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.

Justice in the Rear-View Mirror

When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future.[1]

Covid-19 has forced the Courts to adopt new ways of working in the lock-down environment.

Before the advent of Covid-19 the Court system in New Zealand operated as it has for decades – a paper-based system based on the courthouse as a physical meeting place, bringing together large numbers of people in a central location. It may be described as the “in person” or “physical presence” model with the “Courthouse as a Place”. The Courthouse has been symbolic of justice delivery, often an imposing temple-like structure with solid emblems representing the majesty of the law and the delivery of just outcomes and firm retribution for the wicked.

The threat posed by Covid-19 to public safety and to the community at large along with a lock-down preventing movement and gatherings has challenged that model. It has required change and that change has had to be implemented quickly so that essential justice services might still be delivered.

In some respects the “Courthouse as a Place” model still prevails. Courtrooms throughout the country have the ability to hear cases remotely using Virtual Meeting Room technology – a significant movement forward from the earlier use of Audio-Visual links (AVL) that have been in place for some years. 220 virtual meeting rooms have been set up across 267 court locations and these are being increased. More collaboration tools are anticipated and the number of virtual private network connections to the Court system have increased from 500 to over 2000.

In addition a form of electronic filing of court papers has been implemented although this is by no means a full-featured e-filing regime.

For a number of reasons it is not possible to conduct a full scale judge alone criminal trial remotely without the consent of the defendant, although under the present law it is possible to conduct a civil hearing using remote technology.

Nevertheless, the speed with which the Ministry and the Judiciary have moved to put these systems in place is admirable. It shows what can be done to implement new communications technologies within the justice system. Although what has been provided is by no means perfect, nor is it as wide ranging as those of us who favour greater use of technology in the justice system would like, it is a start – a proof of concept forced on us by necessity. It is something upon which the Court system could and should build to make justice more available and accessible in the future.

Before Covid-19 forced changes upon the system, there was no disaster plan for the circumstances that have been presented. The Spanish influenza epidemic of the early 20th century could provide no answers to the problems facing the Courts. There was, in fact, no Plan B. But Plan B – or at least the beginnings of it – are now in place.

The problem is that these innovations, developed as they have been to meet the challenges of delivering justice in a lockdown, are seen as temporary. At the end of the Covid-19 emergency  we in New Zealand will return to “physical presence” model conducted in courthouses throughout the country. It is argued that courthouses serve an important role as the local face of justice for communities.

The suggestion is that the use of technology is not how justice should be delivered in New Zealand. At the moment the problem is that the use of technology has been forced upon us, like it or not, and the solutions arising should not be discarded as no longer fit for purpose or a temporary emergency expedient.

In the overall scheme of things the issue of remote access and videoconferencing is a small part of a much bigger picture that involves the digitization of the Court record. There are already solutions available for this such as that offered by Caselines and about which I was talking back in 2013!

But remote access and digital presence have been dismissed based on the perception that a digital Court system does not – cannot – replicate the level of public and community engagement in the processes of justice and it can’t really replicate the public understanding that flows from a Court house based system for justice. The current use of digital technology has been forced upon the Courts – a stopgap measure; a temporary expedient.

The view is that the “in person” model involving a face to face exchange involving the Judge, counsel and the defendant is important, along with the presence of the Court as a place where the community comes together to provide support for victims and for defendants. It is argued that it is by way of those opportunities for early interventions which can prevent re-offending and subsequent re-engagement with the criminal justice system. I gather that this approach is based on research done by a Professor Ian Lambie and to which Chief Justice referred in her paper to the Criminal Bar Association Conference in 2019.

The concern is that there seems to be an overuse of AVL which is considered lacking in the richness of the information that can be passed between people in a face to face situation. There is unhappiness with the increased use of AVL that the Covid 19 crisis has made necessary but it is recognized it a necessity.

In many respects I consider that the these views about AVL and remote hearings, informed in part by the view of Professor Lambie, are as much cultural as anything else. The majority of the judiciary, myself included, have grown up with the “in presence” model. It is what we are used to. The reality is that more and more people are becoming used to getting their information remotely and are able to make the necessary adjustments in their cognitive and reactive thinking. The human race is known for its ability to adapt and lawyers and judges must be part of this adaptation.

So where does this leave us? There are a number of realities that we have to face. The first is that whether we like it or not we are in the middle of a revolutionary process – and not a political revolution but a revolution that will affect our entire society. We simply will not return to the world as it was in December 2019. All will change – change utterly.

We have to recognize that the post-Covid-19 world will be a different one from that to which we are used. And the realities of the revolution will not become apparent for some considerable time. My own view is that there will be social disruption and dislocation that will continue until at least the end of 2021. Around about then we may see some form of stability – I do not use the word “normalcy” because that suggests a return. There will be no return.

As a result of the circumstances that have been forced upon us we have had to adapt to new methods of communication and information exchange. A whole older generation a few weeks ago thought an email was the cutting edge of technology. Within a very short period of time they have discovered that video calling their friends and family is not some black art for which they need a computer technician.

If there are lawyers and Judges who have made that discovery, they will then likely make the mental jump and ask why on earth the same thing cannot be usefully done in a court. Digital systems and remote hearings may not be the way for all cases but they can be used for many and may provide a more effective, relevant, accessible, versatile justice system than we had before.

Although I know that some of the arguments in favour of the “in person” “Courthouse as a Place” model are based upon elements of the Rule of Law and the importance of full engagement and the symbolic trappings surrounding the administration of Justice, the changes that have been forced upon us demonstrate the fragility and brittleness of those arguments and indeed of the system itself.

But to say that it will be “business as usual” once things settle down, to suggest a full return to the clumsy, archaic, rear view system that has been so much a part of the past ignores the fact that there are effective technological system for the delivery of justice services.

Covid 19 and the lockdown forced the Courts to scramble for solutions to important services that they provide. Why? Because there was no Plan B. The Covid 19 crisis demonstrated that it was unacceptable to argue that “this is the only way because it is the way that we have done it.”

What the Covid 19 crisis has done is forced us to recognize that we must have alternatives. There will be other crises in the future that will require us to move fast and break things. We should always have a Plan B and one that can be deployed seamlessly and easily to whatever threats arise. Remote hearings and greater use of technology form part of that Plan B, have been deployed and can be improved and developed further.

The ball of opportunity has been placed before us. It may be, if we pick it up, there may be a few stumbles and a few drops. Better that than never to have picked up the ball at all.


[1] McLuhan, M. and Q. Fiore. The Medium is the Massage: An Inventory of Effects. Co-ordinated by J. Agel. (1967). New York, London, Toronto: Bantam Books. pp 74 – 75.

Do Social Network Providers Require (Further?) Regulation – A Commentary

This is a review and commentary of the Sir Henry Brooke Student Essay Prize winning essay for 2019. The title of the essay topic was “Do Social Network Providers Require (Further?) Regulation

Sir Henry Brooke was a Court of Appeal judge in England. He became a tireless campaigner during retirement on issues including access to justice. His post-judicial renown owed much to his enthusiastic adoption of digital technology although he spear-headed early initiatives for technology in courts and led and was first Chair of the British and Irish Legal Information Institute (BAILII) – a website that provides access to English and Irish case and statute law. Upon his retirement many came to know of him through his blog and tweets. He drafted significant sections of the Bach Commission’s final report on access to justice, and also acted as patron to a number of justice organisations including the Public Law Project, Harrow Law Centre and Prisoners Abroad.

The SCL (Society for Computers and Law) Sir Henry Brooke Student Essay Prize honours his legacy.  For 2019 the designated essay question this year was 2000-2,500 words on the prompt “Do social network providers require (further?) regulation?” the winner was Robert Lewis from the University of Law. His essay considers some of the regulatory responses to social media. His starting point is the events of 15 March 2019 in Christchurch.

The first point that he makes is that

“(h)orrors such as Christchurch should be treated cautiously: they often lead to thoughtless or reflexive responses on the part of the public and politicians alike.”

One of his concerns is the possibility of regulation by outrage, given the apparent lack of accountability of social networking platforms.

He then goes on to examine some examples of legislative and legal responses following 15 March and demonstrates the problem with reflexive responses. He starts with the classification of the live stream footage and the manifesto posted by the alleged shooter. He referred to a warning by the Department of Internal Affairs that those in possession of the material should delete it.

He then examines some of the deeper ramifications of the decision. Classification instantly rendered any New Zealander with the video still in his computer’s memory cache, or in any of his social media streams, knowingly or not, potentially guilty of a criminal offence under s.131 of Films Videos and Publications Classification Act 1993. He comments

“Viewing extracts of  the footage shown on such websites was now illegal in New Zealand, as was the failure to have adequately wiped your hard drive having viewed the footage prior to its classification. A significant proportion of the country’s population was, in effect, presented with a choice: collective self-censorship or criminality.”

Whilst he concedes that the decision may have been an example of civic responsibility, in his opinion it did not make good law. Mr. Lewis points out that the legislation was enacted in 1993 just as the Internet was going commercial. His view is that the law targets film producers, publishers and commercial distributors, pointing out that

“these corporate entities have largely been supplanted by the social network providers who enjoy broad exemptions from the law, which has instead been inverted to criminalise “end users”, namely the public which the law once served to protect.”

He also made observations about the maximum penalties which are minimal against the revenue generated by social media platforms.

He then turned his attention to the case of the arrest of a 22 year old man charged with sharing the objectionable video online. He commented that

“that faced with mass public illegality, and a global corporation with minimal liability, New Zealand authorities may have sought to make an example of a single individual. Again, this cannot be good law.”

Mr. Lewis uses this as a springboard for a discussion about the “safe harbor” provisions of the Communications Decency Act (US) and EU Directive 2000/31/EC, which created the “safe harbour” published or distributed.

Mr Lewis gives a telling example of some of the difficulties encountered by the actions of social media platforms in releasing state secrets and the use of that released information as evidence in unrelated cases. He observes

“The regulatory void occupied by social network providers neatly mirrors another black hole in Britain’s legal system: that of anti-terrorism and state security. The social network providers can be understood as part of the state security apparatus, enjoying similar privileges, and shrouded in the same secrecy. The scale of their complicity in data interception and collection is unknown, as is the scale and level of the online surveillance this apparatus currently performs. The courts have declared its methods unlawful on more than one occasion and may well do so again.”

A theme that becomes clear from his subsequent discussion is that the current situation with apparently unregulated social media networks is evidence of a collision between the applicability of the law designed for a pre-digital environment and the challenges to the expectations of the applicability of the law in the digital paradigm. For example, he observes that

“The newspapers bear legal responsibility for their content. British television broadcasters are even under a duty of impartiality and accuracy. In contrast, social network providers are under no such obligations. The recent US Presidential election illustrates how invidious this is.”

He also takes a tilt at those who describe the Internet as “the Wild West”.

“This is an unfortunate phrase. The “wild west” was lawless: the lands of the American west, prior to their legal annexation by the United States, were without legal systems, and any pre-annexation approximation of one was illegal in and of itself. In contrast, the social network providers reside in highly developed, and highly regulated, economies where they are exempted from certain legal responsibilities. These providers have achieved enormous concentrations of capital and political influence for precisely this reason.”

He concludes with the observation that unlawful behaviour arises from a failure to apply the law as it exists and ends with a challenge:

“ In England, this application – of a millennium-old common law tradition to a modern internet phenomenon such as the social networks – is the true task of the technology lawyer. The alternative is the status quo, a situation where the online publishing industry has convinced lawmakers “that its capacity to distribute harmful material is so vast that it cannot be held responsible for the consequences of its own business model.””

