person be “a victim” within the meaning of section 22? It is important to note that the indefinite article is used rather than the definite one. Conceivably if a post were made about members of a group the collective would be the target of the communication and thus every individual member of that collective could make a complaint and claim to be a target of the communication under section 22(4).

To substantiate the complaint it would be necessary to prove that the communication caused serious emotional distress[28] which may arise from a cumulation of a number of factors.[29] Whether the communication fulfilled the subjective\objective test in section 22(1)(b) would, it is suggested, be clear if the communication amounted to “hate speech”, taking into account the communications principles, along with the factors that should be taken into account in section 22(2)((a) – (g). The issue of intention to cause harm could be discerned either directly or by inference from the nature of the language used in the communication.

In addition it is suggested that the civil remedies would also be available to a member of a group to whom “dangerous speech” was directed. Even although a group may be targeted, an individual member of the group would qualify as an affected individual if serious emotional distress were suffered. A consideration of the communications principles and whether or not the communication was in breach of those principles would be a relatively straightforward matter of interpretation.

The Harmful Digital Communications Act in Action

Although the principal target of the legislation was directed towards cyber-bullying by young people, most of the prosecutions under the Act have been within the context of relationship failures or breakdowns and often have involved the transmission of intimate images or videos – a form of what the English refer to as “revenge porn”. There have been a relatively large number of prosecutions under section 22 – something that was not anticipated by the Law Commission in its Briefing Paper.[30]

Information about the civil enforcement process is difficult to obtain. Although the Act is clear that decisions, including reasons, in proceedings must be published.[31] There are no decisions available on any website to my knowledge.

From my experience there are two issues that arise regarding the civil enforcement process. The first is the way the cases come before the Court. When the legislation was enacted the then Minister of Justice, Judith Collins, considered that the Law Commission recommendation that there be a Communications Tribunal to deal with civil enforcement applications was not necessary and that the jurisdiction under the legislation would form part of the normal civil work of the District Court.

Because of pressures on the District Court, civil work does not receive the highest priority and Harmful Digital Communications applications take their place as part of the ordinary business of the Court. This means that the purpose of the Act in providing a quick and efficient means of redress for victims is not being fulfilled. [32]  One case involving communications via Facebook in January of 2017 has been the subject of several part-heard hearings and has yet to be concluded. Even if the Harmful Digital Communications Act is not to be deployed to deal with “dangerous speech”, it is suggested that consideration be given to the establishment of a Communications Tribunal as suggested by the Law Communication so that hearings of applications can be fast-tracked.

The second issue surrounding the civil enforcement regime involves that of jurisdiction over off-shore online content hosts such as Facebook, Twitter, Instagram and the like. Although Facebook and Google have been cited as parties and have been served in New Zealand, they do not acknowledge the jurisdiction of the Court but nevertheless indicate a willingness to co-operate with requests made by the Court without submitting to the jurisdiction of the Court.

In my view the provisions of Subpart 3 of Part 6 of the District Court Rules would be applicable. These provisions allow service outside New Zealand as a means of establishing the jurisdiction of the New Zealand Courts. The provisions of Rule 6.23 relating to service without leave are not applicable and, as the law stands, the leave of the Court would have to be sought to serve an offshore online content host. This is a complex process that requires a number of matters to be addressed about a case before leave may be granted. Once leave has been granted there may be a protest to the jurisdiction by the online content host before the issue of jurisdiction could be established.

One possible change to the law might be an amendment to Rule 6.23 allowing service of proceedings under the HDCA without the leave of the Court. There would still be the possibility that there would be a protest to the jurisdiction but if that could be answered it would mean that the Courts would be able to properly make orders against offshore online content hosts.

Are Legislative Changes Necessary?

It will be clear by now that the law relating to “dangerous speech” in New Zealand does not require major widespread change or reform. What changes may be needed are relatively minor and maintain the important balance contained in the existing law between protecting citizens or groups from speech that is truly harmful and ensuring that the democratic right to freedom of expression is preserved.

The Importance of Freedom of Expression

The New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (NZBORA) provides at section 14

“Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

This right is not absolute. It is subject to section 5 which provides “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Section 4 reinforces the concept of Parliamentary supremacy. If a specific piece of legislation conflicts or is inconsistent with NZBORA, the specific piece of legislation prevails. Thus, specific pieces of legislation which impose restrictions or limitations upon freedom of expression – such as the Human Rights Act 1993 and the Harmful Digital Communications Act 2015 – prevail although if an enactment can be given a meaning that is consistent with the rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning.[33]

This then provides a test for considering limitations or restrictions on the rights under NZBORA. Limitations must be reasonable and must be demonstrably justified within the context of a free and democratic society.

Thus, when we consider legislation that may impinge upon or limit the freedom of expression the limitation must be

  1. Reasonable
  2. Demonstrably justified
  3. Yet recognizing that we live in a free and democratic society.

The justified limitations test contains within it a very real tension. On the one hand there is a limitation on a freedom. On the other there is a recognition of freedom in that we live in a free and democratic society. I would suggest that although NZBORA does not use this language, the emphasis upon a free and democratic society, and the requirement of reasonableness and demonstrable justification imports an element of necessity. Is the limitation of the freedom necessary?

The problem with freedom of expression is that it is elusive. What sort of limitations on the freedom of expression may be justified?

Freedom of Expression in Practice

The reality with freedom of expression is that it is most tested when we hear things with which we disagree. It is not limited to the comfortable space of agreeable ideas.

Salman Rushdie said that without the freedom to offend the freedom of expression is nothing. Many critics of current debates seem to conflate the freedom to express those ideas with the validity of those ideas, and their judgement on the latter means that they deny the freedom to express them.

The case of Redmond-Bate v DPP[34]  [1999] EWHC Admin 733 was about two women who were arrested for preaching on the steps of a church. Sedley LJ made the following comments:[35]

“I am unable to see any lawful basis for the arrest or therefore the conviction. PC Tennant had done precisely the right thing with the three youths and sent them on their way. There was no suggestion of highway obstruction. Nobody had to stop and listen. If they did so, they were as free to express the view that the preachers should be locked up or silenced as the appellant and her companions were to preach. Mr. Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence. Mr. Kealy was prepared to accept that blame could not attach for a breach of the peace to a speaker so long as what she said was inoffensive. This will not do. Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”

One way of shutting down debate and the freedom of expression is to deny a venue, as we have seen in the unwise decision of Massey University Vice Chancellor Jan Thomas to deny Mr Don Brash a chance to speak on campus. The Auckland City did the same with the recent visit by speakers Lauren Southern and Stefan Molyneux.

Lord Justice Sir Stephen Sedley (who wrote the judgement in Redmond-Bate v DPP above) writing privately, commented on platform denial in this way:

” A great deal of potentially offensive speech takes place in controlled or controllable forums – schools, universities, newspapers, broadcast media – which are able to make and enforce their own rules. For these reasons it may be legitimate to criticise a periodical such as Charlie Hebdo for giving unjustified offence – for incivility, in other words – without for a moment wanting to see it or any similarly pungent periodical penalised or banned. Correspondingly, the “no platform” policies adopted by many tertiary institutions and supported in general by the National Union of Students are intended to protect minorities in the student body from insult or isolation. But the price of this, the stifling of unpopular or abrasive voices, is a high one, and it is arguable that it is healthier for these voices to be heard and challenged. Challenge of course brings its own problems: is it legitimate to shout a speaker down? But these are exactly the margins of civility which institutions need to think about and manage. They are not a justification for taking sides by denying unpopular or abrasive speakers a platform.”[36]

So the upshot of all this is that we should be careful in overreacting in efforts to control, monitor, stifle or censor speech with which we disagree but which may not cross the high threshold of “dangerous speech”. And certainly be careful in trying to hobble the Internet platforms and the ISPs. Because of the global distributed nature of the Internet it would be wrong for anyone to impose their local values upon a world wide communications network. The only justifiable solution would be one that involved international consensus and a recognition of the importance of freedom of expression.

Conclusion

The function of government is to protect its citizens from harm and to hold those who cause harm accountable. By the same token a free exchange of ideas is essential in a healthy and diverse democracy. In such a way diversity of opinion is as essential as the diversity of those who make up the community.

I have posited a solution that recognizes and upholds freedom of expression and yet recognizes that there is a threshold below which untrammeled freedom of expression can cause harm. It is when expression falls below that threshold that the interference of the law is justified,

I have based my proposal upon a term based upon an identifiable and objective consequence – speech which is dangerous – rather than the term “hate speech”. Indeed there are some who suggest that mature democracies should move beyond “hate speech” laws.[37] Ash suggests that it is impossible to reach a conclusive verdict upon the efficacy of “hate speech” laws and suggests that there is scant evidence that mature democracies with extensive hate speech laws manifest any less racism, sexism or other kinds of prejudice than those with few or no such laws.[38] Indeed, it has been suggested that the application of “hate speech” laws has been unpredictable and disproportionate. A further problem with “hate speech” is that they tend to encourage people to take offence rather than learn to live with the fact that there is a diversity of opinions, or ignore it or deal with it by speaking back – preferably with reasoned argument rather than veto statements.

It is for this reason that I have approached the problem from the perspective of objective, identifiable harm rather than wrestling with the very fluid concept of “hate speech.” For that I may be criticized for ducking the issue. The legal solution proposed is a suggested way of confronting the issue rather than ducking it. It preserves freedom of expression as an essential element of a healthy and functioning democracy yet recognizes that there are occasions when individuals and members of groups may be subjected to physical danger arising from forms of expression.

What is essential is that the debate should be conducted in a measured, objective and unemotive manner. Any interference with freedom of expression must be approached with a considerable degree of care. An approach based upon an objectively identifiable danger rather than an emotive concept such as “hate” provides a solution.


[1] Presumably on the grounds that they depict, promote or encourage crime or terrorism or that the publication is injurious to the public good. See the definition of objectionable in the Films Videos and Publications Classification Act 1993

[2] Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic Books, London 2016) p. 211

[3] US v Schwimmer 279 US 644 (1929)

[4] Daphne Patai Heterophobia: sexual harassment and the future of feminism (Rowman and Littlefield, Lanham 1998).

[5] See Irving v Penguin Books Ltd [2000] EWHC  QB 115.

[6] Jeremy Waldron The Harm in Hate Speech (Harvard University Press, Cambridge 2012 p. 120.

[7] Beauharnais v Illinois 343 US 250 (1952).

[8] Section 307A reads as follows:

307A Threats of harm to people or property

(1)           Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—

(a)           threatens to do an act likely to have 1 or more of the results described in subsection (3); or

(b)           communicates information—

(i)            that purports to be about an act likely to have 1 or more of the results described in subsection (3); and

(ii)           that he or she believes to be false.

(2)           The effect is causing a significant disruption of 1 or more of the following things:

(a)           the activities of the civilian population of New Zealand:

(b)           something that is or forms part of an infrastructure facility in New Zealand:

(c)           civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):

(d)           commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

(3)           The results are—

(a)           creating a risk to the health of 1 or more people:

(b)           causing major property damage:

(c)           causing major economic loss to 1 or more persons:

(d)           causing major damage to the national economy of New Zealand.

(4)           To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).

[9] [2013] DCR 482. For a full discussion of this case see David Harvey Collisions in the Digital Paradigm: Law and rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at p. 268 and following.

[10] Police v Joseph above at [2].

[11] Ibid at [7].

[12] [2011] NZSC 45.

[13] Ibid at para [123].

[14] See Human Rights Commission chief legal advisor Janet Bidois quoted in Michelle Duff “Hate crime law review fast-tracked following Christchurch mosque shootings” Stuff 30 March 2019. https://www.stuff.co.nz/national/christchurch-shooting/111661809/hate-crime-law-review-fasttracked-following-christchurch-mosque-shooting

[15] Human Rights Act 1993 sections 21 – 63.

[16] Ibid section 65.

[17] Ibid section 66

[18] Ibid sections 67 and 69.

[19] The provisions of section 61(1) state:

(1)           It shall be unlawful for any person—

(a)           to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television or other electronic communication words which are threatening, abusive, or insulting; or

(b)           to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or

(c)           to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,—

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

It should be noted that Internet based publication is encompassed by the use of the words “or other electronic communication”.

[20] Derek Cheng “Winston Peters criticizes Brunei for imposing strict Sharia law” NZ Herald 31 March 2019 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12217917

[21] New Zealand Law Commission Ministerial Briefing Paper Harmful Digital Communications:The adequacy of the current sanctions and remedies. (New Zealand Law Commission, Wellington, August 2012) https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20MB3.pdf (last accessed 26 April 2019)

[22] See David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet (Hart Publishing, Oxford, 2017) especially at Chapter 2

[23] Harmful Digital Communications Act 2015 section 11.

[24] Harmful Digital Communications Act 2015 section 22(4).

[25] It may also include a consensual or non-consensual intimate video recording

[26] Harmful Digital Communications Act 2015 section 6. These principles are as follows:

Principle 1  A digital communication should not disclose sensitive personal facts about an individual.

Principle 2  A digital communication should not be threatening, intimidating, or menacing.

Principle 3  A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.

Principle 4 A digital communication should not be indecent or obscene.

Principle 5  A digital communication should not be used to harass an individual.

Principle 6  A digital communication should not make a false allegation.

Principle 7  A digital communication should not contain a matter that is published in breach of confidence.

Principle 8  A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.

Principle 9  A digital communication should not incite or encourage an individual to commit suicide.

Principle 10 A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

[27] http://netsafe.org.nz

[28] Harmful Digital Communications Act Section 22(1)(c)

[29] See Police v B [2017] NZHC 526.

[30] For some of the statistics on prosecutions under the Act see Nikki MacDonald “Revenge Porn: Is the Harmful Digital Communications Act Working?” 9 March 2019 https://www.stuff.co.nz/national/crime/110768981/revenge-porn-is-the-harmful-digital-communications-act-working

[31] Harmful Digital Communications Act Section 16(4)

[32] Harmful Digital Communications Act Section 3(b)

[33] See New Zealand Bill of Rights Act section 6. Note also that the Harmful Digital Communications Act provides at section 6 that in performing its functions or exercising powers under the Act the Approved Agency and the Courts must act consistently with the rights and freedoms provided in NZBORA.

[34] [1999] EWHC Admin 733.

[35] Ibid at  para [20].

[36] Stephen Sedley Law and the Whirligig of Time (Hart Publishing, Oxford, 2018) p. 176-177. The emphasis is mine.

[37] For example see Timothy Garton Ash Free Speech: Ten Principles for a Connected World (Atlantic, London 2016) especially at 219 and following.

[38] Ibid.

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A Century of Crisis?

Simon Wilson has written an interesting article about why he is afraid for New Zealand and the US. In it he revisits a number of themes that are dear to his heart and about which he writes frequently. This first part of a two part journalistic mini-series gathers together those themes under an umbrella of fear and concern that possesses Wilson and his world-view. Yet he holds out hope for the future and Part 2 will make an interesting read.

However there is a section in Part One where Wilson has either overlooked, forgotten or ignored history in developing the rhetoric of his polemic. He says:

THE WORLD has changed. We’re into the third decade of the 21st century and if it wasn’t clear from 9/11 and the GFC, it surely is now: this is the Century of Crisis.

The most recent crisis is Covid 19.

But does the first twenty years of the 21st Century present us with a more crisis ridden environment than any other. One has only to look back at the twentieth century which saw two global conflicts – World Wars 1 and 2 although Philipp Bobbit in his excellent “The Shield of Achilles” considers the inter-war period to be a pause in what was a continuing conflict. There was a global pandemic – Spanish flu.

There were a number of mini-crises leading up to World War 1 which characterized the last few years of the nineteenth and the first 14 years of the twentieth century. The Fashoda crisis of 1898, The Boer War which began in earnest in 1899 and ran into the next century, the various confrontations in Morocco, the Balkan Wars of 1912 – 1914. And these are only the problems facing Europe. There were rebellions in China, a war between Japan and Russia and finally the assassination in Sarajevo which was the spark that ignited the explosives of world conflict.

After the 1914 – 18 Conflict there were on-going crises – economic in the form of the problems facing Germany and finally the Great Depression – political especially in the form of the rise of fascism and the continuing crises involving Germany with the Occupation of the Rhineland, Aschluss, the Sudeten Crisis and finally the invasion of Poland which started (or revived) international warfare, not to mention the Spanish Civil War.

Following World War II there were a number of crises including the on-going Cold War, the Berlin Crisis of 1948 and 1961, the Soviet invasion of Hungary in 1958 and the suppression of Prague Spring in Czechoslovakia in 1968, the Cuban Missile Crisis of 1963, the Vietnam War, the economic crisis in 1987 – which hit New Zealand worse than many economies, the Asian financial crisis on the 1990’s  – and the Gulf War of 1990 – 91.

So to describe the present century as a Century of Crisis overlooks the historical record.

The reality is that EVERY century has its share of crises. Each poses its own challenges. We are not unique when the historical record is considered.

Perhaps instead of characterizing these first few years as indicative of a Century of Crisis they could be seen as heralds of yet another century of crises. What has happened so far hardly justifies the dignity of capitalisation which suggests a uniqueness that is not present.

Extreme Hardship and Social Media

“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.”[1]

Introduction

This article considers the Court of Appeal decision in X(CA226/2020) v R[2] (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.[3] 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.[4]

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.

Extreme Hardship

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).[5] 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.[6]

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. [7]

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.[8]

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.

The Discretion

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.[9] The element of open justice must be considered and may prevail unless the circumstances clearly favour the making of an order.[10] Factors that may be taken into account in weighing the competing interests are:

  1. whether the applicant has been convicted,
  2. the seriousness of the offending,
  3. the applicant’s youth and the likely impact publication will have on his or her prospects of rehabilitation
  4. other circumstances personal to the applicant
  5. the interest of victims and the interests of other affected persons
  6. circumstances personal to the defendant,
  7. the views of the victim
  8. the public interest in open justice and in knowing the character of the offender
  9. the presumption of innocence[11]

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.[12]

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.[13]

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

The Background

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.[14]

In the High Court

X appealed to the High Court. In the High Court[15] Whata J considered:

  1. The scale and nature of the media coverage
  2. The likely vilification of X as a sex offender
  3. The likely impact of publication of X’s name on his ability to gain employment
  4. 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.[16]

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.[17]

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.”[18]

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”.[19]

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?[20]

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.[21]

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.

Mainstream Media

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.

That definition of a member of the news media appears in the Ministry of Justice Media Guide for Reporting the Courts and Tribunals Edition 4.1[22] and In-court Media Coverage Guidelines 2016[23].

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[24] 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.[25]

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.[26] 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.”[27] 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.[28] 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[29] 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.[30] 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.[31]

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.[32]

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.”[33]

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.”[34]

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.[35] 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.”[36]

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.”[37]

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.

Commentary

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.

Social Media

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.[38]

What is Social Media?[39]

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.[40] 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.”[41] 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.”[42]

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.”[43] 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.[44]

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.”[45] 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.”[46]

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.[47] 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.[48] 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.[49]

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,[50] 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.”[51] 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.[52]

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:

  1. An excessive focus upon emerging trends in technology, media and users thus limiting their temporal applicability
  2. Being so broad that they could apply to other forms of communication technology such as e-mail
  3. Being so “discipline specific” that they were too limited to be applicable for the development of theory.[53]

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.[54]

Social MediumNot 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.[55] 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.[56]

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.[57]

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.[58] 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.[59] 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[60] 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[61]. 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[62] 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[63] (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[64]:

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.”[65]

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.”[66]

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.[67] It is to be hoped that in subsequent examinations of social media phenomenology to Court will take a more nuanced view.

Unintended Consequences

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[68] 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.[69]

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.[70]

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.

Conclusion

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.[71]


[1] Oscar Wilde The Picture of Dorian Gray Chapter 1.

[2] [2020] NZCA 387

[3] Fagan v Serious Fraud Office [2013] 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 [9]. See also Robertson v Police [2015] NZCA 7 at [39] – [41].