The problem that I have with this essay is that it suggests a number of difficulties but, apart from suggesting that the solution lies in the hands of technology lawyers, no coherent solution is suggested. It cites examples of outdated laws, of the difficulty of retroactive solutions and the mixed blessings and problems accompanying social media platforms. The question really is whether or not the benefits outweigh the disadvantages that these new communications platforms provide. There are a number of factors which should be considered.

First, we must recognize that in essence social media platforms enhance and enable communication and the free exchange of ideas – albeit that they may be banal, maudlin or trivial – which is a value of the democratic tradition.

Secondly, we must recognize and should not resent the fact that social media platforms are able to monetise the mere presence of users of the service. This seems to be done in a number or what may appear to be arcane ways, but they reflect the basic concept of what Robert A. Heinlein called TANSTAFL – there ain’t no such thing as a free lunch. Users should not expect service provided by others to be absolutely free.

Thirdly, we must put aside doctrinaire criticisms of social media platforms as overwhelming big businesses that have global reach. Doing business on the Internet per se involves being in a business with global reach. The Internet extends beyond our traditional Westphalian concepts of borders, sovereignty and jurisdiction.

Fourthly, we must recognize that the Digital Paradigm by its very nature has within it various aspects – I have referred to them elsewhere as properties – that challenge and contradict many of our earlier pre-digital expectations of information and services. In this respect many of our rules which have a basis in underlying qualities of earlier paradigms and the values attaching to them are not fit for purpose. But does this mean that we adapt those rules to the new paradigm and import the values (possibly no longer relevant) underpinning them or should we start all over with a blank slate?

Fifthly, we must recognize that two of the realities in digital communications have been permissionless innovation – a concept that allows a developer to bolt an application on to the backbone – and associated with that innovation, continuous disruptive change.

These are two of the properties I have mentioned above. What we must understand is that if we start to interfere with say permissionless innovation and tie the Internet up with red tape, we may be if not destroying but seriously inhibiting the further development of this communications medium. This solution would, of course, be attractive to totalitarian regimes that do not share democratic values such as freedom of expression

Sixthly, we have to accept that disruptive change in communications methods, behaviours and values is a reality. Although it may be comfortable to yearn for a nostalgic but non-existent pre digital Golden Age, by the time such yearning becomes expressed it is already too late. If we drive focused upon the rear view mirror we are not going to recognize the changes on the road ahead. Thus, the reality of modern communications is that ideas to which we may not have been exposed by monolithic mainstream media are now being made available. Extreme views, which may in another paradigm, have been expressed within a small coterie, are now accessible to all who wish to read or see them. This may be an uncomfortable outcome for many but it does not mean that these views have only just begun to be expressed. They have been around for some time. It is just that the property of exponential dissemination means that these views are now available. And because of the nature of the Internet, many of these views may not in any event be available to all or even searchable, located, as many of them are, away from the gaze of search engines on the Dark Web.

Seventhly, it is only once we understand not only the superficial content layer but the deeper implications of the digital paradigm – McLuhan expressed it as “the medium is the message” can we begin to develop any regulatory strategies that we need to develop.

Eighthly, in developing regulatory strategies we must ask ourselves whether they are NECESSARY. What evil are the policies meant to address. As I have suggested above, the fact that a few social media and digital platforms are multi-national organisations with revenue streams that are greater than the GDP of a small country is not a sufficient basis for regulation per se – unless the regulating authority wishes to maintain its particular power base. But then, who is to say that Westphalian sovereignty has not had its day. Furthermore, it is my clear view that any regulatory activity must be the minimum that is required to address the particular evil. And care must be taken to avoid the “unintended consequences” to which Mr Lewis has referred and some of which I have mentioned above.

Finally, we are faced with an almost insoluble problem when it comes to regulation in the Digital Paradigm. It is this. The legislative and regulatory process is slow although the changes to New Zealand’s firearms legislation post 15 March could be said to have been done with unusual haste. The effect has been that the actions of one person have resulted in relieving a large percentage of the population of their lawfully acquired property. Normally the pace of legislative or regulatory change normally is slow, deliberative and time consuming.

On the other hand, change in the digital paradigm is extremely fast. For example, when I started my PhD thesis in 2004 I contemplated doing something about digital technologies. As it happens I didn’t and looked at the printing press instead. But by the time my PhD was conferred, social media happened. And now legislators are looking at social media as if it was new but by Internet standards it is a mature player. The next big thing is already happening and by the time we have finally worked out what we are going to do about social media, artificial intelligence will be demanding attention. And by the time legislators get their heads around THAT technology in all its multiple permutations, some thing else – perhaps quantum computing – will be with us.

I am not saying therefore that regulating social media should be put in the “too hard” basket but that what regulation there is going to be must be focused, targeted, necessary, limited to a particular evil and done with a full understanding of the implications of the proposed regulatory structures.

Medium Messages

A new Bill has been introduced to the New Zealand Parliament. It is called the Legislation Bill. It is meant to be the “one-stop shop” for the law relating to legislation. It is described in a New Zealand Law Society posting as “one legislation bill to bind them all”.

The Bill has some very good proposals. One relates to secondary legislation.  It will  give New Zealand a single, official, public source of legislation, excluding only legislation made by local authorities.

Over 100 agencies are empowered to make secondary legislation on a wide range of matters such as food standards and financial reporting standards. There is no single source for the legislative instruments, many of which are published on agency websites or in gazette notices. The Bill will make it easier to find and access secondary legislation by requiring it to be published on the New Zealand Legislation website alongside Acts of Parliament. This is an excellent move. It will enhance easy access to legal information.

In addition the Bill proposes to replace the Interpretation Act 1999. One of the terms that the Interpretation Act defined was “writing”. That definition reads as follows:

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print).

Now that may have been excusable in legislation enacted in 1999 but in fact that definition was placed in the Interpretation Act in 2003 by section 38 of The Electronic Transactions Act 2002. When I saw that the Interpretation Act was being repealed and updated in the Legislation Bill I thought that we had a chance to see an updated medium neutral definition of writing.

But lo – here is the “new” definition which reads as follows

writing means representing or reproducing words, figures, or symbols in a visible and tangible form and medium (for example, in print)

No change at all. So why is this a problem? Simply that it does not reflect the reality of written material in the Digital Paradigm. It holds to the old association of the message (in written form) with the medium (paper) hence the exemplification “in print”.

I have no difficulty with the suggestion that writing is a representation of words, figures or symbols. It is simply a means of encoding and preserving the ephemerality that is oral language or orally based concepts. And of course, writing has to be visible.

But does it have to be tangible?

This is where we run into a problem – one that the law seems to have difficulty understanding in the electronic age. The issue of tangibility has nothing to do with the message. It has everything to do with the medium. The inextricable and historical association of the medium with the message is perpetuated in the requirement that the message be tangible.

This overlooks (or ignores) the reality of information in the digital paradigm. This is what I have said elsewhere ( see Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age) on the topic:

Electronic data is quite different to its pre-digital counterpart.  Some of those differences may be helpful to users of information.  Electronic information may be easily copied and searched but it must be remembered that electronic documents also pose some challenges.  Electronic data is dynamic and volatile.  It is often difficult to ensure that it has been captured and retained in such a way as to ensure its integrity.  Unintentional modifications may be made simply by opening and reading data.  Although the information that appears on the screen may not have been altered, some of the vital metadata which traces the history of the file – and which can often be incredibly helpful in determining its provenance and may be of assistance in determining a chronology of the events, and when a party knew what they knew, – may have been changed.  To understand the difficulty that the digital paradigm poses for our conception of data it is necessary to consider the technological implications of storing information in the digital space.  It is factually and paradigmatically far removed from information recorded on a medium such as paper.

If we consider data as information written on a piece of paper it is quite easy for a reader to obtain access to that information long after it was created.  The only thing necessary is good eyesight and an understanding of the language in which the document is written.  It is “information” in that it is comprehensible. It is the content that informs.  Electronic data in and of itself does not do that.  It is incoherent and incomprehensible, scattered across the sectors of the electronic medium upon which it is contained.  In that state it is not information in that it does not and cannot inform.

Data in electronic format, as distinct from writing on paper, is dependent upon hardware and software.  The data contained on a medium such as a hard drive requires an interpreter to render it into human readable format.  The interpreter is a combination of hardware and software.  Unlike the paper document the reader cannot create or manipulate electronic data into readable form without the proper equipment in the form of computers.

There is a danger in thinking of electronic data as an object “somewhere there” on a computer in the same way as a hard copy book is in the library.  Because of the way in which electronic storage media are constructed it is almost impossible for a complete file of electronic information to be stored in consecutive sectors of the medium.  Data on an electronic medium lacks the linear contiguity of a page of text or a celluloid film. An electronic file is better understood as a process by which otherwise unintelligible pieces of data are distributed over a storage medium, assembled, processed and rendered legible for a human reader or user.  In this respect “the information” or “file” as a single entity is in fact nowhere.  It does not exist independently from the process that recreates it every time a user opens it on a screen.

Computers are useless unless the associated software is loaded onto the hardware.  Both hardware and software produce additional evidence that includes, but is not limited to, information such as metadata and computer logs that may be relevant to any given file or document in electronic format.

This involvement of technology makes electronic information paradigmatically different from traditional information where the message and the medium are one.  It is this mediation of a set of technologies that enables data in electronic format – at is simplest, positive and negative electromagnetic impulses recorded on a medium – to be recorded into human readable form.  This gives rise to other differentiation issues such as whether or not there is a definitive representation of a particular source digital object.  Much will depend, for example, upon the word processing programme or internet browser used.

The necessity of this form of mediation for information acquisition in communication explains the apparent fascination that people have with devices such as Smartphone’s and tablets.  These devices are necessary to “decode” information and allow for its communication and comprehension.  Thus, the subtext to the description of electronically stored footage which seems to suggest a coherence of data similar to that contained on a piece of paper cannot be sustained.

So why not forget about tangibility and this medium focussed approach to information. Interestingly enough a solution is proposed in the definition in the Bill which contains the following parenthetical remark

(but see Part 4 of the Contract and Commercial Law Act 2017, which provides for meeting written requirements by electronic means)

So what does that say. Simply this

A legal requirement that information be in writing is met by information that is in electronic form if the information is readily accessible so as to be usable for subsequent reference.

Not quite a solution, but getting there. It focusses upon two important concepts that underly any information in writing. First – it must be accessible. Second, there is the concept of utility.

So perhaps a 21st Century medium neutral definition of writing should go something like this

Writing means representing or reproducing words, figures, or symbols in a visible form and in such a format as to be readily accessible and usable for subsequent reference.

There is no need for tangibility. We have moved on from the inextricable message\medium association. But many lawyers and lawmakers seem to be unaware of the unique and paradigmatically different qualities surrounding information in the Digital Paradigm.

 

 

Misunderstanding the Internet

 

I heard an interesting interview on the radio on Saturday last. Kim Hill was interviewing Jonathan Taplin. Taplin has written a book entitled Move Fast and Break Things about the Internet and what is currently wrong with it.

First, a confession. I haven’t read Move Fast and Break Things. What I know about Mr Taplin’s views are what I heard him say on the radio and a report of the interview on the RadioNZ website and what I have to say is based on what I heard on the radio rather than a reading of his book. But it does sound to me that Mr Taplin occupies a space along with a number of other disenchanted by the Digital Paradigm including Andrew Keen who wrote The Internet is Not the Answer, Nicholas Carr who wrote The Shallows and Mary Aiken who wrote The Cyber Effect. A common theme among these writers seems to be that for one reason or another the Internet has lost its way, failed to fulfil its promise or that it has been hi-jacked. This last view is that expressed by Mr Taplin.

I don’t have a problem if that is what he thinks. But I do have a problem with some of his assertions of fact which simply do not stand up to scrutiny. Mr Taplin seems to engage in sweeping generalisations to support his position and then argues from that point. In other cases he misinterprets facts in a way that cannot be supported. But his main problem is that he fails to understand the nature of paradigmatic change and that in such an environment things are not going to remain the same, and old models, ways of doing things, concepts and values are either going to be swept away or are gradually going to be eroded and replaced with something else.

Let us look at some of his early assertions that he made on the broadcast. He claims that the Internet originated as the “hipster” project of a group of people who wanted to decentralise control. “Stewart Brand (author of The Whole Earth Catalog, a book which anticipated the internet) was Ken Kesey’s partner in the acid tests, Steve Jobs acknowledges taking LSD. It was a bunch of hippies” – or so Mr Taplin asserts.

Anyone who has studied the history of the Internet will agree that decentralisation was one of the early goals of the development of the network that later became the Internet, originally undertaken by DARPA – the Defence Advanced Research Projects Agency, an agency of the US Department of Defense. DARPA supported the evolution of the ARPANET (the first wide-area packet switching network), Packet Radio Network, Packet Satellite Network and ultimately, the Internet and research in the artificial intelligence fields of speech recognition and signal processing. Hardly a bunch of hippies. And were Brand, Kesey and Jobs involved in this early development. No they were not. Jobs involvement with the Internet came much later. In 1985 he suggested that the most compelling reason for most people to buy a computer would be to link it to a nationwide communications network. But it wasn’t until 1996 that he predicted the ubiquity of the Web. In 1996 Google was still a research project at Stanford and Amazon had only just begun selling books.

What Mr Taplin conveniently ignores is the enormous contribution made by computer engineers and developers to the development of the Internet – people like Vint Cerf and Bob Kahn, Ray Tomlinson who developed email – although that is contested by Shiva Ayyadurai – Jon Postel, Ted Nelson, Tim Berners-Lee and Robert Caillau.

Rather he focussed upon the high profile and very successful entrepreneurs like Peter Thiel, Larry Page and Jeff Bezos. He suggested that they “all are libertarians. They were schooled on Ayn Rand’s work, in which the businessman hero architect is always impeded by the mob, by democracy, by government, by regulation, and he has to be free.”

My reading of Rand would suggest that there are aspects of libertarianism that are inconsistent with her objectivist views. In fact Ayn Rand has become a whipping girl for those who would condemn the forge ahead entrepreneurial spirit untroubled by regulatory systems or collectivist thinking. True, Rand has had an influence on the right and upon libertarianism although some of her views were atypical of rightwing conservative thought. For example she was pro-choice and an atheist. But Mr Taplin throws Ayn Rand into the mix for perjorative rather than evidential value.

Another interesting comment that Mr Taplin made had to do with data. Here is what the report from RadioNZ said

“The core business of Facebook is creating a giant database of information on 2 billion individual people, says Taplin.

“What is the raw material to manufacture a product? You – your desires. You’re willing to leave everything hanging out there and they’re willing to scrape it and sell it to advertisers. It’s called rent. They’re renting [Facebook’s] database.”

That is a degenerate form of capitalism if it’s capitalism at all, he says.

“It doesn’t create anything, you’re renting. That’s the end of capitalism and the beginning of feudalism.”

And that indeed was how it came across on the broadcast. The problem is that Mr Taplin fails to understand the nature of the Digital Paradigm and how it disrupts current business models. He suggests that the user is the raw material – based upon data that has been left behind. I disagree. The data is the raw material of the new digital product and indeed it does create something – a more thoroughly refined and granular understanding the of the nature of markets. Raw materials are necessary for any product. It is just that the raw material now is data in digital format.

What distinguishes digital data from iron ore (another raw material) is that iron ore is sold by the mining company to the refinery or smelter. Iron ore is like any other traditional form of property. You own it by, among other things, exclusive possession. You sell it and by doing so part with exclusive possession. That vests it in someone else.

Now with digital material you can part with possession of a copy but retain the original. The Digital Paradigm turns the traditional property model on its head. Two people can possess the same item of property. And it is here that the “rent” argument advanced by Mr Taplin falls apart. The rent argument only works if there is one instantiation of the property. The “owner” leases the property – be it land or a car – to the tenant or lessee. The owner parts with possession for a period of time. At a later stage the owner retakes possession – when the tenancy or lease comes to an end. But the owner, during the term of the rental does not have possession of the property.

Remember what I said about digital property – two people can possess the same item. That concept is part of the disruptive effect that the Digital Paradigm has on property concepts. Now to say that data is “rented” is using a concept that does not hold up in the Digital Paradigm. To equate renting data with a form of feudalism – which was based upon an exchange of an interest in land for the rendering of a duty – is historically and legally incorrect. And to say that using data does not create anything ignores the fact that data is the raw material – not the individual – and the data goes to creating a profile for any one of a number of purposes of which market research may be one.

So Mr.Taplin’s analogy – like so many attempts to draw analogies between the digital and pre-digital world – fails.

But there is a bigger picture in that paradigm shifts bring paradigmatic change. The Internet and all those myriad platforms that are bolted on to the backbone have revolutionised communication and have opened up a market for digital products. But the content that the Internet enables is only a part of the story.

To understand the nature of the paradigm we need to look below the content layer and comprehend the medium. For, as McLuhan said, the medium is the message. I am sure Mr. Taplin understands this. But what I think he has difficulty in accepting is that the old ways of doing things are going to be swept away. There will be a period of co-existence of the digital and the pre-digital but that won’t last long. The paradigmatically different properties of exponential dissemination, dynamic information, information persistence, permissionless innovation and continuing disruptive change are all factors built in to the technology and cannot be changed. At the risk of sounding deterministic these and other underlying technological qualities are what will drive the inevitability of change.

The music market with which Mr Taplin was familiar has changed dramatically and part of the problems suffered by the industry and those associated with it involved an unwillingness to adapt. iTunes got the idea and now people buy by the song rather than by the album. Adaptation by content providers means that Netflix thrives – despite geoblocking – on-demand has replace appointment viewing and content providers have finally “got it” that consumer demand is for content now – not next week. Hence “Game of Thrones” and “Walking Dead” are advertised in New Zealand as screening on the same day as in the US. The reason for this – the Digital Paradigm provided alternatives – piracy and Bittorrent.

The reality is that many old business models will have to adapt to survive. Those that do not will fall by the wayside. The new paradigm will usher in new industries and new opportunities. But in the Digital Paradigm, business will be done on a global scale rather than from a local storefront. And the result of that scale is that many new digital businesses will do very well such as Google and Facebook and Amazon. Mr Taplin laments the advantages that these companies have, that their power is unaffected by who is in government. But should successful businesses be a matter of concern. For sure, conspiracy theories will abound; the spectre of rampant capitalism will be conjured up. But isn’t this just envy speaking?

I really think we should be embracing the opportunities that the new technologies bring and look for ways in which we can enhance our lives in the Digital Paradigm rather than moaning about it. Because it is not going away.

New News Opportunities

In the newspaper this morning there were a couple of articles that caused me to reflect on the level of understanding of the Digital Paradigm. The first by respected business journalist Fran O’Sullivan was about the consequences of the refusal of the Commerce Commission to approve a merger of media giant Fairfax and NZME. But the real focus of the article was about the effects that digital businesses are having on established organisations and the inroads that are being made to traditional funding models. The second was about Margarethe Vestager, the head of the Directorate General for Competition. That article was about the importance, at least to the EU, of the philosophy that a well-policed economy yields the largest and most widespread benefit for society. Some of the examples of steps that were taken involved digital economy giants like Apple, Google and Amazon.

By way of a very brief background, the New Zealand Commerce Commission has made a few waves lately by refused approval for two significant attempts by large media companies to merge. The first was Sky and Vodafone – a broadcaster and a communications company. The benefits of the merger for both companies were obvious. Access to a large well developed Internet provider (Vodafone) by Sky. Ability to enhance an established content delivery service with an established customer base (Sky, albeit content delivery methods are outdated but the merger would have changed that) by Vodafone. But no, said the Commerce Commission. For reasons expressed in a 140 + page decision, this was not a good idea.

The second attempt was a proposed merger between news media companies Fairfax (an Australian company) and NZME (publisher of the NZ Herald). Not a good idea, said the Commerce Commission once again, failing to see the dire state of the news media market but concerned that one company might have too much control over content, especially in an election year – conceptually, a lack of diversity in the news media market.

So that is the background. What Fran O’Sullivan complains about is the fact that the Commerce Commission overlooked or understated the impact of digital players like Google and Facebook on advertising revenue, and the effect that this is having on the viability of news media operations. And of course, a viable Fourth Estate is an important and critical feature of a modern democracy – prepared to hold authority to account, prepared to ask to hard questions, prepared to investigate and uncover malpractice of any sort in the corridors of power.

The focus of the article of the EU Directorate for Competition (EUDC) is mistrust of large corporates and one wonders whether or not that mistrust is the starting point or develops from an evidential foundation. Although there is a hat-tip to the market, it seems to me that the EUDC is about policing and control.

But common to both articles and especially to that of Fran O’Sullivan is a concern about the disruptive effects that new technologies are having on commercial activity. From the news media perception the concern is palpable. The old model is under threat. The solution, according to O’Sullivan is to regulate what she described as the oppressive behaviour of the digital corporates. She suggests that it is time that politicians woke up to the problem and cites steps that are being taken in Australia to examine the impact on public interest journalism of search engines and social media as well as an investigation into “fake news”.

The disruptive effects of new technologies have been going on for some time. We are well into the Digital Paradigm, but not so far out of the old pre-digital paradigm to be concerned that the past ways of doing things may not continue. We anchor ourselves in a comfortable past and really do not like change – especially when there are those who have the foresight and initiative to profit from disruptive change.

The news media provides an interesting model because in fact it is the child of the first communications technology paradigm shift – the printing press. I have suggested elsewhere that the Digital Paradigm is at least as significant, especially in the field of communications, as the printing press. And for some time it has been having a disruptive effect. Initially news media answered the new technology by putting news content online. Some providers set up paywalls for content – an attempt to continue to monetise what they were publishing. This is not a bad thing. You have to pay to buy a “kinetic” newspaper. Why not do the same online?

Convergence posed its own challenges as newspapers online began to include video content and broadcasters included text articles among their offerings. The question arises as to which standards apply to whom. Are broadcasters who make text available subject to the Press Council? Are traditional print media who make video available via a website subject to the Broadcasting Standards Authority? Since the Online Media Standards Authority (OMSA) was absorbed into the Press Council it would seem that the Press Council may be the answer to the regulatory convergence problem. The Government missed the opportunity presented to it by the Law Commission in 2013 to have a single media regulatory body – a very bad call in my opinion.

But the regulatory bodies that have been set up deal with content. The Press Council and the Broadcasting Standards Authority don’t deal with struggling or failing business models. The Commerce Commission could indirectly have done so but didn’t.

One option is to try and maintain the existing business model. As O’Sullivan suggests, bring the digital corporates to heel in the same way as the EUDC does. In this way they may not pose such a threat to the established model which may just manage to hang on for just a little while longer. But in preserving the existing model it is necessary to call on the coercive power of government. A protectionist perpetuation of a model that has had its day.