[4] R v Liddell [1995] 1 NZLR 538. The principle has been emphasised in a number of subsequent cases. See for example Proctor v R [1997] 1 NZLR 295, Lewis v Wilson and Horton Ltd. [2000] 3 NZLR, Robertson v Police [2015] NZCA 7, Victim x v Television New Zealand Ltd 92003) 20 CRNZ 194.

[5] Bond v R [2015] NZCA 488; Robertson v Police [2015] NZCA 7; Rougeux v Police [2014] NZHC 979; Jung v Police [2014] NZHC 949.

[6] See DP v R [2015] 2 NZLR 306; BL v R [2013] NZHC 2878; R v Wilson [2014] NZHC 32

[7] B v R [2011] NZCA 331

[8] Hughes v R [2015] NZHC 1501; Byrne v Police [2013] 3416; K v Inland Revenue Dept [2013] NZHC 2426.

[9] Victim X v Television New Zealand Ltd (2003) 20 CRNZ 194; R v Paterson [1992] 1 NZLR 45.

[10] D(CA433/15) v Police [2015] NZCA 541; Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546

[11] 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 [1997] 1 NZLR 295; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007

[12] Hughes v R [2015] NZHC 1501; NN v Police [2015] NZHC 589; R v W [1998] 1 NZLR 35; Beacon Media Group v Waititi [2014] NZHC 281

[13] Proctor v R [1997] 1 NZLR 295; W v Police [1997] 2 NZLR 17; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007

[14] R v [X] [2019] NZDC 24271

[15] [X] v R [2020] NZHC 658

[16] [X] v R [2020] NZHC 658 at para [73]

[17] Criminal Procedure Act 2011 s. 289(2).

[18] [X] v R [2020] NZHC 658  Para [84].

[19] [2020] NZCA 387 at para [40]

[20] 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.”

[21] The emphasis and importance of vilification is developed in the discussion about social media

[22] https://www.justice.govt.nz/about/news-and-media/media-centre/media-information/media-guide-for-reporting-the-courts-and-tribunals-edition-4-1/ (Last accessed 8 September 2020).

[23] 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)

[24] 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)

[25] https://www.mediacouncil.org.nz/principles#membership (Last accessed 6 September 2020)

[26] [2020] NZCA 387 para [49].

[27] 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.

[28] 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)

[29] Law Commission “Suppressing Names and Evidence” (NZLC Rl09, 2009).

[30] [2020] NZCA 387 para [51]

[31] 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)

[32] 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)

[33] [2020] NZCA 387 para [52].

[34] [2020] NZCA 387 para [54]

[35] 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)

[36] [2020] NZCA 387 Para [57]

[37] [2020] NZCA 387 Para [66]

[38] 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)

[39] 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.

[40] 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).

[41] A. Russo, J Watkins,, L. Kelly, & S  Chan,. “Participatory communication with social media.”  (2008). 51 Curator: The Museum Journal 21.

[42] Kaplan & Haenlein above n. 40 p. 61.

[43] B. K. Lewis, “Social media and strategic communication: Attitudes and perceptions among college students.”

(2010). 4 Public Relations Journal, 1 at p. 1.

[44] P. N Howard & M. R Parks. “Social media and political change: Capacity, constraint, and consequence”.

(2012). 62 Journal of Communication 359 at p. 362.

[45] https://www.lexico.com/definition/social_media (Last accessed 8 September 2020).

[46] https://www.lexico.com/definition/social_networking (Last accessed 8 September 2020)

[47] P. N Howard & M. R Parks above n. 44.

[48] Caleb T Carr and Rebecca A. Hayes “Social Media: Defining, Developing, and Divining” (2015) 23 Atlantic Jnl of Communication 46 at p. 47.

[49] Ibid.

[50] 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)

[51] d. m.  boyd  &  N. B. Ellison, “Social network sites: Definition, history, and scholarship”  (2007). 13 Journal of Computer-Mediated Communication 210 at p. 211.

[52] Carr & Hayes above n.48   p. 50.

[53] Ibid.  p.52.

[54] Ibid.  p. 53.

[55] For example Joshua Rozenberg QC @JoshuaRozenberg; David Allan Green @davidallengreen; Adam Wagner @AdamWagner1; “The Secret Barrister” @BarristerSecret; Graeme Edgeler @GraemeEdgeler

[56] Rosa Lemel “A Framework for Developing a Taxonomy of Social Media” (2014) 6 Business Studies Jnl 67.

[57] http://www.fredcavazza.net/2008/06/09/social-media-landscape/ (Last accessed 8 September 2020).

[58]  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).

[59] 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).

[60] 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).

[61] https://fredcavazza.net/2019/05/12/panorama-des-medias-sociaux-2019/ (Last accessed 8 September 2020).

[62] 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)

[63] 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.

[64] 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).

[65] X v R [2020] NZCA 397 para [53].

[66] 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).

[67] 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).

[68] See s. 210(2) Criminal Procedure Act 2011

[69] 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). 

[70] David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) p. 23 and following.

[71] X v R [2020] NZCA 387 para [49].

Impeding Technology – Legal Culture and Technological Resistance

Introduction

This paper is about a collision between the culture and symbolism that accompanies the administration of law and technologies that enable change and a different way of doing things yet are the focus of resistance. I argue that this resistance at its heart is cultural and has little to do with legal doctrine.

The particular technologies that I shall discuss are communications technologies that enable and facilitate remote hearings where the participants need not attend a courthouse for a hearing of their dispute. The resistance is, as I have suggested, cultural and is based upon a number of factors including the way in which the imagination and the image of the Court as a symbol is represented and the role that imagery plays in the perception of the delivery of justice.

This cultural aspect also has relevance on the way in which the Rule of Law is perceived within the context of the “Court as a Place”. I argue that whatever imperatives may have underpinned the “Court as a Place” model of the delivery of justice, they are no longer as relevant or meaningful as they once might have been and that new communications technologies allow us to reimagine and revisit the way in which justice is delivered.

Justice, the law and the Rule of Law have been characterized as a “looming omnipresence in the sky” in the sense that although associated with rules governing the behaviour of individuals and groups within society it has certain intangible aspects that render it a somewhat slippery customer. Yet it fulfils a role within government structures and provides a system for the resolution of disputes between individuals and groups or between the State and the individual.

Although, as I shall argue, there is an air of mysticism and symbolic ritual that surrounds the law and legal process, in its most essential and most basic manifestation the legal process is an exercise in information exchange. I argue that the means by which information is exchanged has had an impact upon the way in which the legal process has developed.

We are now in the Digital Paradigm with all the various different means of communication that are now available. These include the tools for remote working which allow us to reimagine the way in which the Court operates and yet maintain those information flows that are essential to the legal and judicial process.

I argue that resistance to such reimagining is primarily cultural that includes a reluctance to move from what could be called a cultural comfort zone. I further argue that there is a certain inevitability that remote hearings increase in frequency and become normalized as part of the process. Underpinning this argument is the fact that new communications technologies shape our communications behaviours which in turn influence or modify our values and our acceptance of different ways of doing things. The argument is summed up in Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us”.

Given that a court hearing is an information exchange, I shall argue that the assumptions that underpin the “Court as a Place” model or hearing may give way to what Professor Richard Susskind calls the “Court as a Service”.

I shall argue that those who prefer the “Court as a Place” model must be honest in recognizing that their adherence to that model is based upon deep-seated cultural preferences and assumptions about what the technology can do rather than upon any legal imperative.

The Rule of Law as a Benchmark for Technological Innovation

There is a school of thought that suggests that rather than rushing to embrace new technologies in the justice process, some caution should be employed in evaluating those technologies and whether they fulfil the objectives of the rule of law. 

The Chief Justice of New Zealand Dame Helen Winkelmann sets out a number of criteria that should be considered and against which new technological developments should be measured before their acceptance and deployment into the justice system[1]. However, the onset of the Covid 19 crisis accelerated the deployment of remote working facilities out of necessity, simply to keep the Court system, or aspects of it, running.

When read alongside an earlier paper that she delivered to the Criminal Bar Association Conference in August of 2019[2], the Chief Justice develops a theme that, whilst not necessarily suggesting that there should be little use of technology in the courts, suggests a certain conservatism,  a desire to maintain existing systems and an underlining sub-text that present systems, as far as they can be, fulfil the objectives of the rule of law. 

One of the abiding principles present in both papers is the recognition by the Chief Justice of the importance of physical presence by all the participants in the court system in the one place at the one time.  This focuses, therefore, attention upon the concept of the “court as a place” that fulfils a number of functions, some of them substantive, some of them procedural and some of them symbolic. 

This runs up against the views of Professor Richard Susskind, who considers that the courts of the future should be seen as “courts as a service” and that place should not matter.  In this regard, the Chief Justice, in her January 2020 paper, addresses directly and obliquely some of the issues that are raised by Professor Susskind in his advocacy for an on-line court or remote working system.

There can be no dispute with the proposition that the Rule of Law must be the standard against which technological innovation should be measured. The question that must be posed is whether the innovation proposed enhances or detracts from the performance by the courts of this task.

In a State living under the Rule of Law, the laws administered by the court must have a certain substantive content, affording adequate protection of fundamental human rights.  These human rights are necessary pre-conditions for equal access to the protection of law before the courts but it is argued that there is another element, which is that if society’s laws do not afford protection for these rights then those who sit outside the law’s protection have no reason to accept those laws or the decision of the courts.  Social cohesion, it is argued, is a necessary pre-condition to the rule of law and it is suggested that physical presence enhances that social cohesion.

The Courts as a Manifestation of the Rule of Law

Rather than providing a service, as suggested by Professor Susskind, the Chief Justice considers that the work the Courts do is more than that and is in fact a public good requiring a public performance by way of hearings in a local courthouse, involving participation and human interaction, which affords human dignity to those involved in civil and criminal proceedings.

This emphasis upon the “performance” aspect of the law is one of a number of criteria that support the way in which the Courts administer the Rule of Law. Among these aspects are

  •   The existence of an independent judiciary.
  •   The public administration of law.
  •   The importance of the local courthouse to the rule of law
  •   The work of lawyers is critical to supporting the rule of law
  •   That the court hearing is a public demonstration of the rule of law in action
  •   Public hearings exemplify fairness and legality

If technological innovation does not enhance one or more of these elements of the Rule of Law, then it can have no place within the system. The list of items all have certain common elements to them. The law must be administered in public – the transparency issue that I shall discuss shortly. That transparency, it is argued, requires a courthouse, with its attendant symbolism which I shall shortly consider. Lawyers are a part of that performance rite which demonstrates the law in action – again harking back to transparency – and fair and public hearings demonstrating this important aspect of the Rule of Law process.

Thus, to summarise the point thus far, within the Rule of Law model proposed there is an emphasis upon the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what is describes as the performative aspect or what I have characterised as the performance rite.

But does transparency involve the physical presence of all the participants in the same place at the same time? I suggest that it does not, and that the element of transparency can be achieved utilising technology.

Transparency

The Court has evolved as location where citizens go – or are taken – to air their disputes or have them resolved in a manner that is largely open and available. Thus, one of the criticisms of Remote Court Hearings (RCH) and the Online Court (OC) is the lack of transparency and thus represents an affront to open justice represented by public hearings.

Open justice and transparency suggest visibility of Court processes, procedures and operations, of information about the Courts such as data about cases and volumes as well as scheduling and the cost to the taxpayer.

The public should have access to advance notice of hearings, to a record of proceedings and information about the business before the Courts along with the substance of a determination or decision and an explanation or reasons for a decision.

Traditionally, hearings have been in a public forum in all but exceptional circumstances and the media should be present to report proceedings as surrogates of the public. This is what Professor Susskind refers to as “real-time transparency.”[3]

The remote hearing is criticized because it challenges “real time transparency”. In a completely on-line court there is no physical courtroom into which the public or media may venture. The question is whether or not this suggested “threat” is a real one.

The reality is that real-time transparency is more limited today than is acknowledged. We trumpet the openness and availability of courts but policies that involve closing down court houses and centralizing the administration of justice remove that aspect of transparency from local communities.

The difficulties in actually travelling to a Courthouse to benefit from that so-called transparency has its own problems including the availability of public transport or, if a private car is used, parking in a busy urban location. Only in cases of high profile criminal trials do members of the public present exceed the capacity of the courtroom to seat them. In most criminal cases those present are directly affected – complainants and their inevitable support networks or families of the accused.

This suggested loss of transparency suggests, in the minds of critics, that hearings will take place in secret giving rise to suggestions of “Star Chamber justice”.

This is patently unsustainable. With the multitude of communications platforms available Court hearings can be broadcast online. The case of State of Washington v Trump before the 9th Circuit Court of Appeals was broadcast over Internet platforms to an audience of over 131,000 people. In addition none of the Judges were in the same place but teleconferenced in to the hearing.[4]

The issue of open justice and transparency can be addressed by providing for a stream of proceedings before the Court if there is a full hearing or, if the decision is “on the papers” the online publication of the reasons for a decision.

The Covid 19 crisis immediately challenged the concept of transparency of Court proceedings by virtue of distancing and gathering requirements as well as restrictions on travel. Although the Courts in New Zealand were considered an essential service, adaptations had to be made. In many cases defendants in criminal courts appeared by way of Audio-Visual links (AVL). Counsel were “present” by way of virtual meeting room or conferencing software that allowed for audio and video. In some case even the Judge appeared remotely as distinct from sitting in a Courtroom.

Importantly the media were able to join the Court remotely and participate in being able to observe and report the hearings as they might have done in real-time. Indeed, the ability of the news media to “attend” a number of courts without leaving news desks actually enhanced the ability of the media to report Court proceedings and act as surrogates of the public.

It may be seen from these examples that concerns about transparency that are associated with “real-time” courts have little substance in the face of technological solutions that are available for remote working.

A Fair Trial?

But there are some deeper criticisms of the RCH or OC model. Can a RCH or the OC deliver a fair trial. This raises the question of whether or not the work of the Courts must be conducted on a face to face basis to achieve a just outcome.

The question becomes one of whether the public hearing is equated with a physical one. Professor Susskind suggests that our concept of “public” has evolved as communications technology has improved[5]. Online access to meetings, lectures and events is considered “public”.

This has moved even further during the Covid 19 crisis when, for example, the Auckland Theatre Company “staged” an online and very public version of Chekhov’s “The Seagull” to international acclaim.[6] The New Zealand Symphony Orchestra performed online concerts during the Covid 19 lockdown and has and as at the date of writing continues to present very public performances online[7]. Thus, the Internet provides an element of public participation in terms of performance and the gathering of information.

The public perception of the administration of justice – of fair process and fair trial- through the Court system has four basic elements – all of them procedural. They are that all cases should be treated alike; that parties should be given the opportunity to state their case before a Judge who has no personal interest in the dispute; judges should be impartial and work within a judicial system that is independent and that cases should be judged and not the parties.

The issue is whether these elements require, as a pre-condition, first, a physical presence on the part of participants and secondly, that presence in a structure or building that is largely symbolic and associated with a number of seemingly arcane rituals that are the province of a select priesthood – the lawyers.[8]

What is more important, it is suggested, is that the decisions of the Courts are fair, the processes are fair and in accordance with the rules of natural justice, that the participants are satisfied that they are so and that access to the courts is available across the community at an affordable cost.

Perceptions of Participation

The remote working model, it is argued, challenges the importance of litigants being treated with dignity and respect and the importance of human interaction between litigant lawyer and Judge.

The argument is that the on-line or remote working model challenges parties’ perception of participation and the critical importance of the presentation of one’s case in court. These perceptions have a common theme which is that of the level of engagement that may take place during a Court hearing and the impact of a remote appearance as opposed to an “in person” one.

Associated with the level of engagement are what could be termed participatory elements operate at a more visceral level and could be summed up in the terms “the day in court” and “the face to face hearing” which has its origins in the concept of confrontation between accuser and accused. I shall first discuss the level of engagement and then proceed to consider the elements of the “day in court” and “the face to face hearing”. I suggest that none of these issues are compromised by a remote hearing.

Level of Engagement

This aspect could be described as the “level of engagement” and that an appearance remotely may mean that the participant is not as fully “present” as she or he may be in person.

Once again, the Covid 19 experience is instructive. Counsel have certainly shown as great a level of engagement working remotely as if they were present in Court. The amusing observation by one defence lawyer that she wore a working blouse and blazer on top and track pants out of shot seemed to have little impact upon her level of engagement in a 90 minute opposed bail application.

It has been my observation as a Judge dealing with accused persons via an AVL link that they are as engaged as if they were present in person – perhaps even more so for they are able to remain focussed on what is occurring on the screen rather than having informal and signalled communications with friends or family members in Court. 

Lambie and Hyland discuss the importance of these early interactions with the Court.

“the pre-trial period should be viewed in New Zealand as it is in other jurisdictions; as a window of opportunity to provide the appropriate wrap around service provision that is required by the individual and their whanau”.[9]

However important that part of the process might be, and I agree that it is, I do not see that a remote appearance compromises the matters raised by Lambie and Hyland. As I have observed, the level of engagement is just as high with a remote appearance as it is with an in person one.

In some respects the level of engagement can be higher in that the positioning and size of the screens upon which people appear can play a part. Professor Susskind referred to the value of a large high definition screen[10]. My only observation about that in the context of the New Zealand Courts in general and the District Court in particular is the positioning of screens which should, as much as possible, reflect the positioning of the participants as if they were present in person. This is a matter which will have to be addressed in Courtroom design or configuration if remote hearings are to continue and become a part of the Courtroom toolbox.

Another matter raised is that of trustworthiness but what really could be described as empathy where there is a perception that the decision-maker actually cares about the case. This arises as a result of the dynamic of the hearing but could be as applicable to the online as to the in-person experience. 

Finally, there is the issue of neutrality, which can take place within the context of an oral hearing in which the parties have an opportunity to be heard and where the Judge is seen to be paying equal attention to the arguments of each side. This is an important aspect of the “level of engagement” issue.

Participants must also remember that, as in a physical courtroom, they are always “on” and care must be taken to behave in an engaging, interesting, respectful manner.

These latter matters fold into another issue about participation and that is the sense that litigants are entitled to their “day in court”. This phrase carries within it a number of elements. One of them, fundamental to the Rule of Law argument, is that everyone should have access to the court process for the resolution of a dispute. But does that mean physical presence or rather the availability of the services that the Court offers?

The “Day in Court”

Will remote hearings or remote “presence” will deprive litigants of their “day in Court” or access to the dispute resolution services that the Court provides.  The first point to be made is that remote hearings or remote participation should be seen as one means of allowing for “presence” at a hearing. It is not suggested that all hearings should be conducted remotely.

A remote hearing would offer much of the essence of the physical presence offered by day in court, particularly as remote video technology improves. It would also offer a remote day in court to those facing difficulties in personal attendance. The growth and development of remote communication and familiarity with getting information from a screen may make determination of substantive legal rights in circumstances other than face to face less of a departure from the cultural norm than may be perceived at present.

The real question is whether or not we are prepared to deny citizens access to the services of the Court because of their inability to be physically present. Quaestio caedit.

The “Face to Face” Hearing

The “Face to face” hearing is based on the assumption that remote hearings will deprive litigants of “face to face” justice. This could well be a misunderstanding of the nature of the so-called confrontation right[11] and is an argument based more upon tradition and a reliance upon earlier paradigms than any rational justification.

The concept of the “human face” of justice is considered significant. This has been advanced by Dr. Ian Lambie and Olivia Hyland in two articles[12] and has been articulated by Andrew Langdon QC in his inaugural speech as Chairman of the Bar of England and Wale who said:

“The humanity of physical presence is, I suggest, an important component in the delivery of justice…Being in the physical presence of a witness or a jury or a defendant or a Judge or your lawyers …..isn’t that fundamental to our innate sense of how justice should be delivered?…Justice has a human face, and its not a face on a screen…Many smaller cases benefit from getting everyone together in one place. The dynamic between the parties becomes evident; whether one side is unfairly dominating the other, whether one party is as well-heeled as the other.”[13]

The underlying themes of these comments are that justice must be done in person, the participants must be able to look one another in the eye, claimants and victims need to meet face to face, the humanity of justice can only be done in a largely symbolic centrally located building, justice is personal and the playing field is levelled by physical presence.

Recent developments arising out of the Covid 19 crisis have demonstrated some of the fallacies about the necessity for physical presence. I have noted the evidence of Professor Richard Susskind to House of Lords Constitutional Committee, where he commented on the fact that remote hearings could be used to determine credibility issues and noted the advantages of the full-screen view of a witness.[14]

Susskind also raises the issue of the fact that one may get a sense of a person’s credibility and their demeanour by looking at them on a high definition screen where the video is close to the face. It should be noted in this context that there have been some critics of the importance of demeanour in the fact finding process. A considerable amount of importance is placed by some on demeanour. Does the insight that a Judge may gain from seeing a witness face to face be as frequent or as accurate a perception in the remote hearing.[15]

The issue of demeanour as a guide to truth telling and the reliance upon non-verbal cues as an aid to assessing credibility has been the subject of a considerable body of literature from the field of the behavioural science, and the overwhelming conclusion is that demeanour is not a useful guide to veracity.[16] 

There is no philosophical nor empirical justification for a need for face-to-face interaction – especially in the Internet age. The rules of natural justice are not threatened by the remote hearing model and there is certainly no constitutional principle that requires that justice can only be achieved where there is a form of face to face resolution. The issue of the “face to face” critique is met by the deployment of video systems to create a “virtual” or “online” court and the improvements in technology as noted by Professor Susskind may well enhance the evidence giving process.

There can be no doubt that the critics of RCH or OC believe that a move away from physical hearings is a retrograde – indeed fatal – step for the administration of justice. For most of our lives we have one conception of the resolution of disputes through the Court process. We have become attached to the environment that has provided us with careers and for a great many with prosperity. It is hard to conceive that there may be radically different ways of achieving the same outcome. We are culturally attuned to our way of attempting to achieve justice and in many respects we tend to support that cultural acclimatization with almost mythical and symbolic elements.

The cultural aspect of presence-based arguments have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication. 

The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago.  Only when new technologies came into play, such as the development of the printing press and its impact upon law and legal culture, were there small and incremental changes in legal culture. 

One of these changes involved reliance upon printed materials as a record of what the law was.  As Lord Camden said in Entick v Carrington[17] “if it is not in our books it is not the law” and, in saying that, he was summing up the importance of the printed record as law as opposed to the concept of immemorial custom that had been a feature of earlier iterations of the development of the English legal system.

Up until the 1930s and the development of digital systems, all of our communications took place within the context of what could be described of analogue systems such as print, radio, wireless, television and the like.  Only when the internet went public in the early 1990s did the real digital revolution take place. 

Within this context, the number of different methods and systems of communication arose – all of them deploying digital technologies.  This may not mean a lot but, in fact, it is important when we consider that the presentation of a court case, with all of the cultural aspects referred to, involves an information exchange. The advantages of new technologies are that the abilities to engage in that information exchange are enhanced and improved.

It is to the cultural and sub-conscious preferences for the in-person model that I shall now turn.

  Cultural Issues

In the next section I shall develop the argument that many of the reasons for opposition to remote hearings and online courts are based on cultural habits and expectations rather than having anything to do with the integrity of the law.

Legal culture, in its most general sense, is one describing relatively stable patterns of oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the way judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do.[18]

In this section I shall consider the way in which legal culture is represented in image and otherwise to demonstrate some of the ways in which the Rule of Law is represented that has little to do with its real purpose but rather creates a psychological mythology of how those in power wish the law to be perceived by those whom it governs.

Court, Culture and Information

The trial is the law’s high theatre. The Courtroom is a stage and the participants are the players. Some, such as witnesses, have bit parts. Some are major players – on stage throughout the whole performance. It is little wonder that trials – especially criminal trials – feature so frequently in literature and in entertainment. The trial scene in Shakespeare’s ”Merchant of Venice” is gripping drama as well as being a showpiece for a number of jurisprudential theories. The trial is a set piece in Harper Lee’s “To Kill a Mockingbird” and the film “Witness for the Prosecution” is the trial itself. The trial dynamic brings all the players into the one place, with the classic dramatic formulae of human interactions, conflict and denoument. Television is replete with lawyer shows in which trials feature – “Rumpole of the Bailey” and “Silk” provide two examples.

Of course the trial is more than that. It is a critical part of a State provided dispute resolution process that has evolved over the centuries and is characterised by elegantly moderated reasoned arguments supported by specialised information which lawyers call evidence.

In the same way that the practice of law involves the acquisition, processing, sharing and communication of information, likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges’ Clerks.

Thus, a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management.[19]

Courts and Communication

Historically the conduct of a Court hearing has involved an oral exchange. This practice developed simply because there was no other way to convey information. Those who had a grievance would bring it before the chieftain or ruler and would seek redress. What we understand as the Rule of Law in its most embryonic form was to prevent the destruction of the members of a community or even the community itself by retribution or blood feuds.

Judges became the proxy for the ruler or, in the case of England, the King. Whereas the King would hear disputes in his court, so Judges adopted “the court” as the central place for hearing and resolving disputes. In England the Royal Courts occupied sections of Westminster Hall. The King’s Judges did not sit permanently in the Courts that were located in the towns and cities. They attended regularly at Assizes.[20]

Written pleadings were not a feature of the early Courts. The entire process was an oral one, although written pleadings did become an important part of the court process. A misdrawn pleading could result is a dismissed case for want of form.[21]

That this model continued through into the nineteenth and twentieth centuries is quite understandable. The technology simply was not available to conduct a hearing in any other way. The advent of the printing press presented a means by which legal information could be accurately recorded, standardized and duplicated[22] but this had little impact upon the way in which Court cases proceeded, although, as has been observed, printed law gradually achieved a level of acceptance whereby it became sufficiently authoritative to be relied upon by Judges as a source of law.

Although significant procedural changes came about with the merging of the Courts of Common Law and Equity perhaps the first technological innovation arose as a result of the use of the typewriter, and carefully crafted copperplate manuscript pleadings gave way to typewritten ones. Other technological innovations became a part of the Court system. The telephone as a means of communication between Court and participants became routine. To the dismay of many judges innovations such as the photocopier allowed for the presentation of large amounts of information and so the means of information transmission began to improve and increase. Despite the occasional incident of resistance to the use of a new technology it is doubtful that its introduction was opposed on the basis that it would result in fundamental or do substantial damage to the Rule of Law.

Rather, I would suggest, the acceptance of technologies such as evidence of tape recordings and closed circuit TV, evidence of tape recorded or video recorded evidential statements, the use of sound recording for the purposes of creating the Court record have all been accepted with little resistance. Perhaps this is because some of the apparent fundamental aspects of the court hearing have remained intact – the oral hearing, the gathering together of all the parties and witnesses in the one place in a Court – a word that echoes the Royal origins of the process – remain.

Yet the basic method of conducting a case – bringing information before the Court so that the fact finder may process that information and in turn reverse the flow of information back to the parties – remains.

Symbols, Imagery and the Culture of Law

But around the very basic process of information exchange a certain mystique, ritualism and symbolism has developed. This has to do with the mythologizing of the legal process – elevating it in importance as an aspect of the Rule of Law. But these mystical elements must give way to new and different ways of achieving the outcomes that the legal process seeks. As the legal process has done in the past, the adoption and use of new technologies may achieve this and at the same time maintain and enhance its relevance in the hearts and minds of the citizenry.

The Symbols of Justice

Societies have sought to define the nebulous virtue of justice through visual allegories and metaphors, along with libraries of books, articles, tales and parables written and told to imbue the abstraction of justice with meaning.

The management of image in the service of power is well known in modern politics although imagery and symbolism has played a part in depicting and representing power structures, along with other abstract ideas, throughout history[23]. Much of this symbolism is represented in art, objects or architecture. The law is no stranger the use of symbols and other representations to enhance or solidify its importance in society.

In Ancient Greece Themis – a Titaness – is described as “[the Lady] of good counsel”, and is the personification of divine order, fairness, law, natural law, and custom. Her symbols are the Scales of Justice, tools used to remain balanced and pragmatic. Themis means “divine law” rather than human ordinance, literally “that which is put in place”, from the Greek verb títhēmi (τίθημι), meaning “to put”. Her Roman equivalent was Iustitia.

Themis is perhaps the most recognizable symbol of justice and her statue may be found in many Court locations, perhaps the most recognizable to those of the Anglo-American tradition as the figure on the dome of the Old Bailey. She is referred to as Lady Justice and is often portrayed not only with scales but also with a blindfold, a further symbol within a symbol, representing the impartiality and objectivity of justice.  Her scales represent weighing competing arguments or propositions and the sword is the sword of power and punishment.  In some representations a snake appears under her foot, representing the overcoming of evil as well as, latterly, a book representing a source of law[24].

In earlier imagery she was not seen as standing alone but was flanked by Temperance, Prudence, Fortitude and other classical virtues. With her sisters relegated to antiquity, however, justice has come to be treated as a self-sufficient ideal, a secularized cardinal virtue for the moderns.

She is the totem onto which Western societies have projected their concerns about power and legitimacy. Her omnipresence is a visual reminder of John Rawls’s famous dictum that ‘justice is the first virtue of social institutions’.

This image is perhaps the most recognizable of justice and its association with Court.

The Courthouse

The courthouse as a central location for the administration of justice is frequently portrayed as an imposing structure, often harking back to classical elements. Examples may be found in the United States Supreme Court Building or the imposing, almost overpowering façade of the Royal Courts of Justice in London or the Palais de Justice in Paris.[25]

The architecture of courthouses frequently incorporates pillars or similar architectural motifs. The pillars represent strength and sustainability, representing a reliable justice system.

Frequently the neoclassical architectural style that characterizes the United States Supreme Court along with many other Courthouses in the United States reflects the desire of the State to connect with a mythical past or ideal of justice embodied by Graeco-Roman temples or other famous buildings of antiquity. Indeed, court construction at a national, regional or transnational level is deeply self-conscious, engaged with history by seeking to embrace and link to traditions and often culture.[26]

On the other hand because the imagery of justice has been deployed to sanction power, the handful of images that suggest that justice might sometimes require defying the law are powerful and haunting. The South African Constitutional Court has been built on the site of an apartheid-era prison, and preserves the marks of decades of abuse perpetrated within its confines.

The murals that adorn the Mexican Supreme Court provide equally visceral reminders of egregious and arbitrary uses of state power. Rafael Cauduro’s arresting images break with the usual piety of courthouse art in  which justice is represented as the guiding light of a benevolent state, and instead depict acts of torture, rape and mass murder carried out by agents of the State.”[27]

These representations of justice within the context of a Courthouse – location in the case of South Africa – murals in the case of Mexico – stand out as reminders of the importance of justice in opposition to the arbitrary use of repressive State power and the important function performed by the Rule of Law to protect the rights and dignity of citizens.

However, more recently we witness the grand architecture of courts being eschewed in favor of multipurpose ‘law enforcement centers’ that fulfill a range of bureaucratic functions. The contrast between the visual grandeur of traditional courts and the invisibility of new forms of adjudication underlines the fact that the latter are much less accessible to the public even though they ‘decide the rights and obligations of hundreds of thousands of individuals’.  

Even in the case of administrative hearings that as a practical matter, everyone has the “right” to attend’, the proceedings are physically difficult to locate. Perhaps, given the developments in modern Courthouse design, our representation of justice as of the imposing, powerful, symmetrical and even handed is itself being mythologized.

Ritual

Courtroom ritual fulfils a number of functions. What to many may seem to be a somewhat unusual sequence of bows when a Judge enters the courtroom is a mark of mutual respect for the participants in the process. The somewhat arcane language – “May it please your Honour” – is indicative of respectfulness and for some provides a path in to the development of an argument.

If anything it is in the rituals of the Court that we see the greatest practicality of the process. In essence the Court provides a forum for competing arguments. Despite the drama and raised voices that one sees in American courtroom TV shows, the argument that is carried out in Court is very restrained and conducted, for the main, rationally and within a very constrained framework. Raised voices are not tolerated. Personal opinions are eschewed in favour of the advancement of a proposition. “I think” is replaced with “I submit”.

Yet in many respects this means of presentation of an argument in itself represents a move towards a comfort zone. True, the development of advocacy has taken place over a number of years and has reached a point where there seems little room for innovation. But at the same time it represents an aspect of comfort with process that itself obstructs any suggestion that there may be a better or more effective way of presenting a proposition[28]. For this reason, despite the obvious advantages of modern advocacy allowing a number of technology enhanced forms of presentation, I consider Courtroom ritual to be an aspect of cultural impediments to change.

The Imagery of Justice

The symbols, imagery and architectural styles are part and parcel of the representations that to an extent mythologize justice to the point where those symbols become cultural imperatives for the way in which the system is required and expected to operate. Within many Courthouses are great halls, entry porticos, in some cases doors engraved with symbols, conspicuous images of national identity such as coats of arms or other forms of constitutional iconography representing or portraying legitimacy of what takes place within the temple-like structure.

The Courtroom or courtrooms themselves and their location in the building often structurally or by way of positioning represent the hierarchical nature of the law and indeed the legal establishment. Many Courthouses have a large main Courtroom, often used for ceremonial purposes, surrounded by a number of smaller Courtrooms. Within these ceremonial courtrooms, often replete with large paintings depicting Jurists or Heads of Bench, the rituals and cultural underpinning of the law are enhanced. On ceremonial occasions in New Zealand Queens Counsel are seated in order or appointment and are called upon in that order for no other purpose than to recognize their presence – a process that is mystifying to members of the public who are not members of the legal “priesthood.”

The Courtroom itself contains its own hierarchies with a raised bench, counsel’s table – prosecution or Crown at the front, defence behind for no other reason, like many legal cultural practices,  than that is the way that it has always been –  and the public behind a bar beyond which only certain persons may pass.

In appellate Courtrooms the design is usually very symmetrical with equally symmetrical seating for the Judges, the President or the Chief Justice in the centre. Once again the quaint and polite rituals take place. Before the Judges are seated and before they bow to those in the Court they bow to each other.

Apart from the central seat, the seating of the Judges represents the egalitarian nature of the Judges who occupy the same bench, although that said in most of the top appellate courts the judges sit from the centre based on their seniority. Seniority is another quaint aspect of the imagery of legal culture.

The layout of the Courtroom is reminiscent of a place of worship – the Bench is in the place of the altar and often behind it is a form of iconography be it a flag or other national symbol like a coat of arms. The area before the Bar where counsel and other officers of the Court may take their place is akin to the sanctuary – an area reserved for the priesthood – and the public gallery seating is similar to the pews in a church.

The impact of the imagery of justice and especially the Courthouse is not restricted to those attending.  The images of Court buildings appears countless times in newspapers, television and online in any number of places owing to an intense focus on Court hearings from national media coverage. This use of the imagery of justice enhances the perceived power of the Court, adding to the cultural significance of the legal process.

At the same time the top appellate Courthouses perpetuate the imagery and representations of justice by being not only symbolic of government authority but, as they become empty of the business of judging and evolve into museums for school children and destinations for tourists, they are becoming themselves symbols for courts.[29]

The Majesty of the Law

So far I have demonstrated how the symbolism of the law has become part of the cultural heritage of those involved in its practice and administration. To interfere with the symbols and images of the law would at best be culturally uncomfortable and at worst be seen as rending the fabric of the Rule of Law. And in many respects these elements underpin the issue of “the majesty of the law” as an aspect of the Rule of Law and which is used as a reason for applying the brakes to technological change.

Andrew Langdon as Chairman of the Bar in 2016 in his inaugural address made reference to the “majesty of the Court.

“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometime put, the “majesty” of the law. The historic prominence of a court building in the municipal setting demonstrates that our ancestors understood it also. Whereas no one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the Court are only in the virtual presence, rather than the actual presence of judicial authority.”[30]

Those who see the law and its administration as “majestic” and remote hearings as being an erosion of the “majesty of the law” need to give careful consideration to the purpose of the legal process. At the moment the court system is hard to understand, hard to access, marginalising for many and reserved for the few who can afford it. Coupled with that, it retains elements of kinetic presence and orality that have been part and parcel of the system since the Middle Ages.

One must add to this the fact that many of our Court buildings are anything but majestic, apart from the occasional imposing temples such as the United States Supreme Court building in Washington DC or the Supreme Court building in Wellington, New Zealand. By and large our Court buildings are shabby and run down. As Professor Susskind says “To celebrate our court buildings again runs the risk of lapsing into romantic transcendentalism.”[31]

Indeed, I would suggest that it is not “majesty” itself that is the fundamental value. It is not an intrinsic good, important for its own sake. Rather than a “majestic” system we want a system that is authoritative, respected and supportive of the principles of justice to which I have already referred.

Furthermore the system should be relevant and not detached from the mainstream lives of citizens. It should not be intimidating and should reflect modern standards and understandings. The court system should not exist as a majestic rarely used physical system, little understood and at the periphery of the lives of citizens. It should be effective, meaningful, authoritative, relevant, respected and understood as part of the mainstream of a society under the Rule of Law.

The use of cameras in Court have assisted in public education and have increased public awareness of the way in which the Court process operates and have not derogated from the solemnity of the Court as an institution nor its processes. The UK Supreme Court live streams its hearings and a similar proposal is in train for the New Zealand Supreme Court. Some Federal Appeal Courts in the US also live stream. The US Supreme Court needs to rethink its attitude to cameras in court.

Remote hearings will increase the necessary legitimacy to and confidence in the legal process by providing an effective additional means to access the justice system. The alternative is for litigants to migrate to other forms of private sector dispute resolution, simple because the State is failing in its duty to its citizens

Fundamental to the Rule of Law is an effective State provided mechanism for the resolution of disputes. An effective, popular, authoritative and respected Court system that embraces new communications technology to further its purpose should underpin and help maintain the Rule of Law.

The Comfort Zone

It is perhaps within the realm of cultural comfort that the innate conservatism of many lawyers lies. The mantra goes “this is the way that we have done things in the past and it has worked and there is no need to change.” This mantra, of course, ignores the fact that law and particularly the legal culture associated with it does change albeit slowly and at times imperceptibly. In essence this mantra calls upon the traditions of law as a validation for continuing past practices. But tradition itself cannot act as a justification unless there is some rational basis for its continuation. And the problem with tradition is that is is constantly facing the winds of change and the dynamic of the human condition.

I have already commented on the role of the printing press – the first information technology – and its dynamic impact on legal culture. The shift from an understanding of the underlying communicative qualities[32] of the printing press, although recognized by some legislators such as Thomas Cromwell and by those who wished to advance a particular view of the law such as Sir Edward Coke, to a positive cultural shift in the recognition of the fact that the fixity of print and its incorporation in a book enabled the certainty that the law demanded along with its authoritativeness took some 284 years from the publication of Littleton’s Tenures in 1481 to the dictum of Lord Camden in Entick v Carrington.

There were other dynamics in the law. The development of the adversarial criminal trial with counsel playing a part provides an example. The evolution of the criminal trial from a lawyer free to a lawyer dominated model and the slow recognition that there was a taxonomy of types of evidence developed over a period of a century from the 1690’s when counsel were permitted in Treason trials to the 1730’s when judges allowed counsel to cross-examine witnesses to the greater involvement of counsel in arguing points of law by the 1780’s.[33] It may be surprising to some that the criminal trial process is a relative novelty when one considers the reach and scope of legal history.

There are other examples of dynamic change in the law and in legal processes. In my years of practice I have seen the Criminal Justice Act 1954, the Criminal Justice Act 1985 and the Sentencing Act 2002 along with the Criminal Procedure Act 2011 all of which introduced significant changes in criminal procedure. These were not opposed or decried because they challenged “the way we have always done things”.

There have been other examples of the dynamic in legal culture. One example may be seen in the abandonment in New Zealand of the need to wear wigs and gowns in the Senior Courts. Wigs and gowns are now retained only for ceremonial occasions, vested as they are with calls upon professional traditions. Yet the move for change was met with considerable protest, and is still decried by some traditionalists. Now only a black gown is worn in the Senior Courts and in the District Court for criminal jury trials.