Another option is to recognise that the business models that underpin the news media and so-called public interest news media is the child of a paradigm that no longer exists. Unless the news media adapts it will die. And if this sounds like a call for evolution in the face of revolution – a sort of economic Darwinism – that is exactly what it is. The Digital Paradigm is so fundamentally different from what could be called the print or kinetic paradigm that news media companies are going to have to examine more than just content delivery but realise that they must examine, understand and utilise the underlying qualities of the new paradigm to develop their business models. And that takes a lot of thinking outside the box and a willingness to start again from scratch.

The result may be an entirely different method of news dissemination – not local but global. Multinational media companies are not unknown, even now but the business model and the way that business is conducted may be radically different from, say, Newscorp.

The third way may be based on the adage “if you can’t beat’ em, join ‘em” One of the targets of the EUDC has been Amazon. Amazon’s founder and CEO is Jeff Bezos. And Jeff Bezos bought the Washington Post for $250 million – and turned a legacy news media organisation around. Perhaps those who are concerned that the digital corporates are posing a threat to current news media business models should rather view them as an opportunity for change.

Ariadne’s Thread – The Labyrinth of the Dotcom Extradition Case

Now, before Daedalus left Crete, he had given Ariadne a magic ball of thread, and instructed her how to enter the Labyrinth. She must open the entrance door and tie the loose thread to the lintel; the ball would then roll along, diminishing as it went and making, with devious turns and twists, for the corners where the Minotaur was lodged.[1]

 

Introduction

This post considers the appeal against the findings by Judge Dawson in the District Court that Mr Dotcom and his co-appellants were eligible for extradition. The article attempts to explain in plain terms some of the legal issues surrounding the case. One of the main issues was whether or not the offences alleged were extraditable. But a word of caution – perhaps an apologia. This article is not a full academic treatment of the decision. It is an overview and an attempt to explain in straightforward terms a part of a somewhat complex decision.

It was necessary for the Court to consider the indictment that had been proferred in the United States and the charges which the accused appellants were to face in that country and determine whether or not they amounted to extraditable offences for the purposes of the Extradition Act 1999.

There were a number of “overlays’ in that not only did the Court have to consider the Act but also the provisions of an Extradition Treaty between New Zealand and the United States which came into force in December 1970. Article II of that Treaty set out sets of offences which were extraditable and which were particularly relevant in this case. Throughout the decision the question of whether or not the conduct was sufficient to engage Article II.

A further overlay was in the provisions of section 101B of the Extradition Act. That section was inserted by the Extradition Amendment Act 2002 in response to the United Nations Convention Against Transnational Organised Crime (UNTOC). That section has the effect of deeming various offences to be extradition offences under existing treaties with foreign countries that are parties to UNTOC. This applies to the 1970 US/NZ Treaty. The deemed offences include an offence involving participation in an organised criminal group.

What the Court Had to Do

The Court had to determine whether the offences contained in the United States indictment were extradition offences under section 24(2)(c) of the Extradition Act.[2]

First, the Court had to identify the factual allegations that underpinned each count. Then it had to consider whether the totality of those alleged acts of omissions came within the description of an extradition offence for the purposes of the Treaty.

In such an exercise Gilbert J reminded himself that he should not take a narrow view by concentrating on nomenclature or the constituent elements of the offence. He recognised that generically offences may be similar although they may be articulated using different language.

Instead he noted that the Treaty was to be interpreted in accordance with cl 31(1) of the Vienna Convention on the Law of Treaties. This provides:

(1) … a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Furthermore, he observed that it does not matter that the offence charged by the requesting State (in this case the United States) may contain additional elements beyond those implicit in an Article II offence so long as the additional elements do not substantively change the nature of the conduct alleged.

The Charges

The important counts in the indictment involved allegations of copyright infringement. Count 2 alleged conspiracy to commit copyright infringement. Counts 4 to 8 alleged specific instances of copyright infringement. These offences of criminal copyright infringement were the foundation for other charges. Without criminal copyright infringement these other charges could not be sustained. Thus in the decision the Judge considered these predicate criminal copyright allegations first.

The other counts were racketeering (count 1), money laundering (count 3), and the wire fraud charges (counts 9 to 13).

In the argument the United States contended that there were pathway offences in New Zealand law which could be followed to ascertain whether the acts or omissions constituting those offences amounted to an extradition offence. It is not necessary for the extradition offence to match the offence stated in the indictment of the requesting State. Rather there must be, as I have stated, generic similarity.

I shall now proceed to consider the counts in the indictment and how the Court determined whether or not there were qualifying extraditable offences or “pathways” to the Count in question[3].

COUNT 2 – Conspiracy to Commit Copyright Infringement[4]

Pathway Offences

The Court considered a number of different offences under New Zealand law which were pathways to the count in the indictment alleging conspiracy to commit copyright infringement. In doing so the Court considered the applicability of certain offences in the Crimes Act that did not directly address copyright infringement but where the behaviour might involve that include that activity.

Conspiracy to Defraud[5]

Conspiracy to defraud was an offence that was stated in Article II.16 of the Extradition Treaty.

The issue in considering this count was whether the crime of conspiracy to defraud could include behaviour that involved copyright infringement. The Court held that it could and cited considerable authority in support of its finding.[6] It was argued that the Copyright Act was a code but in light of the authority cited, the Court rejected that argument, although it should be noted that the authorities cited are quite nuanced on this point[7]. However, the issue becomes a contentious one when sections 228 and 249 of the Crimes Act come into play along with the foundation of Dixon v R[8] which is discussed below.

The Court considered whether the elements of conspiracy to defraud were present in this case[9] and stated that  wilful infringement of copyright can properly be characterised as a dishonest act. Such infringement deprives the copyright holder of something to which it might be entitled. The money obtained through participation in the alleged conspiracy to defraud any person – that is to cause the copyright holders economic loss by depriving them of something to which they might be entitled – by fraudulent means (intentional infringement of copyright) is the allegation in Count 2 which is sustained.

It was argued that the safe harbour provided by section 92B and 902C of the Copyright Act provided relief. Although the Court held that the safe harbour was not engaged in this case the discussion of the distinction between the scope of 92B and 92C and the general observations on the availability of the safe harbour provides a useful guide for the scope of these sections.

That would have been enough to dispose of the matter in that by using the conspiracy to defraud pathway it was found to be an extradition offence within Article II.16.

However, it was necessary to consider other pathways given the fact that the matter would go on appeal.

Dishonestly Taking or Using a Document – s. 228 Crimes Act[10]

In his discussion of Article II.16 and the state of the Crimes Act at the time of the Extradition Treaty, Gilbert J considered the applicability of the former section 257 of that Act. Section 257 has been replaced by section 228 which involves dishonestly taking or using a document with intent to obtain property, a service, pecuniary advantage or any other benefit.

The first consideration was whether a digital file can be a document. That is in fact the case and is clear from the definition in s. 217 Crimes Act and affirmed in Dixon[11]. This is not a contentious proposition.

The Court then restated the proposition that wilful infringement of copyright can amount to an act of dishonesty – that is an act done without a belief that there was express or implied consent to, or authority for, the act from a person entitled to give such consent or authority (the copyright owner).

It was argued that s.228 of the Crimes Act did not mention copyright but for the reasons given in the extensive discussion of the availability of the Crimes Act to encompass infringing behaviour in certain circumstances in support of the conspiracy argument it mattered[12]  not that copyright in a document (a digital file) is not singled out in the section.

The Court observed that although Megaupload was a cyberlocker it still made use of copyright infringing material in storing the files and making them available to generate advertising and subscription revenue. Use was not an essential element of the offence but obtaining a document for pecuniary advantage was, and the definition of “obtain” includes retaining. Therefore it was enough for Megaupload to retain the files on its servers the fulfil the requirement of “obtaining”

The particular conduct was undertaken for the purposes of pecuniary gain and thus the conduct in Count 2 is covered by s. 228 and is deemed to be included in the Treaty and the requirements of s. 101B(1)(c) are made out. In that section 228 is an offence punishable by a term of imprisonment of seven years.  Finally, it was noted in the interests of completeness that the appellants were in New Zealand.

The next associated issue was whether or not there was an organised criminal group.[13] This involved a consideration of the provisions of section 101B(1)(c)(ii) of the Extradition Act. The elements that are required – combining the UNTOC definitions of an “organised criminal group” and “serious crime” are as follows:

 

(a) a structured group;

(b) of three or more persons;

(c) existing for a period of time;

(d) acting in concert;

(e) with the aim of committing;

(i) offences established in accordance with UNTOC; or

(ii) a serious crime, being conduct constituting an offence punishable by imprisonment of four years or more;

(f) in order to obtain financial or material benefit directly or indirectly.[14]

The Court was satisfied that all these elements were fulfilled and there was sufficient evidence to support all the allegations together with the fact that copyright infringement in the US carried a maximum penalty of 5 years thus fulfilling that requirement and on that basis s. 228 provided an extradition pathway.[15]

Accessing a Computer for a Dishonest Purpose – s. 249[16]

Section 249 of the Crimes Act makes it an offence to access a computer and dishonestly or by deception and without colour of right obtain any property, privilege, service, pecuniary advantage, benefit, or valuable consideration or cause loss to any person. This section was considered as a pathway offence to Count 2 in the following way.

For the same reasons as those given in respect of s. 228, the allegation of dishonesty as an element of s. 249 was satisfied by wilful infringement of copyright.

It was argued that there was no access of a computer system – rather merely providing a computer facility for others which could be used lawfully or unlawfully. The issue of access was dealt with in this way. The data (the copyright infringing file) was received from the uploader onto Megaupload’s computer system, stored in that system and made available to others to access using the link provided by Megaupload using the computer system[17]. All of this involved making use of the resources of the Megaupload computer system. This fulfilled some of the elements of the definition in section 248 of the Crimes Act to which reference was made – “access, in relation to any computer system, means instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system.”

It was also held that the purpose of such access was to obtain pecuniary advantage or financial gain, thus fulfilling that element of s. 249 and the penalties brought the offence within the 4 year definition of serious crime for the purposes of s. 101(B(1)(c).

It is important to note that the discussion of section 249 at this stage is very narrow indeed and suggests that the sectioncan be used as an alternative to commercial copyright infringement. There was no discussion of the nature of “property” and whether a computer file amounted to property as held in Dixon. Further use of section 249 and Dixon in the context of other sections of the Crimes Act is considered in the context of the wire fraud charges.

Section 131 Copyright Act[18]

Section 131 of the Copyright Act creates criminal liability for certain types of copyright infringement that have a commercial quality. The question was whether or not the appellants were involved in the exhibition in public or distribution of infringing copies.

At first glance it would seem that distribution would encompass the activities of Megaupload. The difficulty was that there was another specific form of infringement that covered digital material and that was what is known as the communication right.

The communication right and the distribution right are differentiated in the World Intellectual Property Organisation (WIPO) Copyright Treaty 1996. The Treaty recognises the important distinction between dissemination by the transfer of possession of a physical embodiment of a protected work (distribution) and dissemination through electronic transmission (communication). Fundamental to the distribution right is the necessity for a tangible object.

In New Zealand the communication right was incorporated into Statute by the Copyright (New Technologies) Amendment Act 2008. But the provisions of section 131 were not amended to include a breach of the communication right as a form of commercial criminal copyright infringement.

This was not accidental. There were submissions to Parliament that the communication right be incorporated into section 131 from Microsoft and the Motion Picture Association. Indeed the legislation in the United Kingdom incorporated such a provision but New Zealand chose not to follow.