The dynamic has reached the Judiciary. Imperceptibly and certainly without wide debate, although I imagine there were some terse exchanges in Senior Court common rooms, the formal ceremonial red robes of Her Majesty’s Judges has given way to a black gown with a motif panel upon it and the full bottomed wig, harking back to Restoration days, has been consigned to the cupboard.

Yet I suggest that what I call cultural comfort or continuing to do things in a particular way because that is the way that they have been done underpins much of the resistance to procedural change in the way in which cases are presented in Court. I further suggest that the elements of the Rule of Law that allow for transparency and public performance do not require the symbolic elements of the quasi-religious temples of justice nor can their continued use to the exclusion of other alternative means of delivering justice be justified on what is a self-perpetuating representation and imagery of what the Rule of Law is imagined to be.

How Culture Changes With Technology

In this section I shall argue that new technologies may act as drivers or agents of change in behaviour, values and culture. I shall propose that the pace of change has accelerated and indeed in terms of communications technologies, the digital revolution has ushered in a new communications paradigm – the Digital Paradigm.

Paradigmatic Change

I have suggested elsewhere that digital communications systems have resulted in a paradigm shift in the way in which we communicate and in our responses to and expectations of information. This arises from the significant properties that digital communications systems bring to bear and how they enable the differing views that we have of the communication of information.[34]

Changes in Behaviour

Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us” pithily sums up the way in which our inventions and tools affect behaviour. Once the tool becomes a part of what we do it changes how we do it and in the long term may have an impact upon other aspects of our lives and ultimately our expectations and values.

In the past there has been a gradual progression of new communications media. The printing press was the first information technology and until the mechanisation of print was introduced, there were no major changes in the way in which the technology operated. The types of content that print produced expanded but the real “reach” of print became possible with industrial printing and much larger print runs than were possible with the hand operated press. The technology and its particular underlying properties, however, remained the same.

The next step on the communications media progression was the introduction of telegraph – the long distance transmission of text or symbols without the physical exchange of an object bearing the message. Semaphore, beacons and reflected light signals (heliograph) are forms of telegraphy but it was the use of electricity that enabled the development of telegraphy in the early nineteenth century as the next development in communications technologies. Telegraphy was followed by the telephone – another one to one technology that enabled communication by voice – wireless telegraphy in the 1880’s and from this communications innovation came radio and television in relatively rapid succession.

The time lapses between the introduction of these various technologies reduced considerably and the pace of change accelerated. But each technology was a discrete development. In addition, transmission of information required significant investment in infrastructure so that the deployment of capital intensive communications technologies such as radio or television was only possible by means of centralised organisations. In addition, there was no real convergence of technologies although television could be considered a form of radio with pictures. But it certainly became more than that.

Each of these communications technologies brought to the table a new set of characteristics or properties that modified those of earlier technologies or introduced new ones. The effect of this was that the expectations and behaviours surrounding information communication changed. Furthermore, the development of these various technologies meant that the range of means by which information could be acquired increased as well. But in terms of information flows, communication was virtually one way – from the originator of the information to the audience. Unless one was a member of a live radio or TV audience, participation in information flows and in the creations of information in response to that received was nil.

This has all changed with the development of the Internet and the various communications protocols that are “bolted” on to it. Effectively what has happened has been the convergence of communications technologies so that users may send and receive information from the one place, virtually at the same time in a seamless fashion.

I suggest that the new communications technologies that have become available on the mass market for mass consumption have resulted in changes in behaviour.

As behaviours change their validity becomes accepted as a norm and as an acceptable aspect of life. For many private conversations in a private setting via mobile phone are perfectly acceptable. There is an expectation that there will be an element of privacy accorded to such communications.

Indeed the mobile phone has drastically altered behaviour by virtue of the fact that it makes subscribers available 24/7. No longer are business communications restricted to the office setting and although this is seen as an added pressure of business it is accepted as a part of life in the Digital Paradigm.

The smart phone provides a smorgasbord of communications options in addition to voice communication. It enables text messaging, video messaging, access to the Internet and communication – both voice and video – by a number of apps that have been made available by third party developers.

Changes in Assumptions about Information

Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

In some respects the paradigm shift can be seen in an inter-generational context. Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm.[35] He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[36] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, Flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

Expectations of information

Along with intergenerational changes in assumptions about information, our expectations of information change as well and many of those expectations are based upon assumptions which are largely developed and perpetuated by digital natives.

One only has to consider the use of the phrase “for further information go to www…….” to understand that the information that has been presented is often not the full story, that there is another source for that information, that there is a greater volume of detail of information about the topic at that source and finally that everyone is going to be able to access that source. The source, of course, is Internet-based and so the expectation is that detailed information can be found on the Internet. The assumption that drives that expectation is that everyone has access to the Internet and despite the fact that Internet uptake in New Zealand is high we know that is not the case.

Another aspect of information expectation is that of immediacy. Exponential dissemination couple with searchability and retrievability make information almost instantly available. The ability that large segments of the population have to be able to fact-check on the spot means that we are reluctant to wait for the 6 O’clock news or the next edition of the newspaper. Indeed, with online versions of newspapers readily available the presence of the newspaper on the breakfast table has become redundant and is replaced by the iPad with access not to one newspaper but to thousands.

Our expectations of information are shaped, as McLuhan observed, by the very underlying qualities of the technology that we fail to understand or recognize because we are fascinated by and are continually seeking out content.

Information Expectations and the Courts in Covid 19

The Covid 19 crisis in New Zealand and indeed in many other countries forced Courts to examine how they communicated at a time of extreme social distancing and lockdown which restricted travel and availability of counsel and participants in Court proceedings. Audio Visual Link (AVL) appearances by prisoners in custodial remand had become routine following the introduction of the Courts (Remote Participation) Act 2010[37].

The technology that was available for AVL did not allow for multi-party participation and the Ministry of Justice had to move swiftly to find some tool that could allow for virtual appearances. It was necessary to scale back the types of cases that could be heard during the most extreme phase of lockdown but the use of conferencing software enabled multi-party participation in those cases that were heard.

As the restrictions have eased the level of personal participation in Court proceedings has increased. It is still possible, and for many lawyers preferable, to appear remotely where that is appropriate.

A consideration of the information expectations that arose as a result of the use of remote technology for Court appearances demonstrate how information expectations morph into behavioural patterns.

  1. That it could be done in the first place
  2. That, apart from some initial technical difficulties, it provided workable solution
  3. That it enabled a court appearance without the necessity for travel to and from Court
  4. That it enabled a number of court appearances in sequence and by appointment that might have taken a considerable amount of travel time to accomplish were they to have been in person
  5. That in between virtual or remote appearances there were opportunities to attend to other work thus maximizing productive time
  6. Importantly that a remote appearance did not do violence to the Court process or to other aspects of the Rule of Law

The wider use of remote technology developed within an existing legal and statutory framework that gave it legitimacy but was accelerated and indeed proven effective by a crisis.

Although this cannot be said to be a perfect means for introducing technological change it was necessary for the continuing function of the Courts. The duration of the lockdown and Alert Levels in New Zealand have not allowed for the use of remote technologies to become firmly embedded in the process and it is a matter of regret for some that the Heads of Bench prefer a move back to “in person” appearances when the requirements of Alert Level allow it.

This challenges the expectations that many lawyers have developed around the use and effectiveness of remote court technologies and will be seen as many as a retrograde step that ignores the way in which the effective communication of information in the Court process may develop, notwithstanding statutory provisions to the contrary.

Final Thoughts on Cultural Change

In the conclusion to my book Collisions in the Digital Paradigm I made the following observations.

“Digital information systems have revolutionised our approaches to information in all its aspects. This revolution has ushered in a paradigmatic change in the way in which we communicate and deal with information. This has had an impact upon law and upon lawyers.

Legislators, wedded to a process that is by its very nature deliberate and deliberative, struggle to make rules that are applicable for the foreseeable future. The problem with that this process is that it collides with continuing disruptive change and a society the dynamic of which is in a continuing state of flux as the next new “new thing” comes along. And change is incredibly fast. Facebook was founded in 2004. [Sixteen] years later it has become almost the “establishment” of social media platforms.

Judges develop rules on a case by case basis while, on occasion, developing broad principles applicable to certain type of activity. There are a number of limitations to the judicial process in developing rules for a rapidly developing paradigm. One is that cases are decided upon the evidence that is available – within the parameters of the pleadings, issues and argument. And on occasion that evidence may be limited, incomplete or misunderstood. Another limitation lies in the judicial process and the care that must be employed in ensuring that the examples and illustrations used in judicial reasoning are applicable and appropriate. A third lies in the fact that cases decided about one technology may not be applicable to another. And then there is the problem of too much information which may obstruct the development of principle based precedent.

For lawyers, for whom information rather than time is stock-in-trade, the new paradigm has been challenging. But on the positive side lawyers have available more information, more means of communicating more quickly, more opportunities to enhance workflow methods, to automate the standard and repetitive tasks so that they may focus upon the areas of work that require the delicate, specialist, case specific approaches to client problems, to obtain information from a myriad of alternative sources and to communicate that information along the various flow paths to clients, to colleagues and to courts as the case may be. And one of the stunning successes that has been achieved by lawyers and rule makers in the law and technology field has been the development of e-discovery rules. Technology has not only driven change. It has, in some jurisdictions, been the catalyst for innovative approaches to fundamental discovery principles.

Technology is not the master. It is a servant. But as the printing press was described as an agent of change in the early-modern period, so the development of information technologies based on digital systems are agents of change. I suggest that the agency is perhaps more powerful than that of the printing press, simply because the qualities that underlie digital systems and that acts as enablers of behaviour are more powerful than those of print.

The pervasive way in which digital technologies have inserted themselves into our lives means that their influence, although obvious in some contexts, will be more nuanced in others. The influence of technology on behavioural norms and the values that accompany new behaviours and that underpin law is a continuing story and will be for some time. The long-term impact of the Digital Paradigm may be much wider than we may think at present.

When I looked at the changes that took place when lawyers encountered the first information technology – the printing press – I noted that change was gradual, incremental and slowly progressive, marked by co-existence with earlier information systems. Certainly co-existence of technologies is still a reality. As I looked out over my Law and IT class, among the host of laptops were students still employing scribal note-taking techniques that were used before the advent of print.

But unlike the early-modern period the pace of change in the new millennium has been infinitely faster and many lawyers have adopted and deployed new technologies with enthusiasm. These practitioners are probably the exception for lawyers and judges are not renowned for technological enthusiasm and technology driven innovation.

But if law and rule making in the digital paradigm is going to develop properly – at both the legislative and judicial level – there must be a proper understanding not only of what the technology can do but how it does it and the way in which the properties of digital technologies impact upon our pre-conceived understanding of information and its use. The message is in the medium and it is the medium – the technology – that must be understood. And care must be taken not to obstruct the potential and the opportunities that the technology may make available for society.

As with an understanding of technology so a recognition of the benefits that technology may bring to the table not only of substantive law but of the Rule of Law itself. Perhaps one of the most encouraging developments in the law and technology field is that of the moves towards on-line systems to enable citizens to seek remedies to which they may not otherwise have available as a result of cost, location or a lack of understanding. The development of on-line dispute resolution using technology – be it by means of private arbitration or mediation or by the provision of on-line courts by the State – may well revolutionise our understanding of access to justice and become the high point of technology use in the law.”

Recognising Cultural Artifacts.

The development of remote working within Court was, as I have observed, born out of necessity although it was foreshadowed as long ago as 2010. As I have demonstrated in this paper, many of the important and significant aspects of the Court within the legal structure do not depend upon imagery and symbols, upon building and icons, upon physical presence and performance. These are cultural artifacts that are unnecessary to the proper performance of the Court as a manifestation of an ordered society under the Rule of Law

In saying this I do not understate the vital importance of the function of the Court in society rather than as a symbol. The Court must continue to be seen as a place of resort for citizens – the alternative to the rule of the mob or the rule of the vigilante. In many respects the Rule of Law survives, although as we have seen in recent riots around the world the veneer of civilized behaviour is thin, because the alternative is too awful to contemplate. Yet it must be a matter of concern that there are occasions when mass behaviour renders the Rule of Law, adherence to the law and its enforcement powerless – an outcome which although rejected by politicians is, by their inaction, condoned.

The Rule of Law, in addition to those matters identified by the Chief Justice, requires acceptance. Acceptance is demonstrated by a recognition that it is the Court that will achieve adherence to the law by ensuring just processes and outcomes. Acceptance is critical, as is the case with all systems of authority, lest it become a tyranny. And in doing so the Court must employ systems that are apposite, understandable and relevant. For the new generation of Digital Natives, the rejection by the Justice System of means of communication and information sharing that are part and parcel of their paradigm will render that system quaint, old fashioned, out of date and irrelevant to their needs and expectations of how an information sharing system should work.

In saying this I do not for one moment propose nor indeed suggest that the justice system is perfect. It is, after all, a human construct, despite all the mythology, iconography, tradition and symbolism. I am not one of those transcendentalists who set their sights on an idealized concept of a just court service.

Rather I consider Voltaire’s observation that “the best is the enemy of the good” – what Professor Susskind refers to as Voltaire’s Riposte – as applicable to the way that we develop Court processes. Susskind uses Voltaire’s Riposte in the context of online courts.[38] I shall apply it to remote court hearings. Although a remote appearances may have some drawbacks, they will amount to an improvement on a system that struggles to properly schedule and dispose of cases in a manner that is suitable to participants. Remote working means that there may be participation without the attendant logistics of attending a centrally located building

Remote working will also provide a satisfactory means by which there will be better access to the services that the Court provides and that presently require the disincentive of personal appearance with all its attendant difficulties.

The Courts can be improved and it is conceded that remote working is not going to make our Court system the best. But it will enhance the Court system by making it better than it is at the moment, thus maintaining what is good but recognizing that the best is unattainable. Consistent with Voltaire’s Riposte remote working opens a new way of working which must be better than the old.

Conclusion

In this paper I have advocated the use of technology in the Courts to provide an alternative way of allowing appearances at Court. I have not gone so far as to advocate an Online Court. That is for the future.

Remote working is authorized by statute and the technology for it is available. It conforms with some of the fundamental procedural requirements that underpin our perceptions of the Rule of Law.

I have been critical of the support for maintaining present Court practices to the exclusion of alternatives. I make no apology for that stance. I fail to see how appeals to tradition and a reliance upon a form of cultural mythology about the “majesty of the law” can exclude the use of systems that demonstrably enhance the way that the law can work and be effective, can be meaningful and can be relevant.

I do not suggest for one moment that remote working should be used for criminal jury trials. There is limited provision for its use in Judge Alone criminal trials. There will be other processes where it will not be useful or apposite. But those occasional circumstances should not dictate that remote working has absolutely no place in the Court system.

Rather I advocate that it is one of the smorgasbord of technological communications tools that is available for a system that depends upon the effective communication of information.


[1] Dame Helen Winkelmann “A Framework for the future; Technology and the Rule of Law”, delivered to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020 

[2] Dame Helen Winkelmann ““Bringing the Defendant Back into the Room” Criminal Bar Association Keynote Address 3 August 2019 https://www.courtsofnz.govt.nz/assets/speechpapers/Keynote-speech-Annual-CBA.pdf (last accessed 11 June 2020)

[3] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 194.

[4] The audio is still available from the website of the 9th Circuit http://cdn.ca9.uscourts.gov/datastore/media/2017/02/07/17-35105.mp3 (last accessed 15 March 2017)

[5] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 203

[6] https://www.youtube.com/watch?v=sbqHG1m4alE&list=PLNaT-ciUkjcf5ii_CSGP8BleRpTOiVkkv (last accessed 5 June 2020)

[7] https://live.nzso.co.nz/

[8] Given that historically clerics comprised a large part of what could be considered the medieval legal profession, some might think that apart from secularization, not a lot has changed.

[9] Lambie and Hyland “The Opportunity of a Lifetime” [2019] NZLJ at 223.

[10] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020 reported in Legal Futures 4 June 2020 https://www.legalfutures.co.uk/latest-news/remote-hearings-can-deal-with-credibility-issues (last accessed 5 June 2020

Giving evidence before the House of Lords Constitutional Committee, Professor Richard Susskind observed that people should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake. He stated that lawyers from around the world reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom. The difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.”

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

[11] For a discussion of the nature of the confrontation right and the issues of presence see David Harvey Collisios in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) p, 213 – 214. I argue that our view of the “confrontation right” is based on faulty premises about its historical background. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand the presence of an accused and witnesses is statutorily enshrined both in the New Zealand Bill of Rights Act 1990 (s. 25(e) )and in the Evidence Act 2006.(s. 83(1)).

[12] Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 and Ian Lambie and Olivia Hyland “I am more than a piece of paper” [2019] NZLJ 297.

[13] Andrew Langdon Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020)

[14] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020

[15] A proposition put by Andrew Langdon QC in his Inaugural Address

[16] See in particular Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith   ”Juror Assessment of Veracity, Deception, and Credibility,” (2002) 4 Communication LR 45 http://commlawreview.org/Archives/v4i1/Juror%20Assessment%20of%20Veracity.pdf (last accessed 18  August 2014) See also David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2019) Chapter 8 p. 211 et seq

[17] [1765] EWHC KB J98

[18] David Nelken ‘Using the Concept of Legal Culture’, (2004) Australian Journal of Legal Philosophy 29: I-26

[19] F Lederer “The Courtroom as a Stop on the Information Superhighway” (1997) 4 Aust Jnl L Reform 71.

[20] The smaller and more routine legal disputes were conducted in the manorial courts or before Justices of the Peace. Michael Dalton’s The Countrey Justice (Adam Islip for the Stationers, London,1614) was a handbook for the standard procedures that Dalton saw as critical to the proper running of such Courts.

[21] The Court of Star Chamber was a Court that did much of its business from written material rather than emphasizing the oral processes that were a feature of the Royal Courts, but Star Chamber met its demise in 1642 and the Royal Courts assumed the dominant position still with their focus primarily on oral argument.

[22] For a discussion of the impact of the printing press on law and legal culture see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014)

[23] For a very detailed study of the management of image by the Tudors and Stuarts see Kevin Sharpe Selling the Tudor Monarchy (Yale University Press, New Haven 2009) Image Wars: Promoting Kings and Commonwealths in England 1603 – 1660 (Yale University Press, New Haven 2010) and Rebranding Rule: The Restoration and Revolution Monarchy 1660 – 1714 (Yale University Press, New Haven 2013).

[24] More frequently seen in representations after the introduction of the printing press.

[25] For a detailed discussion of the iconography and representations of justice in architecture see Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) Their principal thesis is that ‘the forms in which governments represent themselves provide windows into their aspirations. For further reading see David DesBaillets “Representing Canadian Justice: legal iconography and symbolism in the Supreme Court of Canada” (2018) 14 International Jnl of Law in Context 132 – 156 available online at https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/representing-canadian-justice-legal-iconography-and-symbolism-at-the-supreme-court-of-canada/75886182BB2B238C0E79B8C61861A819/core-reader (last accessed 6 June 2020)

[26] The design of the New Zealand Supreme Court Building is imposing and architecturally unique, especially in its design of the Courtroom but consciously adopts motifs and styles reflecting the multi-cultural community of New Zealand. Nevertheless the motif of the pillars as the supporters of the structure of justice, together with a more localized type of entablature rather than a traditional or classical one are present in the New Zealand Supreme Court building.

[27] Turkuler Israel “Review: Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms” (2013) 12 Contemporary Political Theory p. e.10 – e.13

[28] The use of powerpoint or presentation software is an example of innovation in advocacy, although one that was initially contentious – see R v Haanstra HC Wellington T1155/00, 16 November 2000; R v D CA80/04 8 December 2004; R v Harriman HC Auckland CRI-2005-004-14921, 15 December 2006; R v Tukuafu [2003] 1 NZLR 659 (CA).

The use of electronic bundles is another innovation although the protocols require an approach that is imitative of the hardcopy Eastlight folders. See Senior Courts Civil Electronic Document Protocol 2019 https://www.courtsofnz.govt.nz/assets/going-to-court/practice-directions/practice-notes/all-benches/scced_0.pdf (last accessed 14 June 2020).

[29] Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) p. 339.

[30] Andrew Langdon QC Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020

[31] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 208.

[32] For a full discussion see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014) and for the qualities of the printing press Elizabeth Eisenstein The Printing Press as an Agent of Change (1 Vol) (Cambridge university Press, Cambridge 1980) esp at chapter 2 page 43 et seq

[33] See John Langbein The Origins of Adversary Criminal Trial (Oxford University Press, Oxford 2003)

[34] The argument is developed in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at Chapter 2. I identify a taxonomy of 13 qualities which dramatically, paradigmatically, differ digital technologies from those that have gone before. The taxonomy for these qualities suggests three major classifications based upon the nature of the qualities. These classifications I have described as “Environmental”, “Technical” and “User Associated.”

The environmental qualities relate to change and the drivers for change. They are continuing disruptive change and permissionless innovation. The technical qualities are underlying aspects of the way in which Digital Communications Technologies, and especially the Internet, work. They are delineaisation of information, information persistence or endurance, dynamic information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence. The final set of the three categories of qualities – user associated qualities – involve the way in which digital technologies provide opportunities for users to locate, acquire and process information The first three qualities, which I have grouped together because they represent a continuum, perhaps are indicative of the nature of a cross-over between what could be considered technical qualities – something inherent in the technology – and qualities that are primarily user focussed. The final quality relates to the way in which the Digital Paradigm enables information creation in a multi-authorial sense. They are the availability, searchability and retrievability of information, participation and interactivity

[35] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf ; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf   (last accessed 23 February 2012). 

For a brief introduction to the development of Prensky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012).

[36] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover Paratexts (1992) 44 Stanford Law Review 509.

[37] Section 8 of the Courts (Remote Participation) Act 2010 mandates the use of AVL in criminal procedural matters where that technology is available and the participant is in custody unless a Judge or Registrar determines otherwise. However, protocols issued by the various Heads of Bench have mandated a return to the “in person” model and indeed run counter to the position mandated by statute.

[38] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford 2019) p. 182 et seq.

Covid 19 and the Future: Utopia or Dystopia

Once again an article by Simon Wilson has piqued my interest. In my post “The Culture of Idealised Individualism” I ventured to suggest that he is a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly, I said, much of his thinking is left of centre. And as I emphasized in that post this is still a democracy and he is entitled to his opinion and to express it. He has a soap-box in the form of the NZ Herald. I have this blog with a rather less extensive reach. Yet Mr. Wilson recently put forward certain arguments and propositions that should be answered or challenged.

Mr Wilson’s piece in the NZ Herald for 5 May 2020 is entitled “Covid 19 Coronavirus: Simon Wilson: Is this the death of neoliberalism?” It is an interesting piece but is primarily a paean against a rather ill-defined view of neo-liberalism with a hope for some utopian collectivist future – a better society – under a benevolent Government that will look after our every need.

Allow me to unpick a few things. First, in the preceding paragraph I used the word “utopian”. The meaning usually ascribed to that word is an imaginary place or commonwealth, enjoying a perfect social, legal, and political system and depicted in a book in 1516 by Sir Thomas More.

Wilson’s words

“What we are doing now has the makings of a great achievement of civilisation. Those societies that get their pandemic response right have the chance to become more resilient, less burdened by their current failings, better able to face the next crisis and the next”

sound like a search for Utopia.

But was More’s Utopia a perfect society? Did he intend it to be a blueprint for an ideal commonwealth? Quite the contrary. More was a lawyer, and one of the skills that he learned at the Inns of Court – the training ground for members of the legal profession – was case putting. Case putting was a form of argument that was employed when one wanted to demonstrate the futility or impossibility of a certain proposition. It is a form of demonstrative oratory – one of the tools of rhetoric.

More demonstrated that his Utopia was not possible by the use of irony and ambivalence. “Utopia” from the Greek means “no place” – rather like Samuel Butler’s “Erewhon” which, of course, is “nowhere” spelled backwards

Behind what is ostensibly a serious text is satire. Ruskin considered it one of the most really mischievous books ever written and Erasmus, a contemporary and correspondent of More, suggested that one should read it if one wanted to laugh. A perfect society? I don’t think so.

But – and this is my second point – the word Utopia provides us with another – an opposite – and that is the word “dystopia” or, as John Stuart Mill put it, “too bad to be practicable.”

The word is frequently used in speculative fiction describing not a world we should not like to live in but rather one that we should avoid.

Mr. Wilson refers to the concept of dystopia in his article, quoting a libertarian MP at Westminster who suggested that a bill being introduced implemented a dystopian society. He went on to argue that in fact the measures being implemented are anything but that and that steps that are being taken are to build a better society. He suggests that New York is an example of dystopia.

Mr. Wilson is incorrect. The society in which we would rather not live has been forced upon us. The spread of a virulent disease, the illness and sudden deaths of many victims, the stress on public health systems, the disruption of movement, the interference with trade, the closure of borders all are aspects of a dystopian world.

And the unprecedented intrusion of the State into the lives of citizens, the prohibitions on freedom of movement and assembly, the indirect demeaning of any criticism or questioning all are examples of a society in which we would rather not live.

We are in a dystopia. Who really wants to live in this locked-down or partially locked-down world? We have been gradually sliding into dystopia since Covid 19 spread from its source to infect the world.

The dystopia is going to continue. The free society that we have enjoyed has come to an end. It is unlikely to return in an instantly recognizable form.

It has been frequently observed throughout this crisis that the Government has interfered with civil liberties and the ordinary lives of New Zealanders to an extent not seen since World War II – in fact I would probably suggest that the 1951 Waterfront Crisis with the invocation of the Public Safety Conservation Act (now fortunately repealed) was probably a more recent serious interference with civil liberties.

Dystopia not only encompasses unpalatable social situations. A reading of many of the science and speculative fiction works on the topic present a number of scenarios. One, favoured by Orwell (“1984”), Robert Heinlein (“Revolt in 2100”), Margaret Attwood (“The Handmaids Tale”), Ray Bradbury(“Fahrenheit 451”), and Aldous Huxley (“Brave New World”) suggest a political dystopia.

Film has also presented some graphic portrayals of dystopian societies. Based on the novels of Phillip K Dick “Bladerunner” and “Minority Report” are two examples.

“Soylent Green” based on Harry Harrison’s “Make Room, Make Room” propounded a society that literally fed on itself as the oceans died. There were disturbing aspects of voluntary euthanasia with rather ghastly consequences that made for a shocking climax.

“Logans Run” which propounded that everyone over 30 was a burden and therefore should be eliminated was very eerie, made more so by the initial panic over the risk of Covid-19 to those of us over 70 – as if we couldn’t assess the risk ourselves.

Ours is not as bad as these imagined dystopias but compared with the life that we enjoyed, the freedoms that we had and the relatively light hand of the State on our affairs, what we are in now is certainly dystopic.

I do not share Mr Wilson’s optimism that this is going to herald a new and better society. I see a continuing dystopia of increasing State interference in the lives of citizens, more State control over and limitations upon the freedoms that we have taken for granted for so long.

The main point of Mr. Wilson’s article is to trumpet the end of neo-liberalism although, as I have said, he doesn’t clearly define what he means. Roughly defined it means a modified form of liberalism tending to favour free market capitalism. Presumably he is calling for a return to greater State control of the economy and in the lives of citizens, citing the rush of corporates to the Government for assistance.

Certainly in this crisis the Government has a role. But let us not forget the purpose of the Government. It is to serve the people, not to control them. The people of Government are not called “public servants” for nothing.

The Government exists to protect the rights of the people, and to provide for their protection from foreign and domestic threats, to provide for the protection of their persons and property by a defined and clear Rule of Law framework and to allow individuals to choose for themselves how they will live their lives within the law both socially and economically. The role of the Government is therefore very limited and certainly not extensive.

At the moment the involvement of the Government in the lives of its citizens is highly invasive – reminiscent of a dystopia – and  the current situation will extend into Alert Level 2. And how long will that last? How long will we be subjected to decrees and proclamations from bureaucrats in Wellington? Do we really need to be patted on the head and told how good we have been by those who are meant to serve us? Do we really need to be told that because of the idiocy of the few all of us may suffer restrictions. That sounds like patronising school teacher-speak to me.

So how long will it be?  Until we get a vaccine? Or some other equally distant event? By the time we finally emerge into Alert Level 0 – if we ever do – the population will be so habituated to the 1:00 pm update that free will and freedom of choice will have vanished.

It will be the Government who will be telling us how to live our lives – as I said in an earlier post

“what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.”

I am sure that this is not the result that Mr Wilson wants. Nor do I believe, in his heart of hearts that he wants to see an end of freedom of enterprise, individual initiative, individual thinking and innovation and all the other aspects of a free and open society – especially the freedoms that he enjoys as a journalist to question authority and to speak truth to power.

It may be that the Government can provide, during this crisis, some direction. But it should have an exit strategy – mainly for itself. And we should know now what that exit strategy is. The resources that the Government has deployed should be viewed as temporary only – not as some initial investment with a view to maintaining control long after the crisis is over.

Mr Wilson’s rosy view of the future – of the opportunity that Covid 19 has presented – sounds hopeful on the surface – Utopian almost. But as we now know Utopia is an illusion.

The collectivist solution proposed by Mr Wilson, with its reduced focus upon the individual and an overly regulated and directed society – both politically and economically – is, to those who value liberty, initiative, innovation and individualism, a recipe for a continued dystopia.

Lessons Unlearned

The Christchurch Call was a meeting co-hosted by New Zealand’s Prime Minister, Jacinda Ardern and French President, Emmanuel Macron, held in Paris on 15 May 2019. It’s a global call which aims to “bring together countries and tech companies in an attempt to bring to an end the ability to use social media to organise and promote terrorism and violent extremism.”[1]It is intended to be an ongoing process.

This piece was written at the end of last year and for one reason or another – and primarily the Covid-19 crisis – has languished. I post it now as the first anniversary of the Call approaches. The overall context is that of Internet Regulation – content or technology – and the difficulties that presents.

Introduction

The Christchurch Call is not the first attempt to regulate or control Internet based content. It will not be the last. And, despite its aim to reduce or eliminate the use of social media to organize and promote terrorism and violent extremism, it carries within it the seeds of its own downfall. The reason is, like so many efforts before it, the target of the Christchurch Call is content rather than technology.

Calls to regulate content and access to it have been around since the Internet went public.

The Christchurch Call is eerily familiar, not because of what motivated and inspired it, but because it represents an effort by Governments and States to address perceived problems posed by Internet based content.

In 2011 a similar effort was led by then French President Nicholas Sarkozy at the economic summit at Deauville – is it a co-incidence that once again the French are leaders in this present initiative? So what was the Deauville initiative all about?

Deauville May 2011

The Background

In 2011 and 2012 there were renewed calls for greater regulation of the Internet. That these were driven by the events in the Middle East early in 2011 which became known as the “Arab Spring” seems more than coincidental. The “Arab Spring” is a term that refers to anti-government protests that spread across the Middle East. These followed a successful uprising in Tunisia against former leader Zine El Abidine Ben Ali which emboldened similar anti-government protests in a number of Arab countries. The protests were characterised by the extensive use of social media to organise gatherings and spread awareness. There has, however, been some debate about the influence of social media on the political activism of the Arab Spring. Some critics contend that digital technologies and other forms of communication — videos, cellular phones, blogs, photos and SMS messages— have brought about the concept of a “digital democracy” in parts of North Africa affected by the uprisings. Others have claimed that in order to understand the role of social media during the Arab Spring there is context of high rates of unemployment and corrupt political regimes which led to dissent movements within the region. There is certainly evidence of an increased uptake of Internet and social media usage over the period of the events, and during the uprising in Egypt; then President Mubarak’s State Security Investigations Service blocked access to Twitter and Facebook and on 27 January 2011 the Egyptian Government shut down the Internet in Egypt along with SMS messaging.

Sarkozy’s Initiative

In May 2011 at the first e-G8 Forum, before the G8 summit in France, President Nicolas Sarkozy issued a provocative call for stronger Internet regulation. Mr Sarkozy convened a special gathering of global “digerati” in Paris and called the rise of the Internet a “revolution” as significant as the age of exploration and the industrial revolution.

This revolution did not have a flag and Mr Sarkozy acknowledged that the Internet belonged to everyone, citing the Arab Spring as a positive example. However, he warned executives of Google, Facebook, Amazon and eBay who were present:

“The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”

Mr Sarkozy was not alone in calling existing laws and regulations inadequate to deal with the challenges of a borderless digital world. Prime Minister David Cameron of Britain stated that he would ask Parliament to review British privacy laws after Twitter users circumvented court orders preventing newspapers from publishing the names of public figures who are suspected of having had extramarital affairs, but he did not go as far as Mr Sarkozy who was pushing for a “civilized Internet” implying wide regulation.

However, the Deauville Communique did not extend as far as Mr Sarkozy may have liked. It affirmed the importance of intellectual property protection, the effective protection of personal data and individual privacy, security of networks, and a crackdown on trafficking in children for sexual exploitation; however it did not advocate state control of the Internet but staked out a role for governments.

Deauville was not an end to the matter. The appetite for Internet regulation by domestic governments had just been whetted. This was demonstrated by the events at the ITU meeting in Dubai in 2012

The ITU meeting in Dubai December 2012

The meeting of the International Telecommunications Union (ITU) in Dubai provided the forum for further consideration of expanded Internet regulation. No less an authority than Vinton Cerf, the co-developer with Robert Kahn of the TCP/IP protocol which was one of the important technologies that made the Internet possible, sounded a warning when he said:

“But today, despite the significant positive impact of the Internet on the world’s economy, this amazing technology stands at a crossroads. The Internet’s success has generated a worrying desire by some countries’ governments to create new international rules that would jeopardize the network’s innovative evolution and its multi-faceted success.

This effort is manifesting itself in the UN General Assembly and at the International Telecommunication Union — the ITU — a United Nations organization that counts 193 countries as its members, each holding one vote. The ITU currently is conducting a review of the international agreements governing telecommunications and it aims to expand its regulatory authority to include the Internet at a treaty summit scheduled for December of this year in Dubai….”

Today, the ITU focuses on telecommunication networks, radio frequency allocation, and infrastructure development. But some powerful member countries saw an opportunity to create regulatory authority over the Internet. In June 2012, the Russian government stated its goal of establishing international control over the Internet through the ITU. Then, in September 2012, the Shanghai Cooperation Organization — which counts China, Russia, Tajikistan, and Uzbekistan among its members — submitted a proposal to the UN General Assembly for an “international Code of Conduct for Information Security.” The organization’s stated goal was to establish government-led “international norms and rules standardizing the behavior of countries concerning information and cyberspace.” Other proposals of a similar character have emerged from India and Brazil. And in an October 2010 meeting in Guadalajara, Mexico, the ITU itself adopted a specific proposal to “increase the role of ITU in Internet governance.”

As a result of these efforts, there was a strong possibility that the ITU would significantly amend the International Telecommunication Regulations — a multilateral treaty last revised in 1988 — in a way that authorizes increased ITU and member state control over the Internet. These proposals, if they had been implemented, would have changed the foundational structure of the Internet that has historically led to unprecedented worldwide innovation and economic growth.

What is the ITU?

The ITU, originally the International Telegraph Union, is a specialised agency of the United Nations and is responsible for issues concerning information and communication technologies. It was originally founded in 1865 and in the past has been concerned with technical communications issues such as standardisation of communications protocols (which was one of its original purposes), the management of the international radio-frequency spectrum and satellite orbit resources and the fostering of sustainable, affordable access to information and communication technology. It took its present name in 1934 and in 1947 became a specialised agency of the United Nations.

The position of the ITU approaching the 2012 meeting in Dubai was that, given the vast changes that had taken place in the world of telecommunications and information technologies, the International Telecommunications Regulations (ITR) that had been revised in 1988 were no longer in keeping with modern developments. Thus, the objective of the 2012 meeting was to revise the ITRs to suit the new age. After a controversial meeting in Dubai in December 2012, the Final Acts of the Conference were published. The controversial issue was that there was a proposal to redefine the Internet as a system of government-controlled, state-supervised networks. The proposal was contained in a leaked document by a group of members including Russia, China, Saudi Arabia, Algeria, Sudan, Egypt and the United Arab Emirates. However, the proposal was withdrawn. But the governance model defined the Internet as an “international conglomeration of interconnected telecommunication networks”, and that “Internet governance shall be effected through the development and application by governments” with member states having “the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance”.

This wide-ranging proposal went well beyond the traditional role of the ITU, and other members such as the United States, European countries, Australia, New Zealand and Japan insisted that the ITU treaty should apply to traditional telecommunications systems. The resolution that won majority support towards the end of the conference stated that the ITU’s leadership should “continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the Internet.”

However, the Treaty did not receive universal acclaim. United States Ambassador Kramer announced that the US would not be signing the new treaty. He was followed by the United Kingdom. Sweden said that it would need to consult with its capital (code in UN-speak for “not signing”). Canada, Poland, the Netherlands, Denmark, Kenya, New Zealand, Costa Rica, and the Czech Republic all made similar statements. In all, 89 countries signed while 55 did not.

From the Conference three different versions of political power vis-à-vis the Internet became clear. Cyber sovereignty states such as Russia, China and Saudi Arabia advocated that the mandate of the ITU be extended to include Internet governance issues. The United States and allied predominantly Western states were of the view that the current multi-stakeholder processes should remain in place. States such as Brazil, South Africa and Egypt rejected the concept of Internet censorship and closed networks but expressed concern at what appeared to be United States dominance of aspects of Internet management.

In 2014 at the NETmundial Conference the multi-stakeholder model was endorsed, recognising that the Internet was a global resource and should be managed in the public interest.

The Impact of International Internet Governance

Issues surrounding Internet Governance are important in this discussion because issues of Internet control will directly impact upon content delivery and will thus have an impact upon freedom of expression in its widest sense. 

Rules surrounding global media governance do not exist. The current model based on localised rule systems and the lack of harmonisation arise from differing cultural and social perceptions as to media content. Although the Internet- based technologies have the means to provide a level of technical regulation such as code itself, digital rights management and internet filtering, and the larger issue of control of the distribution system poses an entirely novel set of issues that have not been encountered by traditional localised print and broadcast systems.

The Internet separates the medium from the message and issues of Internet governance will have a significant impact upon the means and scope of content delivery. From the perspective of media freedom and freedom of expression, Internet governance is a matter that will require close attention. As matters stand at the moment the issue of who rules the channels of communication is a work in progress.

Quite clearly there is a considerable amount of concern about the way in which national governments wish to regulate, or in some way govern and control, the Internet. Although at first glance this may seem to be directed at the content of content passing through a new communications technology, the attempt to regulate through a technological forum such as the ITU clearly demonstrates that governments wish to control not only content but the various transmission and protocol layers of the Internet and possibly even the backbone itself. The Christchurch Call is merely a continuation of that desire by governments to regulate and control the Internet.

Resisting Regulation

The early history of the commercial Internet reveals a calculated effort to ensure that the new technology was not the subject of regulation. The Progress and Freedom Foundation, established in 1993, had an objective of ensuring that, unlike radio or television, the new medium would lie beyond the realm of government regulation. At a meeting in 1994, attended by futurists Alvin Toffler and Esther Dyson along with George Keyworth, President Reagan’s former science adviser, a Magna Carta for the Knowledge Age contended that although the industrial age may have required some form of regulation, the knowledge age did not. If there was to be an industrial policy for the knowledge age, it should focus on removing barriers to competition and massively deregulating the telecommunications and computing industries.

On 8 February 1996 the objectives of the Progress and Freedom Foundation became a reality when President Clinton signed the Telecommunications Act. This legislation effectively deregulated the entire communications industry, allowed for the subsequent consolidation of media companies and prohibiting regulation of the Internet. On the same day, as a statement of disapproval that the US government would even regulate by deregulating, John Perry Barlow released his Declaration of Independence of Cyberspace from the World Economic Forum in Davos, Switzerland.