In addition as a further indication that Parliament did not intend to criminalise the commercial infringement of the communication right, section 198 created a criminal offence of dealing in illicit recordings of performances rather than objects which were infringing copies of a copyright work.

The Copyright Act was again reviewed in 2011 when Parliament enacted the Copyright (File Sharing Infringing) Amendment Act 2011. It did not at that time take the opportunity to include a breach of the communication right in section 131.

Thus section 131 relates to tangible objects rather than communication of intangibles such as digital files and was thus not available as a pathway to Count 2 of the indictment.

This was not an unexpected outcome, at least to this commentator, but creates a contradiction. When the search and provisional search warrants were issued the offence alleged was against section 131 of the Copyright Act. Now it transpires that offence was not available. In a case that has not been without its legal controversies, this is one more.

However, the absence of section131 as a pathway does not end the matter. There were, as has been discussed,  other pathways to Count 2 and there were other counts which will be considered, all of which have their own pathways.

 

Count 4 – Copyright Infringement of the Movie “Taken”[19]

This count alleges that the appellants infringed copyright by distributing a work – the movie Taken) being prepared for commercial distribution in the US.

The Court concluded that neither this nor any of the specific infringement allegation contained in Counts 4 – 8 contained any other elements described in Article II.16 of the Treaty. They were not charged with obtaining property or money and the offending did not match the offending set out in Article II.16

However, the offence did correlate with sections 228 and 249 of the Crimes Act. The requirement of both sections that there be an element of commercial advantage or financial gain were both satisfied. They obtained and used a document – a digital file – dishonestly and without claim of right and this involved accessing a computer which is an element of section 249. In addition the Court considered that the appellants were acting as part of an organised criminal group and on that basis section 101B(1)(c)(ii) was satisfied

 

Counts 5 – 8 – Other Copyright Infringement[20]

In these counts the nature of the infringement alleged was different. Wilful reproduction and distribution of copyright protected works with a total retail value of more than $US2500 was alleged.

Once again section 131 was not available as a pathway and nor was Article II.16. However, the Judge held, for reasons already articulated, that sections 228 and 249 of the Crimes Act are available to fix the conduct alleged with the necessary criminality.

 

 Count 3 – Conspiracy to Commit Money Laundering[21]

Critical to this count was the necessity of a finding that there were pathways to the copyright allegations. Those pathways having been found the way was open to consider this count since it was predicated on the availability of copyright offences.

The Court analysed the elements, pointing out that money laundering was not an offence in New Zealand when the Treaty was signed in 1970. However, the Treaty did contain in Article II.19 the inclusion of any offence in addition to the listed offences that “transporting” or “transportation” was an element.

The Court observed that there were transfers of money – the proceeds of copyright infringement – by electronic funds transfer. This was in effect a wire transfer and the Court held that the conveying of funds electronically amounted to a transfer and thus Article 11.19 was engaged and thus the offence was an extradition offence.

Counts 9 – 13 – Wire Fraud[22]

There were a number of allegations made by the United States that supported an allegation that the appellants devised a scheme to defraud copyright owners and obtain money by means of false and fraudulent representations and promises. Some of these included misleading copyright owners that access to a file would be disable when in fact only the link was disabled; falsely representing that repeat  infringers had access terminated when in fact they were allowed to continue infringement and were rewarded for it and misrepresenting the Megaupload abuse tool and their notice and takedown procedure.

The US argued that Article II.16 and sections 228, 240 and 249 provided pathway offences for these counts.

 

Pathway Offences for Wire Fraud

Article II.16

The Judge found that the conduct alleged in these counts corresponded to Article II.16 of the Treaty. It was alleged that the appellants obtained money as a result of false representations. That is another way of saying they received money by false pretences . This allegation satisfied the causal nexus between obtaining money and false pretences.

In addition the counts alleged the money was obtained by a conspiracy to defraud the copyright holders, the essence being that they devised a scheme to defraud copyright holders. That is tantamount to an allegation of conspiracy to defraud and thus article II.16 provided an extradition pathway.[23]

Section 228 – Crimes Act[24]

It was conceded that the emails that were sent to copyright owners in furtherance of the allegedly fraudulent scheme were documents.  Although it was argued that it was necessary to establish that the document had to be used to obtain property or money and that the files were already on the Megaupload system – thus no obtaining. The Judge observed that the definition of obtain meant to obtain or retain. In addition the Judge found that the requirements of s. 101B(1)(c) were satisfied in that the offence was punishable by imprisonment of 4 years or more and involved an organised criminal group. Thus section 228 provided an extradition pathway.[25]

Section 240 Crimes Act[26]

Section 240 of the Crimes Act 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, as discussed above.

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[27] – a 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, and in doing so has introduced a level of uncertainty in the law surrounding the issue of whether or not there is a property right in information. It is my contention – and I have argued it in detail elsewhere – that Dixon was wrongly decided and is both legally and technologically unsound. Nevertheless, until the Supreme Court reconsiders its decision it must stand. However, the scope of the holding, on a strict reading of the decision, is that a digital file is property is limited to the provisions of section 249 of the Crimes Act.[28] The Supreme Court held thus, and to expand the scope of the finding to include digital files as property for offences other than under s. 249 is, in my respectful view, a misinterpretation of Dixon.

But the Court found that s. 240 of the Crimes Act provided an available pathway for the wire fraud counts.

Section 249 Crimes Act[29]

Section 249 of the Crimes Act provided an available pathway for some of the other counts. As far as counts 9 – 13 are concerned it was argued that the purpose of the section was to address computer hacking rather than to cover dishonest acts associated with copyright infringement.

The judge answered this by observing that the definition of a computer system was very broad and included using any of the resources of a computer system. Email plainly fell within that broad scope.

The Judge could also have observed that computer hacking was not the target of section 249 because it did not include unauthorised access to the system as an element of the offence. The important element associated with accessing the computer system is a dishonest or deceptive state of mind associated with certain activities such as obtaining property, a privilege, a service, a pecuniary advantage, a benefit or an advantage.

The behaviour of the appellants that brought them within the scope of section 249 was as follows:

  1. They caused knowingly false responses to be sent to copyright holders in response to takedown notices
  2. To do this they accessed the Megaupload computer system
  3. As a result of accessing the system in this way they thereby dishonestly and by deception and without claim of right obtained a benefit. The benefit was that it enabled Megaupload to retain copyright infringing files on its system. This met the causal connection of accessing the computer system and obtaining a benefit.

 

It is of interest that Gilbert J preferred to focus on the benefit aspect of section 249 rather than that of property, this invoking Dixon within the context of the Supreme Court finding of the fact that a digital file is property. His focus on the benefit aspect accords with the holding of the Court of Appeal in Dixon.

Count 1 – Conspiracy to Commit Racketeering[30]

Racketeering involves an enterprise – that is a group of individuals and entities associated in fact – engaged in interstate and foreign commerce where the members of the enterprise conspired to conduct its affairs for the purposes of enriching themselves through racketeering activity – in this case criminal copyright infringement, money laundering and wire fraud.

Pursuant to the decision of the Court of Appeal in US v Cullinane[31] racketeering was held not to be an offence under Article II of the Treaty. Racketeering was described as an “umbrella” crime and the Court warned against the use of allowing extradition for umbrella crimes where the offences, if charged separately, would not amount to extradition offences.

However, Cullinane was decided before the enactment of s. 98A of the Crimes Act which creates the crime of participating in an organised criminal group as well as s. 101B(1)(a) of the Extradition Act. This allowed the Court to reconsider whether or not racketeering could fall within the scope of an extraditable offence.

In essence the allegation was that the appellants were associated in fact and this amounted to an enterprise under US law. It was alleged that they continued as a functioning unit for the common purpose of achieving the objectives of the enterprise which was to enrich its members through criminal copyright infringement, money laundering and wire fraud. Furthermore they all actively participated in the enterprise.

The Judge found that the constituent offences – criminal copyright infringement and wire fraud – correlated to New Zealand offences punishable by at least 4 years imprisonment. The common purpose in the US indictment correlated with the requirements of section 98A of the Crimes Act which, if it had occurred in NZ, would be an extradition offence.

 

Extradition Offences – Conclusion

The result of the Judge’s analysis was that all the counts in the indictment were held to qualify as extradition offences.

One of the very significant aspects of the decision is the way in which provisions of the Crimes Act have been used to provide pathways to copyright infringement. This doesn’t mean that these offences are pathways to only extradition offences, although that it the way that they have been used in this case. The generalised holding means that there are alternatives means of criminalising copyright infringement apart from the provisions of section 131 of the Copyright Act 1994.

The citation of authority by Gilbert J to suggest that for some time criminal offences have been available to address copyright infringement cannot be displaced. In some cases these comments were speculative[32] –in others they were more direct.[33] The decision of Gilbert J now cements these comments into the structure of the law.

This means that copyright owners have different avenues by which they may pursue infringers in the criminal courts where section 131 is not available. Furthermore, while Dixon is still good law, copyright owners may use the provisions of the Crimes Act (given Gilbert J’s wide interpretation of that case) or at least section 249 to pursue infringers for what is effectively “on-line theft” of copyright material. I commented that when it was decided potentially the holding in Dixon could give truth to the mantra “copyright infringement is theft”. That potential has been realised.

Other Aspects of the Extradition Decision

The principle focus of this examination has been upon the identification of the extraditable offences. Given the focus upon the availability of criminal copyright infringement this analysis, although a summary of the decision without reference to the authorities cited, has been undertaken to understand the process by which the identification of extraditable offences was undertaken. However, as far as the case was concerned there were other issues which I shall tough upon briefly.

Evidence to Justify Trial on Each Count[34]

Because of the provision of the Extradition Treaty the United States was entitled to submit a record of the case (ROC) for the purposes of determining eligibility for surrender. There was considerable criticism of the ROC by the appellants. It was suggested, for example, that the ROC contained commentary that was opinion or hyperbole which the Court should ignore in determining sufficiency of evidence.

In the case of Dotcom v US (Disclosure)[35] the nature of the ROC was considered. Glazebrook J agreed that there were conclusory statements in the ROC but that the evidence that was relied upon was set out and that evidence supported the conclusions and inferences that the United States wanted to draw to support the existence of a prima facie case. There was a recognised risk in this process in that if insufficient material was provided, the extradition judge not be satisfied that a prima facie case had been made out.

The mere fact that the ROC and its supplements may contain material that cannot be relied on as evidence does not render the document inadmissible in its entirety. The Judge conducting the eligibility hearing  would have to ensure that there is sufficient summarised evidence to justify each appellant being committed for trial on each extradition offence. In carrying out this function, the Judge will differentiate between what qualifies as a summary of evidence and what does not. Gilbert J observed that The Court is required to determine whether the evidence that is summarised in the record of the case is sufficient to establish a prima facie case. The Court is not excused from this responsibility merely because some of the material in the record of the case does not qualify as summarised evidence[36].

Preservation of Evidence[37]

There was concern that the evidence that had been gathered and its availability might be in question. There was an additional concern about the possible deterioration of the electronic evidence. The Judge noted

“It is for the requesting State to decide what evidence it will rely on to support its request for extradition. The extradition Court is only concerned with whether this evidence is sufficient to justify a trial if the conduct constituting the offence had occurred within the jurisdiction of New Zealand. This will be the case if the Court is satisfied the summarised evidence is sufficient to establish a prima facie case and this evidence has been preserved for use at trial. “The evidence” in s 25(3)(a) plainly refers to the evidence summarised in the record of the case and not to every piece of evidence that has been reviewed in the course of the investigation or which could be relevant at trial. If the appellants’ argument was right, it would mean that if any of Megaupload’s data was lost, no matter how inconsequential for the purposes of a

committal hearing, the entire record of the case would become inadmissible. That

cannot have been what Parliament intended when enacting s 25(3).”[38]

 

No challenge had been made to the statements that the evidence summarised in the ROC had been preserved for use at trial. It was not a matter of concern for the extradition court to enquire as to whether other evidence had been preserved. That was something that would be evaluated in the context of fair trial issues in the requesting state and it would be contrary to the principle of comity upon which extradition is based for an extradition court to trespass into this domain.

Other Matters

There were a number of other matters of a somewhat technical nature that were raised on behalf of the Appellants. One involved the certification of the ROC by a representative of the US Attorney General’s office a Mr Prabhu.

The purpose of the ROC procedure was to summarise the evidence. Detail was not required. The ROC process is based on the Treaty and the comity and trust between the Treaty partners. In that regard the ROC need not contain briefs, “will say” statements or other documentary proof.

Because the ROC is received the Court requires an appropriate assurance that it discloses the existence of evidence sufficient to justify a trial in the exempted country and the evidence relied on for extradition purposes has been preserved for trial.  The Court observed:

“The purpose of the record of the case is to enable the extradition Court to

determine whether the evidence establishes a prima facie case if the conduct

constituting the offence had occurred within the jurisdiction of New Zealand. This

determination is made according to New Zealand law. The extradition Court in

New Zealand is not concerned with whether the evidence is sufficient to justify a

trial in the exempted country and it would be wholly inappropriate for it to enquire

into this. Parliament intended that the extradition Court would rely on a certificate in proper form from a person qualified to give it. Absent cogent evidence showing that such a certificate is a forgery or has been given in bad faith, the extradition Court cannot look behind it.”[39]

 

There was also concern expressed about the weight and sufficiency of evidence and the fact that there were a number of conclusory statements in the ROC. Although this matter had been earlier adverted to, it was conceded that such statements did not assist the Court in carrying out its fundamental obligation of weighing the evidence to determine whether the appropriate threshold had been reached. It was for the extradition court to carry out the evaluative process.[40]

Another argument arose about the question of transposition.[41] Transposition arises in extradition cases because the extradition Court is required to proceed on the basis of the fiction that the relevant conduct constituting the offence had occurred within its jurisdiction. But the focus of the extradition Court under the Act is on the conduct constituting the alleged offence, not the offence itself.[42]

Once the Court is satisfied that the request relates to an actual extradition offence there is no need to consider whether the conduct constituting the offence in the requesting state would be an offence under the law of New Zealand if the conduct had occurred here.[43] Thus the extradition Court should not have to determine whether or not conduct constituting the offence would have been an offence under New Zealand law if it had occurred in New Zealand at the relevant time. To do so would be to import a double criminality requirement and that was held not apply in Cullinane.

Within the context of the allegations relating to the movie Taken Gilbert J held that the extradition Court was solely concerned with the alleged conduct constituting the offence, namely that the appellants wilfully infringed those rights by making the film available to members of the public on a computer network.[44]

Thus for the purposes of its determination under s. 24(2)(d)(i) of the Extradition Act the Court had to concentrate on the acts or omissions of the requested person, being those acts or omissions identified for the purposes of s 24(2)(c) as constituting the extradition offence.

In a case involving alleged copyright infringement by making a copyright protected work available to members of the public without licence, the question of whether or not copyright subsisted in the relevant work in the United States at the relevant time is not an act or omission of the requested person and falls outside the scope of the enquiry. The extradition Court is not required to determine this issue, which would necessitate consideration of foreign law, a task it is ill-suited to undertake. The existence of copyright in the works at the time is a circumstance or “state of things” that is transposed to New Zealand as part of the relevant legal environment against which the evidence of the requested person’s conduct must be assessed.[45]

The Judge went on to consider in some detail the evidence as it related to each of the offences[46] and concluded that the evidence contained in the ROC disclosed a prima face case on each count. This effectively disposed of the extradition issue. It should be noted that there were a number of other technical arguments that were raised and which I will not discuss in this context. In addition there were applications that were made by the appellants for a stay of proceedings on the grounds of unfairness arising from lack of funds to properly mount an opposition to the application and for judicial review of the approach by the Judge in the District Court to the conduct of the proceedings. Those matters, although tied in with the original proceedings do not take the issue of extradition any further.

Conclusion

This case is a helpful one for those involved in extradition law. The Judge carefully articulated the principles and outlines and defined the processes by which extradition cases should be approached and considered. Although the Law Commission has released a paper on Extradition and recommends possible changes that can be made to the law, it may well be some time before those recommendations, or any of them, find their way to the statute book. The methodical approach undertaken by Gilbert J provides Ariadne’s thread for judges who will have to consider extradition in the future.

The case is particularly significant for the way in which Gilbert J considers the conduct that is criminalised by the counts in the US indictment and then looks for various pathway offences in New Zealand law which mirror that conduct.

The problem was that the United States case was grounded primarily upon copyright infringement. It tried to invoke section 131 of the Copyright Act as a corresponding offence at New Zealand law. But for the reason that a particular type of infringement was not specified in s. 131 – the communication right – that section was not available. So the judge went looking for other pathways which could incorporate the behaviour or conduct that reflected the count in the indictment. In so doing he held that the provisions of sections 228, 240 and 249 of the Crimes Act could, in cases involving certain types of behaviour, provide alternative pathways to what is effectively copyright offending.

This is somewhat curious because notwithstanding the invocation by the Judge of a number of authorities that supported the extension of the criminal law to include certain types of infringing behaviour, the issue is by no means uncontroversial and there are those who argue that the Copyright Act is a code, dealing with interference with a statutorily created property right, and one should not go beyond that legislation to seek a remedy.

Indeed, in his consideration of the applicability of section 131 the Judge gave a detailed analysis of the history of the legislation to demonstrate that the omission from section 131 of the communication right was deliberate and not an accidental oversight. Thus it was clearly a policy decision made by the Legislature.

Yet this case judicially extends the scope of the Crimes Act to include behaviour that would otherwise be caught by the civil infringement provisions and which is not caught by section 131. With respect, this seems to fly in the face of his careful analysis of Legislative intent in terms of criminal copyright infringement.

In Stevens v Kabushiki Kaisha Sony Computer Entertainment Ltd[47]  at issue was the question of the interpretation of a provision of Australian copyright legislation. The High Court cautioned against Courts getting involved in making policy decisions about legislation which was properly the bailiwick of Parliament. The Court observed

“The Parliament having chosen such an elaborate and specific definition for the key provision of the legislative scheme, a court should pause before stretching the highly specific language in order to overcome a supposed practical problem.”[48]

 

Although that comment is directed towards a particular provision of legislation and the scope thereof, it is suggested that the argument can be extended to address the criminalisation of infringing behaviour that does not fall within the scope of the Copyright Act. Using the Judge’s own reasoning path, if Parliament had intended such behaviour to be criminalised, it would have said so, and indeed had ample opportunity to do so from 1998 onwards.

The difficulty is this. It appears that the law of unintended consequences has resulted in the criminalisation of certain types of infringing behaviour. Factor in the use of a computer and s. 249 of the Crimes Act comes in to play. I doubt it was intended that this section would be used to criminalise copyright infringement. Nor is it my view that the Supreme Court in its expedient decision in Dixon expected that its definition of “property” as a digital file could have criminal copyright infringement consequences. This is what I have called else where a Collision in the Digital paradigm.

The collision assumes  greater proportions when one realises that, although Gilbert J’s findings were within the context of developing pathways for the purposes of identifying an extraditable offence, his interpretation applies with equal force to domestic law. The question now becomes one of whether copyright owners will pick their way through the collision and seek Police assistance in prosecuting individual acts of copyright infringement that fall outside s. 131. The matter requires legislative consideration.

Gilbert J’s decision will not be the final word on the subject – indeed he acknowledges this and it explains why the decision is so detailed, complex and voluminous. He is writing for the appeal court as well as for the parties. But the appeal pathways are not that straightforward. A strict approach to the appellate process means that not all these cases will automatically end up in the Supreme Court. As matters stand the Court of Appeal is the final court for the extradition matter. However, the judicial review proceedings do still have an appeal pathway to the Supreme Court. Whether or not the Supreme Court, for the sake of convenience, decides to grant special leave to appeal the extradition side of the case, remains to be seen.

But wait – do I hear you say? Aren’t you assuming something here and that is that there WILL be appeals. Given the past conduct of the parties, I suggest that it is inevitable that the appeal process will go as far as it possibly can. Although the US effectively “won” before Gilbert J there remains the issue of the applicability of section 131. My view is that path was never available but I have no doubt that the US will cross-appeal that aspect of the decision. The Dotcom case has further contributions to make to the development of legal principle in the Digital Paradigm.

 

[1] Robert Graves The Greek Myths “Theseus in Crete”

[2] Ortmann & Ors v US [2017] NZHC 189 at paras [37] – [45].

[3] The “Ariadne’s Thread” of the title.

[4] Ortmann above n. 2 at paras [57] – [192].

[5] Ibid. at paras [77] – [133].

[6] Ibid. at paras [87] – [112].

[7] See for example World TV Ltd v Best TV Ltd (2005) 11 TCLR 247.

[8] [2015] NZSC 147; [2016] 1 NZLR 678.

[9] Ortmann above n 2 at para [132].

[10] Ibid. at paras [134] – [160].

[11] Above n. 8.

[12] Ortmann above n.3 at para [143].

[13] Extradition Act s. 101B(1)(c)(ii) as defined in the Transnational Organised Crime Convention (TOC).

[14] Ortmann above n. 3 para [150].

[15] Ibid. para [160]. The full analysis is contained in paras [147] – [160].

[16] Ibid. paras [161] – [168].

[17] Ibid. at para [166].

[18] Ibid para [169] – [192].

[19] Ibid. para [193] – [199].

[20] Ibid. para [200] – [201].

[21] Ibid. para [202] – [212].

[22] Ibid. paras [213] – [230]

[23] Ibid. para [217] – [219].

[24] Ibid. para [220] – [222].

[25] Ibid. para [220] – [222].

[26] Ibid. para [223] – [225].

[27] Above n. 8.

[28] Dixon above n. 8 para [50] – [51].

[29] Ortmann above n. 3 para [226] – [230].

[30] Ibid. para [231] – [238].

[31] [2003] 2 NZLR 1 (CA).

[32] See Cooke P in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461

[33] See Scott v Metropolitan Police Commissioner [1975] AC 819 (HL)

[34] Ortmann above n. 3 at paras [239] – [245]

[35] Dotcom v US (Disclosure) [2014] NZSC 24; [2014] 2 NZLR 629.

[36] Ortmann above n 3 at para [253].

[37] Ibid. para [254] – [259].

[38] Ibid at para [258].

[39] Ibid. at para [263].

[40] Ibid at para [273].

[41] Ibid at paras [274] – [294].

[42] Ibid at para [277].

[43] Ibid at para [279].

[44] Ibid at para [291].

[45] Ibid at para [294].

[46] Ibid at paras [302] – [386].

[47] [2005] HCA 58.

[48] Stevens v Sony at para [204].

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

Introduction

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

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

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

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

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

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

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

The Clean Slate Act

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

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

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

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

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

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

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

The Effect of the Clean Slate

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

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

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

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

Publication and the Clean Slate

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

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

If the person requires or requests that an individual—

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

then a finable offence is committed.