Small wonder that the United States of America resists attempts at Internet regulation. But the problem is more significant than the will or lack of will to regulate. The problem lies within the technology itself and although efforts such as Deauville, Dubai, the NetMundial Conference and the Christchurch Call may focus on content, this is merely what Marshall McLuhan termed the meat that attracts the lazy dog of the mind. To regulate content requires an understanding and appreciation of some of the deeper aspects or qualities of the new communications technology. Once these are understood, the magnitude of the task becomes apparent and the practicality of effectively achieving regulation of communications runs up against the fundamental values of Western liberal democracies.

Permissionless Innovation

One characteristic of the Digital Paradigm is that of permissionless innovation. No approvals are need for developers to connect an application or a platform to the backbone of the Internet. All that is required is that the application comply with standards set by Internet engineers and essentially these standards ensure that an application will be compatible with Internet protocols.

No licences are required to connect an application. No regulatory approvals are needed. A business plan need not be submitted for bureaucratic fiat. Permissive innovation has been a characteristic of the Internet and it has allowed the Internet to grow. It allowed for the development of the Hypertext Transfer Protocol that allowed for the development of the World Wide Web – the most familiar aspect of the Internet today. It allowed for the development of a myriad of social media platforms. It co-exists with another quality of the Internet which is that of continuing disruptive change – the reality that the environment is not static and does not stand still.

Targetting the most popular social media platforms will only address a part of the problem. Permissionless innovation means that the leading platforms may modify their algorithms to try and capture extreme content but this is a less than subtle solution and is prone to the error of false positives.

Permissionless innovation and the ability to develop and continue to develop other social media platforms brings into play Michael Froomkin’s theory of regulatory arbitrage – where users will migrate to the environment that most suits them. Should the major players so regulate their platforms that desired aspects are no longer available, users may choose to use other platforms which will be more “user friendly” or attuned to their needs.

The question that arises from this aspect of the Digital Paradigm is how one regulates permissive innovation, given its critical position in the development of communications protocols. To constrain it, to tie it up in the red tape that accompanies broadcast licences and the like would strangle technological innovation, evolution and development. To interfere with permissionless innovation would strangle the continuing promise of the Internet as a developing communications medium.

Content Dynamics

An aspect of content on the Internet is what could be termed persistence of information. Once information reaches the Internet it is very difficult to remove it because it may spread through the vast network of computers that comprise the Internet and maybe retained on any one of the by the quality of exponential dissemination discussed below, despite the phenomenon of “link rot.”  It has been summed up in another way by the phrase “the document that does not die.” Although on occasions it may be difficult to locate information, the quality of information persistence means that it will be on the Internet somewhere.  This emphasises the quality of permanence of recorded information that has been a characteristic of that form of information ever since people started putting chisel to stone, wedge to clay or pen to papyrus.  Information persistence means that the information is there but if it has become difficult to locate,and  retrieving it may resemble the digital equivalent of an archaeological expedition, although the spade and trowel are replaced by the search engine.  The fact that information is persistent means that it is capable of location.

In some respects the dynamic nature of information challenges the concept of information persistence because digital content may change.  It could be argued that this seems to be more about the nature of content, but the technology itself underpins and facilitates this quality as it does with many others.

An example of dynamic information may be found in the on-line newspaper which may break a story at 10am, receive information on the topic by midday and by 1pm on the same day have modified the original story.  The static nature of print and the newspaper business model that it enabled meant that the news cycle ran from edition to edition. The dynamic quality of information in the Digital Paradigm means that the news cycle potentially may run on a 24 hour basis, with updates every five minutes.

Similarly, the ability that digital technologies have for contributing dialog on any topic enabled in many communication protocols, primarily as a result of Web 2.0, means that an initial statement may undergo a considerable amount of debate, discussion and dispute, resulting ultimately in change.  This dynamic nature of information challenges the permanence that one may expect from persistence and it is acknowledged immediately that there is a significant tension between the dynamic nature of digital information and the concept of the “document that does not die”.

Part of the dynamic of the digital environment is that information is copied when it is transmitted to a user’s computer.  Thus there is the potential for information to be other than static.  If I receive a digital copy I can make another copy of it or, alternatively, alter it and communicate the new version.  Reliance upon the print medium has been based upon the fact that every copy of a particular edition is identical until the next edition.  In the digital paradigm authors and publishers can control content from minute to minute.

In the digital environment individual users may modify information at a computer terminal to meet whatever need may be required.  In this respect the digital reader becomes something akin to a glossator of the scribal culture, the difference being that the original text vanishes and is replaced with the amended copy.  Thus one may, with reason, validly doubt the validity or authenticity of information as it is transmitted.

Let us assume for the moment that a content moderation policy by a search engine or a social media platform can be developed that will identify extreme content and return a “null” result. These policies will often if not always have identifiable gaps. If the policy relates to breaches of terms of use, how often are these breaches subject to human review which is often more nuanced than an algorithm. Often “coded language” may be used as alternatives to extreme content. Because of the context-specific nature of the coded language and the fact that it is not typically directed at a vulnerable group, targetted posts would in most instances not trigger social media platform content rules even if they were more systematically flagged. In addition the existence of “net centers” that coordinate attacks using hundreds of accounts result in broad dissemination of harmful posts which are harder to remove. Speech that is removed may be reposted using different accounts. Finally, content moderation policies of some social media providers do not provide a means for considering the status of the speaker in evaluating the harmful impact the speech may have, and it is widely recognized in the social science literature that speakers with authority have greater influence on behavior.

Exponential Dissemination

Dissemination was one of the leading qualities of print identified by Elizabeth Eisenstein in her study of the printing press as an agent of change, and it has been a characteristic of all information technologies since. What the internet and digital technologies enable is a form of dissemination that has two elements.

One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender. Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before. In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and samizdats but in these cases dissemination was very small. Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow  with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users. Indeed, news organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists. Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This in turn exacerbates the earlier quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.

It can be seen from this discussion that dissemination is not limited to the “on-line establishment” of Facebook, Twitter or Instagram, and trying the address the dissemination of extreme content by attacking it through ”established” platforms will not eliminate it – just slow down the dissemination process. It will present and obstruction as in fact on-line censorship is just that – an obstruction to the information flow on the Internet. It was John Gilmore who said The Net interprets censorship as damage and routes around it. Primarily because State-based censorship is based on a centralized model and the dissemination of information of the Internet is based upon a distributed one, effectively what happens on the Internet is content redistribution which is a reflection both of Gilmore’s adage and the quality of exponential dissemination.

The Dark Web

Finally there is the aspect of the Internet known as the Dark Web. If the searchable web comprises 10% of available Internet content there is content that is not amenable to search known as the Deep Web which encompasses sites such as LexisNexis and Westlaw if one seeks and example from the legal sphere.

The Deep Web is not the Dark Web. The Dark Web is altogether different. It is more difficult to reach than the surface or deep web, since it’s only accessible through special browsers such as the Tor browser. The dark web is the unregulated part of the internet. No organization, business or government is in charge of it or able to apply rules. This is exactly the reason why the dark web is commonly associated with illegal practices. It’s impossible to reach the dark web through a ‘normal’ browser, such as Google Chrome or Mozilla Firefox. Even in the Tor browser you won’t be able to find any ‘dark’ websites ending in .com or .org. Instead, URLs usually consist of a random mix of letters and numbers and end in .onion. Moreover, the URLs of websites on the dark net change regularly. If there are difficulties in regulating content via social media platforms, to do so via the Dark Web would be impossible. Yet it is within that environment that most of the extreme content may be found.

Effective Regulation

The Christchurch Call has had some very positive effects. It has drawn attention, yet again, to the problem of dissemination of extreme and terrorist content online. It should be remembered that this is not a new issue and has been in the sights of politicians since Deauville although in New Zealand, as far back as 1993, there were proposals to deal with the problems with the availability of pornography online.

Another positive outcome of the Christchurch Call has been to increase public awareness and corporate acceptance of the necessity for there to be some standards of global good citizenship on the part of large and highly profitable Internet based organisations. It is not enough for a company to have as its guiding light “do no evil” but more is required including steps to ensure that its service are not facilitating the doing of evil by others.

At the moment the Christchurch Call has adopted, at least in public, a velvet glove approach, although it is not hard to imagine that in some of the closed meetings the steel fist has been if not threatened at least uncovered. There are a number of ways that the large conglomerates might be persuaded to toe a more responsible line. One is to introduce the concept of an online duty of care as has been suggested in the United Kingdom. Although this sounds like a comfortable and simple concept, anyone who has spent some time studying the law of torts will understand that the duty of care is a highly nuanced and complex aspect of the law of obligations, and one which will require years of litigation and development before it achieves a satisfactory level of certainty.

Another way to have conglomerates toe the line is to increase the costs of doing business. Although it is in a different sphere – that of e-commerce – the recent requirement by the New Zealand Government upon overseas vendors to impose GST is an example, although I was highlighting this issue 20 years ago. Governments do not have a tendency to move fast although they do have a tendency to break things once the sleeping giant awakes.

Yet these various moves and others like them are really rather superficial and only scratch the surface of the content layer of the Internet. The question must be asked – how serious are the governments of the Christchurch Call in regulating not simply access to content by the means by which content is accessed – the technology.

The lessons of history give us some guidance. The introduction of the printing press into England was followed by 120 years of unsuccessful attempts to control the content of printed material. It was not until the Star Chamber Decrees of 1634 that the Stuart monarchy put in place some serious and far-reaching regulatory requirements to control not what was printed (although that too was the subject of the 1634 provisions) but how it was printed. The way in which the business and process of printing was regulated gave the State unprecedented control not only over content but by the means of production and dissemination of that content. The reaction against this – a process involving some many years – led to our present values that underpin freedom of the press and freedom of expression.

As new communications technologies have been developed the State has interested itself in imposing regulatory requirements. There is no permissionless innovation available in setting up a radio station or television network. The State has had a hand of varying degrees of heaviness throughout the development and availability of both these media. In 1966 there was a tremendous issue about whether or not a ship that was to be the platform for the unlicensed and therefore “pirate” radio station, Radio Hauraki would be allowed to sail. The State unsuccessfully tried to prevent this.

Once upon a time in New Zealand (and still in the United Kingdom) anyone who owned a television set had to pay a broadcasting fee. This ostensibly would be applied to the development of content but is indicative of the level of control that the State exerted. And it was not a form of content regulation. It was regulation that was applied to access to the technology.

More recently we are well aware of the so called “Great Firewall of China” – a massive state sponsored means of controlling the technology to proven access to content. And conglomerates such a Google have found that if they want to do business in China they must play by Chinese rules.

The advocacy of greater technological control has come from Russia, Brazil, India and some of the Arab countries. These States I think understand the import of McLuhan’s paradox of technology and content. The issue is whether or not the Christchurch Call is prepared to take that sort of radical step and proceed to consider technological regulation rather than step carefully around the edges of the problem.

Of course, one reason why at least some Western democracies would not wish to take such an extreme step lies in their reliance upon the Internet themselves as a means of doing business, be it by way of using the Internet for the collection of census data, for providing taxation services or online access to benefits and other government services. Indeed the use of the Internet by politicians who use their own form of argumentative speech has become the norm. Often, however, we find that the level of political debate is as banal and cliched as the platforms that are used to disseminate it. But to put it simply, where would politicians be in the second decade of the 21st Century without access to Facebook, Twitter or Instagram (or whatever new flavor of platform arises as a result of permissionless innovation).

Conclusion

I think it is safe to say that the Christchurch Call is no more and no less than a very well managed and promoted public relations exercise that is superficial and will have little long term impact. It will go down in history as part of a continuing story that really started with Deauville and continues and will continue to do so.

Only when Governments are prepared to learn and apply the lessons about the Internet and the way that it works will we see effective regulatory steps instituted.

And then, when that occurs, will we realise that democracy and the freedom that we have to hold and express our own opinions is really in trouble.


[1] Internet NZ “The Christchurch Call: helping important voices be heard” https://internetnz.nz/Christchurch-Call (Last accessed 2 January 2020)

Court Hearings and Covid-19 – Another View

Many of the concerns about the use of technology in Courts raised by Dr. James Farmer QC in his blogpost “Court Hearings and Covid-19” have been ventilated before. Rather like the Chief Justice his starting point is that technology compromises certain fundamentals that underpin our adversarial system.

The major premise of the post is that the use of virtual hearing technology – even if it were reliable which he claims it is not – is inherently unable to provide a top quality judicial process in certain categories of cases. Mr Farmer refers especially to lengthy complex trials, Court of Appeal Hearings and Supreme Court hearings.

His post notes that the Court of Appeal and Supreme Court issued a Remote Hearings Protocol providing for virtual hearings (Farmer uses the adjective euphemistically but the reason for that eludes me) Remote (or virtual) hearings are provided for during the various Alert levels and I recognise that this type of hearing will not be appropriate in all circumstances.

What critics fail to recognize when the issue of online courts or remote\virtual hearings is raised is that the proposals do not represent a shift away from what could be called the normal adversarial type of hearing. Rather, virtual or remote hearings provide another means by which justice may be delivered.

From the outset I agree, as I have said, that virtual or remote hearings may not be ideal for every type of case. But there are some cases for which they will be ideal. It is completely unnecessary for counsel to trail across town from their various offices to personally attend a pre-trial conference hearing. These have been done via teleconference for many years as Dr Farmer observes.

That the technology exists to allow a video appearance may enhance the process and allow for an additional nuance that is absence in a voice-only communication. That some attempts to engage in video conferences have encountered technological difficulties is to be expected in the early use of technology.

In my view the fact that Covid-19 has forced the Courts to utilize video technology more extensively beyond the use of the dedicated AVL system is an indictment upon lack of planning and innovation. These tools have been around for a while. They should have been deployed, used and had the rough spots smoothed long ere this.

The importance of process still remains in the virtual hearing. Although the participants may not be in the same physical or geographical location the hearing itself is centralized in that all parties can see one another and the exchanges that would take place in the same location still take place in the virtual space.

Openness is straight forward. Cases can be live streamed as was the case with the 9th Circuit Court of Appeals argument in State of Washington v Trump. In that case there was no courtroom. The judges were remotely located as were counsel. The audio of the argument was livestreamed. There were over 130,000 in the online audience – a few more than could sit in the courtroom in San Francisco. Similarly in New Zealand the arguments in the High Court in Ortmann v US – the Dotcom extradition case – were livestreamed on YouTube subject to certain directions from the Court. I think that we can safely say that there are technological solutions to preserve the openness of virtual hearings.

The importance of the “day in court” is present in the virtual hearing. Is it really necessary for all the parties and their witnesses to travel from their various geographical locations to a large, imposing and predominantly symbolic building, wait around for an ill-defined period of time to be heard.

The words “day in court” have become part of the popular lexicon but in fact represent another concept entirely and that is the wish, desire and indeed right of litigants to be HEARD. The importance of the day in court is the Court hearing – it is not called a hearing for nothing – and the words “Court hearing” in my view more correctly exemplify what the process is all about rather than the emotive use of the term “day in court”.

A further reality of the Court hearing is that what takes place is not an elegant forensic intellectual exercise, although it may be for some, but an process of information exchange and evaluation. In the final analysis that is what happens when client communications instructions, when a lawyer looks up a statute or a case, when that same lawyer provides advice to the client, when a lawyer files pleadings or submissions, adduces evidence from a witness or makes an argument in Court to the point when a Judge delivers a decision based on the information communicated.

In the past the nature of that process has been determined by the available technology. Pleadings were originally prepared by scribes but later were provided in typescript when the technology of the typewriter became available. Law reports did not exist until Plowden’s Commentaries in 1571 and before then the “reports” were handwritten notes circulated among coteries of lawyers. It took some time for reliable reports to be made available per medium the technology of the printing press. The photocopier has had an impact making it possible for multiple copies of papers to be provided along with voluminous attachments and cases, often to the dismay of the Judge. The mobile phone means that lawyers are available to clients 24/7 rather than Monday to Friday, 9 -5.

Yet despite the advances in communications technologies made available by developments in the Digital Paradigm, lawyers and judges seem unwilling to adopt and adapt to the new communications environment in the Court process and use new and innovative ways of doing what the job is all about – communicating information.

But in saying this I return to my major premise – not all cases are going to be amenable to virtual hearing tools.

There are some more fundamental issues that need to be considered – perhaps a little more significant than the image of the Court as a community centre or the idea that the only way we can achieve justice is by the physical presence of everyone in the same place at the same time.

The first – which has been highlighted by the Covid-19 crisis – is that of health, safety and associated with that, convenience.

Court houses are inherently unhealthy places to be – this before Covid-19. Large groups of people, many of whom are not able to afford medical care and may have communicable complaints or illnesses, are gathered together in waiting areas or courtrooms, counsel who must interview clients or take instructions in close quarters, jurors who are seated close to one another for extended periods of time – although I concede that jury trials of necessity must be in-person at this stage.

The convenience aspect, especially for busy lawyers in the District Court, has been exemplified by the use of remote hearings for administrative or routine matters which might earlier have required an appearance at several courts in, say, the Auckland region, but which can be dealt with expeditiously by a remote hearing where counsel does not have to leave the office. All “appearances” have been expeditiously completed in a morning – no travel involved.

A second aspect of the use of technology in Courts, highlighted by the Covid-19 crisis but not referred to by Dr Farmer, has been the development of ad hoc electronic filing solutions. I have referred to this in an earlier post.

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

As I have said, ad hoc e-filing solutions involving the use of attachments to emails, and, as proposed by the Defence Lawyers Association, the use of a dedicated email e-filing address, have been developed.

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offered in my previous post and which I repeat here is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

Caselines involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper or PDF files on USB sticks that accompany Court proceedings. Caselines enhances the gathering and production of evidence during the course of a hearing.

It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

A third aspect of virtual or online hearings is that of relevance to users. I have written on this aspect in an earlier post, but what I said then bears repeating.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19 and its aftermath which will be with us for some considerable time..

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot” or remaining wedded to archaic business models because they are what have been used is the past and fulfil some imagined level of near perfection.

We need to ensure:

a. Public confidence in the system; and

b. Associated with that a recognition that Courts are responding effectively to the crisis; and

c. That the solutions offered are relevant to present and future circumstances.

I shall expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants. 

Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants.

It may be considered laughable or at best quaint that the court should be a place where the requirement to be physically present for the disposal of court business, particularly when there are other communications systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant.

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts were closed to members of the public whose presence is not required for the business of the Court.

Covid 19 – whatever the Alert level – presents us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us in part to meet that challenge.

The tools and means are available. They can be added to and become part of the processes that are important in the justice system.

Digital Property Revisited

Preface

In Chapter 5 of my book “Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age” I discussed what I called the property problem and whether a digital file could amount to property. My main argument against such a proposition was based upon technological realities – digital material was paradigmatically different from earlier items or forms that could amount to property. It was a difficult position to sustain, especially in light of the decision of the New Zealand Supreme Court in Dixon v R.

I considered that the property problem was a true collision in the digital paradigm – a collision between accepted theory which had incrementally developed over the years and which had developed defining characteristics for items of property, and the technological realities of digital data.

Furthermore, the particular collision in the digital paradigm is that, with so much information being digitised – and important information at that – it may well be that current remedies for breach of confidence, copyright infringement and the like do not provide a sufficient remedy nor deterrent particularly when the behaviour is accompanied by clear instances of dishonesty associated with the appropriation of information which can be converted into something of value.  The difficulty is, as was observed in the case of Your Response Limited v Data Team Business Media Limited that the law of unintended consequences may come into play.

My view at the time was that the confluence of data on the one hand with information on the other placed the law in an invidious position. Data or electromagnetic impulses scattered across a medium could not be property although the “merger theory” utilised by US Courts seemed to provide a possible solution. I concluded Chapter 5 with the following observation

“The issue of virtual property remains an open question and much depends upon the nature of the terms and conditions that exist between the provider and the customer. It may be that legislation will address this problem in the future, recognising that in a paradigm of continuing disruptive change, changes to perceptions of whether what may fall within the category of intangibles may have value needs to be recognised along with a further recognition that existing remedies under “traditional”   fields of law such as intellectual property and breach of confidence may be too limited to accord sufficient protection. The concept of no property in pure information could remain. Information that is not associated with a medium could remain as intangible. But the digital file associated with a medium would have a level of tangibility sufficient to attract the protection of the civil and criminal law.”

The cases discussed in this paper seem to provide the pathway that I tentatively identified. Hence the title “Digital Property Revisited”.

.

Introduction

The Digital Paradigm poses challenges to existing legal concepts. One particular challenge has been whether or not a digital file may be considered property for legal purposes.

Recently the issue has been highlighted by cases involving two important property based issues. The first is whether or not a digital file – in the particular case the contents of a computer including emails – may be property for the purposes of conversion

The second is whether a cryptocurrency such as bitcoin can be property.

The “Property” Issue

Can computer files be property for the purposes of the exercise of a possessory lien or amount to property to sustain an action for conversion? There are diverging lines of authority. The English position is based upon the theory that computer files comprise information and that there can be no property in information.[1] The issue then becomes further complicated by the distinction between choses in possession and choses in action

The English Approach

In the case of OBG v Allen[2]  the House of Lords held that wrongful interference with contractual rights could not constitute the tort of conversion because the tort applied only to chattels and not to choses in action

The position was articulated by Lord Hoffman who pointed out that historically conversion was a tort against a person’s interest in a chattel and expressed the view[3] that the whole of the statutory modification of the law of conversion had proceeded on the assumption that the tort applies only to chattels. 

Although it was suggested by Lord Nicholls and Lady Hale that the tort of conversion should be extended to cover the appropriation of things in action Lord Brown rejected that proposition on the grounds that it would sever the link between the tort of conversion and the wrongful taking of physical possession of property.

OBG v Allan makes clear the sharp distinction in the common law between tangible and intangible property. The issue of tangibility is an important one in considering whether there may be a property right in information.  Information in and of itself has no tangibility at all. Information incorporated into a document is associated with a medium and in such a situation conversion could apply but it relates to the medium – the document – thereby creating an unlawful interference with a physical object to which a commercial value can be attached.  In contrast to chattels, choses in action are intangible things and incapable of the physical possession necessary to support a claim for conversion.

In England the case of Your Response Limited v Data Team Business Media Limited[4] developed the issue.

Rather than being considered within the context of a remedy for conversion the issue was whether or not a possessory lien could apply to a data base.  Data Team Business Media Limited carried on business as a data base manager. It offered customers the service of holding electronic data basis and amending them as required in order to ensure that the information contained was up to date.  In 2010 Your Response engaged Data Team to hold and maintain its data base of subscribers.

Following non-payment of fees Data Team refused to release the data base or give Your Response access to it until all outstanding fees were paid.  In the proceedings that followed the Judge at first instance held that the data manager, Data Team, was entitled to withhold the data until those fees were paid and rejected Your Response’s argument that the exercise of a lien was inconsistent with the terms of the contract and that it was not possible to exercise a lien over intangible property in this case the electronic data.

In his decision the Judge at first instance drew an analogy between information kept in hardcopy in the form of ledgers over which a book keeper could exercise control by means of physical possession and information kept in electronic form over which the data manager could exercise control by electronic means.

The Court of Appeal observed that the Judge had not had his attention drawn to the case of OBG Limited v Allen[5] and went on to consider the nature of a common law possessory lien, observing the possessory aspect of the remedy and the requirement for there to be actual possession of goods, requiring tangibility in contradistinction to a chose in action – essentially personal rights of property which could be claimed or enforced by action and not by taking physical possession.[6]

It was observed[7] that there are indications that information of the kind that makes up a data base – usually but not necessarily maintained in electronic form – if it constitutes property at all – does not constitute property of a kind that is susceptible of possession or of being the subject of the tort of conversion.  Under the provisions of the Copyright Designs and Patents Act 1988 (UK) the nature of protection accorded to the makers of data bases by that legislation reflects a recognition that data bases do not represent tangible property of a kind that is capable of forming the subject matter of torts concerned with the interference of possession.

Davis LJ observed[8] that the subtext of the argument on behalf of Data Team was that the courts should not leave the common law possessory lien stuck in its 18th and 19th century origins in developments but should go on to give it a 21st century application.  Although that appealed to modernism and had its attractions it should be resisted. Davis LJ observed that although that approach found favour with the minority in OBG v Allen it did not find favour with the majority. 

The second point made by Davis LJ was more far reaching. He observed that the law of unintended consequences is no part of the law of England and Wales but it is worth paying attention to it in the appropriate case.  He observed that if a common law possessory lien could arise in a case such as Your Response v Data Team it would be a right in rem and not a right in personam.   

Furthermore a right to such a possessory lien could have an impact upon creditors of the company and could confer rights in an insolvency which other creditors would not have.  In addition the possession of lenders could be affected and, given the number of IT companies and businesses, the impact of Data Team’s arguments, if accepted, could be significant.  Davis LJ also observed that if a data base is to be regarded as tangible property it may have implications for other areas of the law altogether for example, the law of theft (as contrasted with the legislation relating to misuse of computers). 

Davis LJ’s observations about unintended consequences found favour with Floyd LJ. He made the observation that an electronic data base consists of structured information which may give rise to intellectual property rights but again emphasised that the law had been reluctant to treat information itself as property.  He observed that when information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise.  Whilst the physical medium and the rights are treated as property the information itself never has been and to accept Data Team’s arguments would result in a fundamental change in the law.[9]

I have discussed Your Response in some detail because it is of significance when the position in New Zealand is considered to which I shall now turn.

The New Zealand Approach – Henderson v Walker

The case of Henderson v Walker[10] dealt with a number of issues following upon the liquidation of Property Venture Ltd of whom the Plaintiff was a director. The defendant was the liquidator of the company and other companies in the group. He was instrumental in the Police seeking and obtaining warrants to seize the records of the companies. The actions of the defendant following receipt of a tape drive and a laptop owned by the Company that was the subject of the case. In particular, there were concerns on the part of the plaintiff that the defendant, fuelled by malice, provided his personal information to the Inland Revenue Department, the Official Assignee and other third parties.

There were some six causes of action pleaded but for the purposes of this discussion only one – in conversion – is relevant. The question was whether or not certain computerised information contained in files and emails was property that could sustain an action in conversion.

Thomas J started by considering the traditional position, taking into account three elements

a)      Plaintiff must have an immediate right to the goods

b)      Defendant’s conduct must be deliberate

c)       Defendant’s conduct must be so extensive an encroachment on the     plaintiff’s right as to exclude him from use and possession of goods.

There was an assumption that the tort applied to personal tangible property. Possession – which underlies the tort – requires physical control and an intention to exclude. Because intangible property is not physical thus it cannot be physically controlled and therefore possessed.[11]

Your Response Rejected

At first blush it would appear that Your Response Ltd was directly on point and would dictate the outcome. That was not to be. Thomas J considered that much of the reasoning in Your Response was specific to the UK context noting that the NZ Courts are not bound by OBG v Allan and that there is no statute that alters the tort of conversion. On that basis it was open to the Court to depart from the UK position.

Thyroff v Nationwide Mutual Insurance Co

Thomas J then considered the US position, noting that the New York State Court of Appeals[12] had explicitly extended the tort of conversion at cover electronic records. That Court focused upon the so-called “merger doctrine” which the courts had developed to allow claims for the conversion of intangible property where that property was represented by a physical asset, such as a stock certificate.

The Court noted:

The merger rule reflected the concept that intangible property interests could be converted only by exercising dominion over the paper document that represented that interest (see Pierpoint v Hoyt, 260 NY at 29). Now, however, it is customary that stock ownership exclusively exists in electronic format. Because shares of stock can be transferred by mere computer entries, a thief can use a computer to access a person’s financial accounts and transfer the shares to an account controlled by the thief. Similarly, electronic documents and records stored on a computer can also be converted by simply pressing the delete button (cf. Kremen v Cohen, 337 F3d at 1034 [“It would be a curious jurisprudence that turned on the existence of a paper document rather than an electronic one. Torching a company’s file room would then be conversion while hacking into its mainframe and deleting its data would not” (emphasis omitted)]).

Furthermore, it generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value. A manuscript of a novel has the same value whether it is saved in a computer’s memory or printed on paper. So too, the information that Thyroff allegedly stored on his leased computers in the form of electronic records of customer contacts and related data has value to him regardless of whether the format in which the information was stored was tangible or intangible. In the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms – physical and virtual.

Unsurprisingly, given the direction of the discussion, it was clear that there were no New Zealand authorities on whether conversion extended to intangible property. There were, however, other cases where the issue of whether there was a property interest in a computer file had been considered. Thomas J referred to the case of Dixon v R.[13]

Dixon v R

Dixon centred around the use of a computer system to dishonestly obtain property – a digital file – in breach of section 249(1)(a) of the Crimes Act 1961 (NZ). In that case the Court of Appeal[14] held that a digital file cannot be property for the purposes of the criminal law. This finding depended upon the way in which various definitions contained in the Crimes Act coupled with the nature of the charge were interpreted by the court. The New Zealand Supreme Court reversed the Court of Appeal and adopted a different approach.

The facts of the case were that Mr Dixon had been employed by a security firm in Queenstown. One of the clients of the firm operated a bar in Queenstown and had installed a closed-circuit TV system in the bar. In September 2011 the English rugby team was touring New Zealand as part of the rugby world cup.  The captain of the team was a Mr Tindal who had recently married the Queen’s granddaughter. On 11 September 2011 Mr Tindal and several other members of the team visited the bar and there was an incident involving Mr Tindal and a female patron which was recorded on the CCTV system. 

Mr Dixon found out about the existence of the footage and asked one of the bar’s receptionists to download it onto a computer that was used at work. This was done under the impression that Mr Dixon required it for legitimate work purposes. The footage was located and saved onto the computer. Mr Dixon accessed the computer, located the relevant file and transferred it onto a USB stick belonging to him.

He then attempted to sell the footage but that proved to be unsuccessful and he posted it on a video sharing site, YouTube, resulting in a storm of publicity both in New Zealand and in the United Kingdom.

At his trial the Judge found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage.  A complaint was laid with the Police and Mr Dixon was charged under s 249(1)(a) of the New Zealand Crimes Act.[15] 

The charge against Mr Dixon alleged that he had access to computer system and thereby dishonestly and without claim of right obtained property – the video file. The issue before the court was whether or not that file and digital footage stored on a computer amounted to property as defined in the Crimes Act.

In its discussion the Supreme Court referred to both Your Response Ltd v Datateam Business Media Ltd and Thyroff v Nationwide Mutual Insurance Co, but did not find it necessary to consider either in any detail.

The Court also found it strictly unnecessary to determine whether digital files are intangible property or tangible property. The Court emphasised that the meaning of the word “property” varies with context. The Supreme Court noted

“… we have no doubt that the digital files at issue are property and not simply information. In summary, we consider that the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses…”[16]

Ortmann v US

The decision in Dixon was referred to in the case of Ortmann & Ors v United States.[17] In that case consideration was given to the identification of “pathway offences” for the purposes of extradition for what could broadly be described as commercial copyright infringement involving among other things films in digital format.

The Court considered whether Section 240 of the Crimes Act was available as a “pathway offence”. Section 240 creates the offence of obtaining or causing loss by deception. There are four circumstances in which the offence may occur, all of them requiring elements of deception on the part of the perpetrator together with an absence of claim of right.

It was conceded that the element of deception could be made out by virtue of false representations that were contained in emails. The element of obtaining was satisfied by the extended definition of obtaining which included retaining.

For the offence to be complete, property had to be obtained. Gilbert J held that the copyright protected films in digital file format were property and cited as authority the case of Dixon v R[18] – the decision of the Supreme Court.

In this commentator’s respectful view Gilbert J read Dixon more widely than was available to him. Dixon was a case that centred around whether or not a digital file was property for the purposes of section 249 of the Crimes Act. The Supreme Court held that it was. What Gilbert J did was to extend the limited purpose identified by the Supreme Court to encompass section 240, thus widening the applicability of the concept of digital property to other sections of the Crimes Act. However, Ortmann was not considered by Thomas J in Henderson.

Information and Data as Property

Thomas J considered competing academic views on the issue of data as property, leaning towards the view that in a modern society intangible property, such as data, is an increasingly valuable resource that requires legal protection. Tangibility, it is argued, is an arbitrary requirement and that the tort of conversion should be brought up to date with advancements in technology.[19]

The academic opponents of extension of property to data focus upon the issue of possession and how that important element of property could be extended to an intangible. The comment in Your Response that although “it is possible to transfer physical possession of tangible property by simple delivery, it is not possible to deal with intangible property in the same way.” 

It is the issue of possession that is significant. Opponents are of the view that the common law should not give total despotic control over anything with economic value. An illustration is that even tangible property does not obtain protection against ephemeral interferences such as visual trespass, and it is the concept of possession that provides the limitation in the case of tangible property.

Thomas J then went on to consider the issue of whether information was property. She acknowledged that information, unlike property, cannot be separated from any person who once possessed it. It is easily acquired, and its free communication is essential to human existence. Furthermore, classifying information as property would undermine all the intricate distinctions and limitations developed by the law of breach of confidence.

Digital Assets

However, Thomas J then developed the concept of digital assets. She said

“However, in my view, it is possible to draw a distinction, as the Supreme Court did in Dixon v R, between information and digital assets. Unlike information, it is possible to apply the concept of possession to digital assets. By digital assets, I mean to include all forms of information stored digitally on an electronic device, such as emails, digital files, digital footage and computer programmes.”[20]

Thomas J then addressed the issue of control in the context of digital assets. Control is an element of possession and may be cognitive control and\or manual control. Physical control is just one aspect of manual control and manual control has within it the elements of excludability and exhaustability.

Something is excludable if others can be excluded from its control, while something is exhaustible if its value can be deprived from others. These criteria fit logically with the basis for conversion because together they enable someone to control property to the detriment of another.[21]

Thomas J considered that digital assets are both excludable and exhaustible. In terms of excludability, digital assets have a material presence in the sense that they physically alter the medium on which they are held, which is illustrated by the fact that hardware only has a finite storage capacity for digital assets, a point the Supreme Court picked up on in Dixon v R.

Physical presence allows others to be excluded from the digital asset, either by physical control of the medium or by password protection, which can be considered analogous to locking-up tangible property with a key.

Conversion requires an extensive encroachment on the possessory rights of the plaintiff, so if exhaustibility is a key component of possession, then it follows that the defendant must in some way deprive the plaintiff of the asset to make out the tort.

This requirement removes any inconsistency between the tort’s application to tangible and digital assets. It also mitigates any policy concerns that extending the tort would inhibit the free exchange of digital information.[22]

Thomas J concluded by observing that it seems obvious that digital assets should be afforded the protection of property law. They have all the characteristics of property and the conceptual difficulties appear to arise predominantly from the historical origins of our law of tangible property. There is a real difference between digital assets and the information they record. Such permanent records of information are already convertible when they take a physical form and it would be arbitrary to base the law on the form of the medium, especially now that digital media has assumed a ubiquitous role in modern life.[23]

Observations

My criticisms of Dixon and my support of the English position in Your Response has been based upon technological realities. Essentially, at its most basic form, digital data is no more nor less that a series of electronic impulses recorded upon a medium that require a complex system of devices to render it into comprehensible form. In such a state – dynamic, alterable and often mercurial in that data changes as a computer is started – it can hardly have the stability required of tangible property.

However, in light of the reasoning in Henderson and particularly Thomas J’s characterisation of digital assets I have reconsidered my position, and have come to a middle way that recognizes technological realities and yet conceptually allows digital material to be property. It is based upon the architecture of a computer file system.

A computer file system consists of a number of layers. At its most fundamental is the physical file system which organizes the data which is scattered about the medium. A second layer, which in some considerations may be optional, is the virtual file system which allows support for multiple concurrent instances of the physical file system. Finally, the logical file system provides the application program interface (API) for file operations and passes requested operations to the layer below for processing. This layer provides file access, directory operations, security and protection.

The logical file system is presented to the user in the form of a directory tree which contains file folders and file names. These are labels defined by the user (or in some cases the device) that allow the system to bring together the scattered data into coherent form. In many operating systems file folders are represented as just that – a folder. File names may be accompanied by an icon which represents the type of file that it might be – a Word document, an Adobe pdf, an image file and so on. These correspond to what Thomas J has described as digital assets.

In my opinion, and adopting Thomas J’s conceptual approach, the logical file system can be viewed in this way. There is a differentiation between a file and the information that it contains. In other words, the file itself in total can be seen as a container – akin to a book or a piece of paper which may contain text or information[24]. One can interfere with the book or paper (putting to one side the differences in physical media between such constructs and a digital storage system) and be interfering with property without interfering with the information that either item contains. The problem with Thomas J’s characterization of “digital assets” is that it fails to make the distinction between the logical file construct on the one hand and the data contained on the other.

Therefore, I concede that a digital file can amount to property within the context of the logical file construct of a digital filing system. The question now becomes one of whether or not that approach applies to all forms of digital files and digital constructs, because digital data is often organized in different ways depending upon its use.

One such difference in organization is in the field of cryptocurrencies, which leads me to consider the case of Ruscoe and Moore v Cryptopia Ltd (In Liquidation)[25]

The Cryptocurrency Issue

Before embarking upon a discussion of Crytopia some remarks by way of introduction need to be made.

The issue of whether or not cryptocurrencies such as Bitcoin can be property has been considered in three cases[26], all of which are mentioned in Cryptopia.  What is significant is that the treatment of the issue has been superficial and within the context – as is so often the case – of interlocutory proceedings. Cryptopia is the first case to give a considered analysis of the issue.

Ruscoe and Moore v Cryptopia

Cryptopia – a cryptocurrency trading exchange – went into liquidation after a hack resulted in a loss to the Company of $30 million. The company held cryptocurrencies to a value of $170 million. The issue was the legal nature and status of those digital assets and the potential equitable interests in them.

Cryptoassets Defined

The judge, Gendall J first examined what cryptocurrency was and relied to a considerable degree upon British report of the “UK Jurisdiction Taskforce” entitled Legal Statement on Cryptoassets and Smart Contracts.[27] This report considers broadly the legal status of crypto assets and whether the law treats them as property. The report plays an important role in Gendall J’s decision as it did in the case of AA v Persons Unknown.[28]

Crypto assets arose as a result of a proposal by the pseudonymous Satoshi Nakamoto who proposed a new electronic payment system “based on cryptographic proof instead of trust”, with digital tokens – bitcoins – taking the place of traditional currency. The first bitcoin came into existence in January 2009, not coincidentally at the height of the global banking crisis.

Since then other systems have developed using cryptographic techniques. Most of the applications involve dealing in assets of some sort which are represented digitally in the system. This there is a link between a digital representation and an actual asset. The digital representations are referred to as crypto assets. However, because of the large number of different systems in use and the types of assets represented it is difficult to formulate a precise and all-embracing definition of the term.

In general terms there are common features of crypto assets which, when compared with conventional assets are novel or distinctive.

The starting point is to understand the rules of the system within which the crypto asset exists. Functionally, it is typically represented by a pair of data parameters, one public (in that it is disclosed to all participants in the system or to the world at large) and one private.

The public parameter contains or references encoded information about the asset, such as its ownership, value and transaction history.

The private parameter – the private key – permits transfers or other dealings in the crypto asset to be cryptographically authenticated by digital signature.

Knowledge of the private key confers practical control over the asset; it should therefore be kept secret by the holder. More complex crypto assets may operate with multiple private keys (multisig), with control of the asset shared or divided between the holders.

Dealings in a crypto asset are broadcast to a network of participants and, once confirmed as valid, added to a digital ledger. The main function of the ledger is to keep a reliable history of transactions and so prevent double-spending, i.e. inconsistent transfers of the same crypto asset to different recipients.