The Right to be Forgotten

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

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

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

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

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

Privacy Concerns

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

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

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

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

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

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

 Concluding Thoughts

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

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

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

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

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

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

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

Further Obscurity on the Internet – Collisions in the Digital Paradigm VIII

 

Introduction

Yet again a Court of law has made an order against Google, requiring it to deindex search results in a particular case. This example does not deal with the so-called “right to be forgotten” but with issues surrounding efforts by one company to infringe the intellectual property rights of another. But Google’s involvement in this case as not as a party to the action. They were not involved. No wrongdoing by them was alleged. All they did was provide index links via their automated processes. These links were to the infringers. An injunction was sought to compel de-indexing not just in the country where the case was heard but world wide.

Equustek v Jack

Equustek v Jack came before the British Columbia Supreme Court in 2014. The circumstances of the case were these.

Equustek manufactured electronic networking devices for industrial use.  A company named Datalink created a competing product. Equustek claimed that one of its former employees conspired with Datalink, and the competing product used Equustek’s trade secrets and trademarks.

Equustek commenced proceedings against Datalink and a number of individual defendants.  The Datalink defendants did not play any part in the litigation and their defences were struck out but they continued to sell products from a number of websites.

Pending trial the Supreme Court made a number of interlocutory orders against the defendants including an  order prohibiting the defendants from dealing with Equustek’s intellectual property. Even the issue of a criminal arrest warrant against one of the defendants did not stop the sale of the disputed products on the web from undisclosed locations.

So far the case is procedurally unremarkable. But what happened next is quite extraordinary. Equustek turned to Google and asked it to stop indexing the defendant’s websites worldwide. Google voluntarily removed 345 URLs from search results on Google.ca. But the problem remained. Almost all the infringing material was still available online. So Equustek took the matter a step further.

Remember, Google was not a party to the original suit. They had not been involved in the allegations of intellectual property infringement . Google’s response to Equustek’s approach was a co-operative one. They did not have to comply with Equustek’s request.

Equustek sought an order from the Court restraining Google from  displaying any part of the websites with which it was concerned on any search results worldwide. The order was in the nature of an interlocutory injunction. The grounds for the application were that Google’s search engine facilitated the defendants’ ongoing breach of court orders.

Google argued that the court did not have jurisdiction over Google or should decline jurisdiction, In any event it should not issue the requested injunction. The Court observed that the application raised  novel questions about the Court’s authority to make such an order against a global internet service provider.

The court held that it had jurisdiction over Google because Google, through its search engine and advertising business, carried on business in British Columbia. This in itself is not remarkable. It is consistent with the theory of connection with the forum jurisdiction and the concept of the grounding of activities in the forum state that gives rise to  a Court’s jurisdictional competence. Cases abound arising from e-commerce and Internet based business activities.

The court considered that Google’s search engine websites were not passive information sites, but rather were interactive and displayed targeted advertisements. The court noted that this rationale might give every state in the world jurisdiction over Google’s search services, but noted that was a consequence of a multinational doing business on a global scale rather than from a flaw in the territorial competence analysis.

Again this is a reality of jurisdictional theory. In the Australian defamation case of Dow Jones v Gutnick it was observed that a cause of action might lie in every country where publication of the defamatory article had taken place. Mr Gutnick undertook to commence only in Australia because that is where his reputation lay and needed to be vindicated.

The court also refused to decline jurisdiction over Google, because Google failed to establish that another jurisdiction (California) was a more appropriate forum and the court could effectively enforce its order against Google outside Canada. This is what is called a forum conveniens argument – it will arise in the context not of whether or not a court has jurisdiction but where jurisdiction may lie in two states (in this case British Columbia, Canada and California, United States of America) which court should properly hear the case.

The Court found that it had authority to grant an injunction with extra-territorial effect against a non-party resident in a foreign jurisdiction if it is just or convenient to do so.

The judge observed that new circumstances require adaptation of existing remedies  – an aspect of the reality of e-commerce with its potential for abuse. This would be especially so if there was to be any credibility and integrity of Court orders.

The court then considered the test for ordering an injunction against a third party. The standard test was modified.

 (1) a good arguable case or fair question to be tried (which relates to the plaintiff’s claim against defendant); and

 (2) a balancing of the interests (irreparable harm and convenience) of the plaintiff and the non-party to whom the injunction would apply.

The court identified a number of relevant considerations, including

  1. whether the third party is somehow involved in the defendant’s wrongful acts;
  2. whether the order against the third party is the only practicable means to obtain the relief sought;
  3. whether the third party can be indemnified for the costs to which it will be exposed by the order;
  4. whether the interests of justice favour the granting of the order; and
  5. the degree to which the interests of persons other than the applicant and the non-party could be affected.

The court granted the injunction against Google requiring Google to block the defendants’ websites (identified in the court order) from Google’s search engine results worldwide finding that Google was unwittingly facilitating the defendants’ ongoing breaches of court orders, and there was no other practical way to stop the defendants.

Google appealed to the British Columbia Court of Appeal who upheld the order issued at first instance.

Equustek v Google

The Court of Appeal observed that it is unusual for courts to grant remedies against persons who are not parties to an action. The reasons for this are obvious – most civil claims are concerned with the vindication of a right, and the remedial focus will be on that right. Further, notions of justice demand that procedural protections be afforded to a person against whom a remedy is sought. The usual method of providing such protections is to require the claimant to bring an action against the respondent, giving the respondent the rights of a party.

However, this does not mean that the Courts are powerless to issue orders against non-parties. What is known as a Norwich Pharmcal order was cited as an example. There are, in fact, many types of orders that are routinely made against non-parties – subpoenas to witnesses, summonses for jury duty and garnishing orders are common examples. Many of these orders have a statutory basis or are purely procedural, but others derive from the inherent powers of the court or are more substantive in nature.

The Appeal Court observed that Canadian courts have jurisdiction to grant injunctions in cases where there is a justiciable right, even if the court is not, itself, the forum where the right will be determined. Canadian courts have also long recognized that injunctions aimed at maintaining order need not be directed solely to the parties to the litigation.

Google argued that the Court should not grant an injunction with extraterritorial effect. It submitted

As a matter of law, the court is not competent to regulate the activities of non-residents in foreign jurisdictions. This competence-limiting rule is dictated both by judicial pragmatism and considerations of comity. The pragmatic consideration is that the court should not make an order that it cannot enforce. The comity consideration is that the court refrains from purporting to direct the activities of persons in other jurisdictions and expects courts in other jurisdictions to reciprocate.

The Court did not accept that the case law establishes the broad proposition that the court is not competent to regulate the activities of non-residents in foreign jurisdictions.

The Court noted that the case exhibited a sufficient real and substantial connection to British Columbia to be properly within the jurisdiction of the Province’s courts.

From a comity perspective, the question must be whether, in taking jurisdiction over the matter, British Columbia courts have failed to pay due respect to the right of other courts or nations. The only comity concern that was articulated in this case was the concern that the order made by the trial judge could interfere with freedom of expression in other countries. For that reason, there had to be considerable caution in making orders that might place limits on expression in another country. The Court stated that where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.

In considering the issue of freedom of expression the Court noted that there was no realistic assertion that the judge’s order would offend the sensibilities of any other nation.

It was not suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offended the core values of any nation. The Court noted that the order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

The Court also noted that there were a number of cases where orders had been made with international implications. Cases such as APC v. Auchan Telecom, 11/60013, Judgment (28 November 2013) (Tribunal de Grand Instance de Paris); McKeogh v. Doe (Irish High Court, case no. 20121254P); Mosley v. Google, 11/07970, Judgment (6 November 2013) (Tribunal de Grand Instance de Paris); Max Mosley v. Google (see “Case Law, Hamburg District Court: Max Mosley v. Google Inc. online: Inform’s Blog Moserly v Crossley – Hamburg) and ECJ Google Spain SL, Google Inc. v. Agencia Española de Protecciób de Datos, Mario Costeja González, C-131/12 [2014], CURIA are well known to Internet lawyers.

Some of the cases involving extraterritorial implications have been controversial, such as La Ligue contre le racisme et l’antisémitisme c. La Société YAHOO!Inc., Tribunal de Grande Instance de Paris (May 22, 2000 and November 20, 2000), Court File No. 00/05308 and YAHOO! INC. v. La Ligue contre le racisme et l’antisémitisme, 169 F.Supp. 2d 1181 (N. Dist. Cal., 2001) rev’d 379 F.3d 1120 (9th Cir., 2004) and 433 F.3d 1199 (9th Cir. en banc, 2006)).

This extensive case law does indicates that courts in other countries do not see extraterritorial orders as being unnecessarily intrusive or contrary to the interests of comity.

Commentary

Google appealed to the Supreme Court of Canada and leave to appeal has been granted. Thus, there is one more act to this drama to be played out.

One issue that will need to be resolved is whether the order that was made can be even be granted against a third party not involved in any wrongful activity. If so, the test to obtain such an order will need to be determined, as well as its geographic and temporal scope.

What about the issue of access to justice? In many areas of law, courts have expressed concern that effective remedies should not be limited to individuals or companies with deep pockets. The type of order granted against Google is certainly an effective additional remedy from a plaintiff’s perspective. But are only large corporates expected to be the sole parties in cases such as these simply because they are large corporates with a high profile. Only Google seems to be a party in this case – no other search engine features.

Furthermore what are the boundaries of a Canadian court’s territorial jurisdiction. May a Canadian court order a search engine company in California to prevent users in other countries from viewing entire websites? It is also expected that Google will raise constitutional issues, specifically whether blocking search results limits access to information or freedom of expression on the Internet.

But there is more to the case than this. It involves the ability to locate Internet based information that is facilitated by search engines. This case has the same impact on the Internet as Google Spain  – its consequence is de-indexing of information.

The decision is unremarkable for its application of conflict of laws theory. But having said that, the issue of extraterritorialty is a complex one, and because other jurisdictions and Courts have made extraterritorial orders that may or may not be enforceable does not mean that such an order is correct of justified in law. The anti-Nazi organisations LICRA and UEJEF found this out when Yahoo, having had extraterritorial orders made against it in France came to the US Courts seeking a declaration that they were unenforceable. Would Google be on less firm ground if it adopts a similar course of action against Equustek – assuming that a US Court has jurisdiction?

Throttling the Web

The development of the World Wide Web was, in the vision of Tim Berners-Lee, to assist in making information available and, creating a method of accessing stored information and sharing it.  Yet it had already become clear, even pre-Web, that locating information was a problem and the solution lay in developing search engines of means of locating a specific piece or pieces of information. Search engines such as Gopher provided a form of a solution in the pre-graphical interface, pre-Web environment, and there were a number of search engines such as Altavista, Lycos, Find-What, GoTo, Excite, Infoseek, RankDex, WebCrawler Yahoo, Hotbot, Inktomi and AskJeeves that provided assistance in locating elusive content. However, the entry of Google into the marketplace, and the development of innovative search algorithms meant that Google became the default source for locating information.

What must be remembered is that Google is a search and indexing engine. It does not store the source information, other than in cached form. Using some advanced mathematics, founders Larry Page and Sergey Brin developed a method for measuring the links across websites by ranking a website more highly when other sites linked to it. Putting it very simply, the algorithm measured the popularity of a webpage. Utilising the hypertext link of Berners-Lee, Google locates content and enables a user to access it.