The ledger may be distributed and decentralised, that is, shared over the network with no one person having a responsibility for maintaining it, or any right to do so.

A common type of distributed ledger uses a blockchain, which comprises blocks of transactions linked together sequentially, but other models are also in use.

An important feature of some systems is that the rules governing dealings are established by the informal consensus of participants, rather than by contract or in some other legally binding way.

Consensus rules (employing methods such as proof-of-work or proof-of-stake) may also determine which version of the distributed ledger is definitive. The rules are self-enforcing in practice, even if not enforceable in law, because only transactions made in compliance with them and duly entered in the ledger will be accepted by participants as valid.[29]

Thus there are five common characteristics to crypto assets:

  • intangibility;
  •  cryptographic authentication;
  •  use of a distributed transaction ledger;
  • decentralisation; and
  • rule by consensus.

Gendall J also considered how Cryptopia operated and its terms and conditions which governed its relationship with its account holders. The, having established the technological and business model issues he went on to consider the legal position.

Legal Issues Arising

The starting point was the power to give directions to the liquidator of the company in relation to any matter arising in the liquidation.[30] There were a number of questions that the liquidator wanted the Court to answer as to the legal status of the Digital Assets. The first and most relevant to this discussion was whether or not they constituted property as defined by s. 2 of the Companies Act.[31]

There were also questions posed as to the nature of the way in which the assets were held for account holders, whether they were in trust and, depending upon the answers to those questions were a number of supplementary questions which arose. However the Court considered the two main issues were

(a)     Are cryptocurrencies a type of “property” in terms of the Companies Act and, linked to this, can cryptocurrencies form the subject matter of a trust?

(b)     Was Cryptopia, in providing a cryptocurrency storage and exchange service for its customers, a trustee of the currency brought onto the exchange by accountholders and held by it?

The account holders argued that cryptocurrencies must be seen as a form of intangible personal property both at common law and within the definition contained in s 2 of the Companies Act. The liquidators and the creditors disagreed with this. The creditors also contended that cryptocurrencies are not property capable of forming the subject matter of a trust at common law. Alternatively even if they are not property they are capable of forming the subject matter of a trust.[32]

It was contended for the account holders that any finding by the Court that cryptocurrencies are not property would have profound and unsatisfactory implications for the law in New Zealand including in particular insolvency law, succession law, the law of restitution and commercial law more generally. It was also contended that this was a matter for the Court to decide rather than be left to Parliament as argued by the creditors.

The Importance of the Property Issue

The Judge considered why it mattered that a cryptocurrency was property. He referred to a text which stated:

“Property is a gateway to many standard forms of transactions. A crypto-coin can never become the subject matter of a trust or a proprietary right of security, nor will it be an asset in a deceased’s person’s estate, unless it is first recognised as an object of property. The same is true of a secured creditor or trust beneficiary enforcing their claim in property to the unsecured creditors of an insolvent coin-holder. The development of a viable cryptocurrencies derivative market may sometimes require that the primary assets from which secondary claims are constructed are capable of legal recognition as property.”[33]

He then turned to the approach set out on the Legal Statement on Cryptoassets and Smart Contracts and concluded that the cryptocurrencies here situated in Cryptopia’s exchange are a species of intangible personal property and clearly an identifiable thing of value. Without question they are capable of being the subject matter of a trust.[34]

The starting point was that the Courts in New Zealand had accepted that the definition of property was a wide one, and after a brief reference to the case of  National Provincial Bank Ltd v Ainsworth[35] where Lord Wilberforce set out the four characteristics of property[36] (and to which he would later return) he went on to consider other cases involving the issue of cryptocurrencies as property.

Other Cases on Cryptocurrencies

B2C2 Ltd v Quoine Pte Ltd

The first case to which Gendall J referred was that of B2C2 Ltd v Quoine Pte Ltd (Singapore)[37] In that case Quoine had conceded that Bitcoin was a species of “property” but it did not concede that there was any trust. Thorley IJ considered that the concession on the “property” point was rightly made and in his judgment his Honour stated

“Cryptocurrencies are not legal tender in the sense of being a regulated currency issued by government but do have the fundamental characteristic of intangible property as being an identifiable thing of value. Quoine drew my attention to the classic definition of a property right in the House of Lords decision of National Provincial Bank v Ainsworth [1965] 1 AC 1175 (HL) at 1248:

…it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

Cryptocurrencies meet all these requirements. Whilst there may be some academic debate as to the precise nature of the property right, in the light of the fact that Quoine does not seek to dispute that they may be treated as property in a generic sense, I need not consider the question further.”

The case went on appeal – one of the major issues was whether the cryptocurrencies were held on trust but as to the property issue the Court of Appeal declined to decide whether Bitcoin was property capable of forming the subject matter of a trust. Menon CJ noted

“There may be much to commend the view that cryptocurrencies should be capable of assimilation into the general concepts of property. There are, however, different questions as to the type of property that is involved. It is not necessary for us to come to a final position on this question in the present case.”

This comment was described by Gendall J as “helpful”.[38] The Singapore decision in B2C2 has previously been much cited despite the brevity of its reasoning.

Vorotyntseva v Money-4 Ltd[39]

In Vorotyntseva Birss J sitting in the Chancery Division of the English High Court granted ex parte a proprietary freezing order over some bitcoin and ethereum currency, stating that the defendant in that case had not suggested that “cryptocurrency cannot be a form of ‘property’ but there was no further discussion on the point.

Shair.Com Global Digital Services Ltd v Arnold[40]

In Shair.com the Supreme Court of British Colombia granted an ex parte preservation order to the plaintiff company against its former chief operating officer with respect to digital currencies that might still be in the defendant’s possession.

Without providing any reasoning the Court accepted that cryptocurrencies could be property within the rules for preservation orders, noting that in the correspondence between the parties that had been filed for the proceeding the defendant had not denied that the plaintiff had an interest to pursue.

AA v Persons Unknown[41]

 In AA Bryan J granted an interim proprietary injunction against a cryptocurrency exchange over bitcoin which represented proceeds of ransom monies paid out to a hacker by the applicant insurance company. The hackers had installed malware into the insurance company’s computer system, and demanded the company pay a ransom in bitcoin, to regain access to its system. The ransom was paid in bitcoin and transferred into the exchange. The insurance company applied to the Court for an interim proprietary injunction against the exchange over the bitcoin, amongst other things.

Only counsel for the applicant insurance company appeared at the hearing in that case and filed submissions. It seems the High Court in AA primarily relied on the Legal Statement on Cryptoassets and Smart Contracts, and that no other argument was addressed to the Court on the issue.

While from the above cases it will be apparent that this was not the first common law decision to consider the status of crypto assets, it is both the first to give detailed consideration to the point, and the first to consider the careful reasoning of the UKJT Legal Statement.

While Bryan J caveated his conclusions, stating that his conclusion is “at least to the level required for the purposes of this application for interim relief”, the otherwise unreserved endorsement and complete adoption of the careful and well-reasoned position taken by the UKJT Legal Statement strengthened the status of that publication, and had given one of its major conclusions a strong judicial endorsement.

New Zealand Cases

Gendall J referred not unsurprisingly to Dixon v R[42]and to Henderson v Walker[43] noting the findings in those cases as to the nature of digital property. He considered that the findings in Henderson, could be properly extended to wrongful interferences with cryptocurrency or digital assets. Any person who gained unauthorised access to the private key attached to cryptocoins and used it would permanently deprive the proper possessor of the cryptocoins of that property and its value.[44]

In the case of Commissioner of Police v Rowland[45] the Court approved a settlement under the Criminal Proceeds (Recovery) Act 2009 that included quantities of two cryptocurrencies – bitcoin and ethereum. The question whether the cryptocurrencies were “property” that was amenable to forfeiture under that legislation, however, was not raised in the proceeding. An assumption was made that they did fall within the definition in terms of that legislation[46].

Importantly the Judge analysed the approach in Dixon and Henderson noting the New Zealand courts involved have accepted that the orthodox position that information is not “property” does not attach to cases involving digital assets. There, digital files were seen as “property” by distinguishing them from “pure information”.

National Provincial Bank Ltd v Ainsworth

Gendall J then went on to consider Lord Wilberforce’s four requirements for property and considered that all four of his requirements could be applicable to computer data.

Identifiable Subject Matter

As to the requirement of identifiable subject matter, in the context of cryptocurrencies, computer readable strings of characters recorded on networks were sufficiently distinct to be capable of then being allocated uniquely to an accountholder on that particular network. For the cryptocurrencies involved here, the allocation is made by what is called a public key – the data allocated to one public key will not be confused with another.

This is the case even though the identical data is held on every computer attached to the network. Indeed, the working of the system is such that the distribution of the data across a large network of computers, when combined with cryptography that prevents individual networks from altering historic data over the network, assists in giving that data stability. It is these features that provide the basic underpinning for the existing cryptocurrencies.[47]  

Thus the combination of the data together with the unique identifier which related to that data fulfilled the criterion of identifiability. This differs from the means of identification of computer data in a container within a logical file system, and shows the difficulty in trying to reach a common and all-embracing approach to computer data as property because of the diverse types of circumstances surrounding the storage and recover of such data.

Identifiable by Third Parties

Can the subject matter be identifiable by third parties. This second item of Lord Wilberforce’s criteria refers to the thing that is identified as having to have an owner capable of being recognised as such by third parties.

This is the aspect of exclusivity that is referred to by Thomas J in Henderson. There has to be a degree of control over the asset to the exclusion of others. That is as much if not more significant than the power to use of to benefit from the asset.[48]

Gendall J considered that exclusivity was achieved with cryptocurrencies by the computer software allocating to each public key a second set of data made available only to the holder of the account (the private key), and requiring the combination of the two sets of data in order to record a transfer of the cryptocurrency attached to the public key from one account to another.

The judge observed that a varied public key and a new private key for the cryptocurrency are generated after each transfer of cryptocurrency. He likened the private key to a PIN. Anyone who learns of the private key attached to a public key can transfer the public key but the private key, having been used once in respect of the public key, cannot be used again.[49]

Assumption by Third Parties

Third parties must respect the rights of the owner in that property. This means that the law will give effect to proprietary rights if a third party asserts a claim to ownership without justification.

Usually, although not invariably, an asset recognised by the law as an item of property will be something which is potentially desirable to third parties such that they would want themselves to obtain ownership of it. It may well be that an asset has no market value, but that matters not.[50]

Degree of Permanence or Stability

It was recognized that some assets have little permanence yet still remain property. Gendall J gave the example of a ticket to a football match which had a short useful or valid life and unquestionably was regarded as property.[51] The judge also considered that there was no problem in situations where the short life of an asset is the result of the deliberate process of transferring the value inherent in the asset so that one asset becomes replaced by another. This is the way that cryptocurrencies work but by the same token bank payments use a similar process which he described as native to the property in question.[52]

He also considered the action of wrongful interference with a cryptocurrency , by someone gaining unauthorised access to the private key or by hacking the address to which an owner intends to send a coin. He considered this from the position of risk, observing that the risk was not markedly greater than those borne by an owner of tangible property or a person relying on the integrity of a bank account record with or without the use of a PIN.[53]

Gendall J concluded his analysis of the Ainsworth categories with the following comment:

“I am satisfied that cryptocurrencies meet the standard criteria outlined by Lord Wilberforce to be considered a species of “property”. They are a type of intangible property as a result of the combination of three interdependent features. They obtain their definition as a result of the public key recording the unit of currency. The control and stability necessary to ownership and for creating a market in the coins are provided by the other two features – the private key attached to the corresponding public key and the generation of a fresh private key upon a transfer of the relevant coin.”[54]

Arguments Against Cryptocurrencies as Property

The Judge then considered some of the arguments against the concept of cryptocurrencies as property. These were identified primarily for the purposes of discounting them.

Tangibles or Choses in Action

The first argument arose from the dicta of Fry LJ in Colonial Bank v Whinney[55] and the theory that the law recognizes only two classes of personal property – tangibles or choses in action. Gendall J was of the view that cryptocurrencies could be classed as choses in action and observed that it would be ironic that something that might be said to have more proprietary features than a simple debt is deemed not to be property at all when a simple debt qualifies.[56]

No Property in Information

The second argument was that surrounding the suggestion that information was not property. I have discussed this in the context of Henderson and I repeat the differentiation that may be made between the contents (information) and the container (the logical file system).

He considered Your Response Ltd but was dismissive of it in a summary manner saying  “[as] I see it, however, the decision in Your Response does not go much further than to make a determination upon the particular facts of that case. I am satisfied it is an inconclusive precedent in a case such as the present.”[57]

There was probably a very simple way to provide a rationale for dismissing Your Response by perhaps observing that there were differences in the subject matter of Your Response (a database) and that of Cryptopia (a cryptocurrency supported by blockchain and with a public\private key authentication process).

The common feature between the two cases is that they involve digital data but the way that data is stored and accessed is quite different and requires an analysis in each case to determine whether or not the legal requirements of “property” are fulfilled.

If there is a problem with Your Response it is that the Court of Appeal placed excessive weight upon the contents of the database which, correctly was the information, as opposed to the container within which it resided – that is the logical framework within which the data was contained.

Gendall J considered whether or not cryptocurrencies could be mere information. On the basis of my analysis the answer is no but Gendall J adopted a different line of reasoning.

Firstly he considered the purpose of cryptocurrencies which was to create an item of tradeable value not simply to record or to impart in confidence knowledge or information. Although cryptocoins are not backed by the promise of a bank, the combination of data that records their existence and affords them exclusivity is otherwise comparable to the electronic records of a bank. The use of the private key also provides a method of transferring that value. This might be seen as similar in operation to, for example, a PIN on an electronic bank account.

He then observed that cryptocoins were no more information than are the words of a contract. At its most basic level this is incorrect because words are capable of being read or heard.[58] Words are information. They inform and have meaning.

But what Gendall J meant, with respect, is that words within the framework of a contract are not information because collectively and cumulatively they create a relationship recognized by equity. The contract is conceptualized as the container for the specific information that establishes the equitably recognized relationship.

Another reason for rejecting the “cryptocurrency as mere information” argument is that the data is not available for those with eyes to read or ears to hear. Every public key recording the data constituting the coin is unique on the system where it is recorded. It is also protected by the associated private key from being transferred without consent.

In addition, cryptocurrency systems provide a more secure method of transfer than a mere assignment of a chose in action. It is possible in equity for the holder of a chose in action to assign it multiple times. Only one assignment will be effective to bind the debtor but the winner may not be the first assignee in time but rather the first assignee to notify the debtor. By way of contrast, a cryptocoin can not only be assigned in that way but it can also be sold only once and that the argument that cryptocurrency is mere information and therefore it is not property is a simplistic one and, in the view of Gendall J  is wrong in the present context.[59]

Conclusion

Cryptopia is a significant case because, unlike its predecessors discussed above, it is the first case to give detailed analysis of the nature of cryptocurrencies and why they are property. It provides a carefully considered rationale for its conclusion and settles a complex question about aspects of digital property.

But it is not a complete answer. It is not a universal authority for the principle that digital data is property or that digital files are property. It is authority only for the proposition that cryptocurrencies are property. With little difficulty the rationale could probably be extended to other aspects of blockchain.

However, what Cryptopia and Henderson do give us is an analytical pathway to a consideration of whether the different flavours of digital data comprise property. Once the analysis recognizes that a consideration of the data alone without a consideration of the way in which it is technologically structured – what could be referred to as “the container theory” –  is a flawed approach, the analytical pathways become significantly clearer.

As is the case with all aspects of the common law, further developments in this field will be incremental. However, on the present state of technological understanding of the Digital Paradigm it is unlikely that at law there will be a Unified Property Theory that will be applicable to all forms digital data.


[1] See Phipps v Boardman [1967] 2 AC 46 (HL).  – information “is normally open to all who have eyes to read and ears to hear” See also Oxford v Moss (1979) 68 Cr App R 183.

[2] [2007] UKHL 21, [2008] 1 AC 1.

[3] Ibid. para [97].

[4] [2014] EWCA Civ 281, [2015] QB 41..

[5] Above n.2

[6] Torkington v McGee [1902]  2 KB 427

[7] Your Response Ltd v Data Team Business Media Ltd above n. 4 at para [17]

[8] Ibid. at para [38].

[9] There have been a number of other cases which have held that information does not amount to property.  In the case of Boardman v Phipps [1967] 2 AC 46 it was held that confidential information was not property.  The position in Australia and in New Zealand is similar – See TS and B Retail Systems v Three Fold Resources No 3 [2007] FCA 151 and Farah Construction Pty v Saydee Pty [2007] HCA 22.  A similar conclusion has been reached in Hunt v A [2007] NZCA 332; [2008] 1 NZLR 368. In Money Managers Limited v Foxbridge Trading (Unreported High Court Hamilton CP 67/93 15 December 1993 per Hammond J) the observation was made that “extreme caution should be exercised in granting proprietary protection to information and that if protection is to be granted at all, it should be in very narrowly circumscribed terms.” The rejection of the argument that information is property was also upheld in Taxation Review Authority 25 [1977] TRNZ 129. 

[10] [2019] NZHC 2184

[11] Ibid at [251]

[12] Thyroff v Nationwide Mutual Insurance Co 8 NY 3d 283 (NY 2007)

[13] [2015] NZSC 147 (SC); [2016] 1 NZLR 678

[14] Above n. 1.

[15] That section provides as follows.

Accessing computer system for dishonest purpose

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person. (My emphasis)

[16] Dixon above n. 13 [25].

[17] [2017] NZHC 189

[18] Above n. 13.

[19] Henderson above n. 10 para [260].

[20] Ibid para [263].

[21] Ibid para [264].

[22] Ibid para [266].

[23] Ibid para [270].

[24] I advance that comparison tentatively and solely for the purposes of illustration.

[25] [2020] NZHC 728.

[26] B2C2 Ltd v Quoine Pte Ltd (Singapore) SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC); Vorotyntseva v Money-4 Ltd [2018] EWHC 2596 (Ch) and AA v Persons Unknown [2019] EWHC 3556, [2020] 4 WLR.

[27] UK Jurisdiction Taskforce Legal Statement on Cryptoassets and Smart Contracts (The LawTech Delivery Panel, November 2019) [Legal Statement on Cryptoassets and Smart Contracts] https://technation.io/news/uk-takes-significant-step-in-legal-certainty-for-smart-contracts-and-cryptocurrencies

[28] Above n. 26.

[29] Legal Statement on Cryptoassets and Smart Contracts above n. 27.

[30] Section 284(1)(a) Companies Act 1993.

[31] Section 2 in defining property states “Property means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal, and includes rights, interests, and claims of every kind in relation to property however they arise.”

[32] Cryptopia above n. 25 at paras [50} – [51].

[33] Ibid [63].

[34] Ibid [69].

[35] [1965] AC 1175 (HL) at 1247–1248

[36] Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

[37] SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC)

[38] Cryptopia above n. 25 [84].

[39] [2018] EWHC 2596 (Ch).

[40] 2018 BCSC 1512.

[41] [2019] EWHC 3556, [2020] 4 WLR 35.

[42] Above n.13.

[43] Above n.10.

[44] Cryptopia above n 25 [93].

[45] [2019] NZHC 3314.

[46] The Criminal Proceeds (Recovery) Act 2009 defined property.

[47] Cryptopia above n. 25 [105].

[48] Ibid. [109] – [110].

[49] Ibid. [112].

[50] Ibid. [114].

[51] Care must always be employed in considering analogies with exemplars from a different paradigm. See David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) at p. 63 et seq.

[52] Cryptopia above n. 25 [117].

[53] Ibid. [119].

[54] Ibid. [120]. This identical point is made in the Legal Statement on Cryptoassets and Smart Contracts which says that a cryptoasset is “a conglomeration of public data, private key and system rules.”

[55] (1885) 30 Ch D 261

[56] Cryptopia above n. 25  [124].

[57] Ibid. [126].

[58] As specified by Lord Dilhorne in Boardman v Phipps [1967] 2 AC 46

[59] Cryptopia above n. 22 [127] – [128]