As a lawyer\technologist, I see Equustek v Google in the same way as I saw Google Spain – as a clog on progress that may slow the development and promise of information systems that depend upon a reliable search facility to locate information on the greatest central source of information that the world has ever known. The propositions that underlie Google Spain and Equustek and the application of law in this area amounts to a real and significant collision in the Digital Paradigm. Perhaps it is time for the Courts to understand that an automated indexing system that is completely content neutral and involves no human input into the way that it identifies and indexes should be seen as simply an intermediary and no more. Google is able to monetise its search engine  but to suggest that its search engine is not a passive information system, but rather is interactive and displays targeted advertisements in and of itself is, in my respectful view, insufficient justification to require a de-indexing of search results.

DIXON v R –Game Over for Digital Property? I Think Not.

 

On 20 October 2015, the Supreme Court of New Zealand delivered its decision in the matter of an appeal by Jonathan Dixon against a conviction on a charge of accessing a computer for a dishonest purpose pursuant to s 249 Crimes Act[1].  It was alleged that Mr Dixon had accessed a computer system and dishonestly and without claim of right obtained any property.  In short, what Mr Dixon had done was to copy some digital footage from a CCTV security system operated by a bar in Queenstown.  Mr Dixon obtained the footage from a receptionist for the company and transferred the files onto a USB stick, deleting them from a desktop computer where they resided.

The Judge at first instance considered that the digital CCTV files were property within the meaning of the definition of that word in s 2 Crimes Act.  When the matter went before the Court of Appeal, the Court disagreed[2].  It concluded that digital information or a data file did not fall within the definition of property.

The Court of Appeal’s decision was the subject of considerable critical comment.  It was even suggested that the provisions of s 249 Crimes Act were “unfit for the purpose”.  Yet the decision should not have come as any surprise for there is a substantial body of authority, primarily in the civil arena, that supports the Court’s conclusion.  Subsequently the Court made  similar finding was reached in the case of Watchorn v R[3].

What the Court of Appeal did in Dixon however, was to substitute another charge which could have been proffered against Mr Dixon – that he accessed a computer and dishonestly and without claim of right obtained a benefit.  In its decision the Court of Appeal went to some pains to consider the nature of a benefit and substitute it at charge.

Mr Dixon appealed against that conclusion to the Supreme Court of New Zealand.  In its decision, the Supreme Court concluded that the Court of Appeal’s conclusion that a digital file did not amount to property was wrong.  It quashed Mr Dixon’s conviction for obtaining a benefit contrary to s 249(1)(a) and it reinstated his original conviction for obtaining property by accessing a computer system for a dishonest purpose. Phyrric victory does not adequately describe the outcome from Mr. Dixon’s point of view.

The Court started by considering the provisions of s 249(1) of the Crimes Act.

249 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.

 

It then went on to consider the definitions of “access” and “computer system” contained in s 248 Crimes Act.  The Court observed that a relevant feature of the definitions was that “computer system” included “stored data” and “access” included receiving data from a computer system. The Court later observed that the definition of a computer system included “software” of which more later.

The Court then went on to consider the definition of “property” contained in s 2 of the Crimes Act.

property includes real and personal property, and any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action, and any other right or interest

Arnold J, writing for the Court, noted that the definition is:

(a)        inclusive rather than exclusive;

(b)        circular in that the property is defined as including real and personal property; and

(c)        in wide terms and, in particular, includes tangible and intangible property.

The Court went on to observe that within the broader statutory context the term “goods” in the Commerce Act 1986, the Consumer Guarantees Act 1993, the Fair Trading Act 1986 and the Sale of Goods Act 1908 is defined, to avoid doubt, to include computer software. It observed that, when considering the inclusion of software in consumer legislation the Commerce Committee stated:

The interest in the software the consumer receives does not differ significantly from other goods involving the transfer as an interest in intellectual property, and for which the guarantees and remedies relating to goods are more relevant and applicable to the guarantees and remedies related to services.  We recommend that computer software be added to the definition of goods for the avoidance of doubt.[4]

 

In reading the decision in a linear fashion, it was not immediately apparent at this stage of the Court’s reasoning what relevance software as goods might have to the issue of whether data was property but the issue becomes clear later in the Supreme Court’s decision.

The Court went on to consider the Judge’s finding that the definition of “property” in the Crimes Act was wide and, indeed, sufficiently wide to cover a digital file.  It then went on to consider the decision of the Court of Appeal.  The Court of Appeal’s starting point was that digital files were not property within the meaning of the definition of the Crimes Act because they were pure information.  The Court of Appeal had adopted what it described as an “orthodox” view that information, whether confidential or not, was not property.  It observed that the medium upon which information could be stored would be property but the information upon it would not.  Therefore, the digital footing could not be distinguished from information on this basis. The Court of Appeal observed that it was problematic to treat computer data as being analogous to information recorded in physical form.  It observed that a Microsoft Word document may appear to be the same as a visible sheet of paper containing text but in fact was simply a stored sequence of bytes.

The Court of Appeal considered whether or not it should depart from this orthodox view, observing that the distinction drawn between information which was not property and the medium upon which it was contained had been criticised as illogical and unprincipled.  The Court of Appeal’s view was that there were certain policy reasons militating against the recognition of information as property particularly in that such a decision could impact detrimentally upon the free flow of information and the freedom of speech.

The Court noted that when it enacted the computer crime sections of the Crimes Act there were also amendments to the definition of “property” but that these were limited.  The taking of confidential information or trade secrets was encompassed by s 230 Crimes Act. It considered that the provisions in s 249 relating to property were aimed at situations where a person accessed a computer and used, for example, a false or purloined credit card details to obtain goods unlawfully.

Before the Supreme Court counsel for the Crown stepped away from arguing that pure information was property.  Rather, the argument was focused upon the fact that digital files were property because they could be owned and dealt with in the same way as other items of personal property.  Thus the Court was able to sidestep dealing with the major finding of the Court of Appeal and could approach the problem from a different angle.

Another reason for the Court not considering the “pure information as property” issue was that Mr Dixon had dismissed his lawyer prior to the hearing and, accordingly, the point was not fully argued, and therefore it was considered that it was not an appropriate occasion to reconsider what the Court of Appeal had referred to as the orthodox view.

The Supreme Court started with considering the issue of context and observed that the meaning of the word “property” varies with its context.  It referred to comment made by Gummow and Hayne JJ in Kennon v Spry [5]where they stated:

The term “property” is not a term …with one specific and precise meaning.  It is always necessary to pay close attention to any statutory context in which the term is used.

The Court then went on to observe that within the context of s 249(1)(a) and in light of the definition of “property” in s 2, there was no doubt that the digital files at issue were property and not simply information.  The Court considered that digital files are identifiable, have a value and are capable of being transferred to others.  They also have a physical presence although that cannot be detected by means of the unaided senses.  It may be that they could be classified as tangible or intangible but nevertheless the Court concluded that digital files were property for the purposes of s 249(1)(a). However, the Court omitted to discuss inconvenient issue of the necessity of exclusive possession as an element of property

 

The rationale for such a finding started with a consideration of the history of the amendments made to the Crimes Act in 2003.  In crafting a new suite of changes to modernise the criminal law in relation to crimes against rights and property, focus was upon the concept of being “deprived of property” rather than the concept of “things that were capable of being stolen”, for it was that latter concept that underpinned property crimes in the 1961 Crimes Act prior to its amendment in 2003.

When the amending bill was first proposed, there was a specific definition of “property” for the purposes of a new Part 10 relating to crimes against property.  That new definition arose as a result of the 1999 decision of the Court of Appeal in R v Wilkinson[6] where the Court held that the concept of things capable of being stolen did not cover intangible property.

The new definition for the purposes of Part 10 proposed:

Property includes real and personal property, and all things, animate or inanimate, to which any person has any interest or over which any person has any claim; and also includes money, things in action and electricity.

The Supreme Court considered that had this definition remained, digital files would have been included on the basis that they are things in which a person has an interest.

However, when the bill was reported back by the Law and Order Select Committee, it was observed that the definition of “property” and for the purposes of Part 10, differed from the definition of “property” in s 2 and concluded that there should be one definition for the Act as a whole.  The Law and Order Select Committee recommended that the definition be removed from Part 10 and the definition of “property” in s 2 be amended.  The problem is that the definition of “property” in s 2 is not as widely stated as the proposed definition for Part 10.

The Court then went on to consider the nature of a document which had an extended definition for the purposes of Part 10.  Quite clearly from the definition of a document material held in electronic form falls within such a definition and the Court of Appeal reached a similar conclusion in R v Misic[7] which was decided before the extended definition was enacted.

Anderson J, writing for the Court in Misic, said:

… we have no difficulty accepting that the computer program and computer disk in question are each a document for the purposes of s 229A. Essentially, a document is a thing which provides evidence or information or serves as a record. The fact that developments in technology may improve the way in which evidence or information is provided or a record is kept does not change the fundamental purpose of that technology, nor a conceptual appreciation of that function. Legislation must be interpreted with that in mind. …

 

He went on to say:

It is unarguable that a piece of papyrus containing information, a page of parchment with the same information, a copper plate or a tablet of clay, are all documents. Nor would they be otherwise if the method of notation were English, Morse code, or binary symbols. In every case there is a document because there is a material record of information. This feature, rather than the medium, is definitive.

The Supreme Court then turned to consider the provisions of ss 249-252 Crimes Act dealing with computer crimes and considered, contrary to the view of the Court of Appeal, that the word “property” included in s 249(1)(a) was included for a purpose that was broader than the mere use of credit card details used in conjunction with computer to unlawfully obtain goods.

The Court considered that the broader purpose could be justified by starting with the definition of a computer system which included items such as “software” and “stored data”, which is also referred to in s 250 which deals with damaging or interfering with a computer system.  The Court observed that there was no doubt that Parliament had stored data in mind when those provisions were drafted.  Similarly, “access” is defined to include receiving data from a computer and is received even although it is copied rather than permanently removed.

The Court observed[8]

Given that Parliament contemplated situations where a person copied stored data from a computer, which of the offences might apply where the person taking the data did so without authority?  There are three possibilities – ss 249, 250 and 252.  It is not obvious that s 250 would apply.  If someone simply took a copy of existing data, but did not damage, delete or modify it, could it be said that the person “interfered with” or “impaired” the data?  We rather doubt that it could.  Section 252 could apply.  It creates an offence of intentionally accessing the computer system without authority and provides for a maximum penalty of two years’ imprisonment.  However that offence focuses on unauthorised access implicit, it does not address the issue of dishonest purpose.  Where the access if for dishonest purpose, s 249 applies and there are significantly higher maximum penalties.

 

The Court then discussed the situation where a person without authority located, copied and dealt with valuable digital files contrary to the interests of the file’s owner.  The inclusion of that conduct is consistent with the features of the legislation to which reference had been made.

Looking at the issue conceptually, of those concepts identified in s 249(1)(a) – property, privilege, service, pecuniary advantage, benefit or valuable consideration – property seemed most apt to capture what was obtained by Mr Dixon as the result of the unauthorised access.  Thus from a conceptual view of what it was that the accused did and what he took, the word “property” seemed the most suitable word to encompass the situation.

 

The Supreme Court then referred to the fundamental characteristics of property as being something that was capable of being owned and transferred.  It observed that the digital files which were downloaded onto his USB stick and then deleted from the computer upon which they were stored, were a compilation of sequenced images.  This file had an economic value and was capable of being sold.  Although the files remained on the CCTV system, the compilation contained what was valuable in the full files.  The compilation had a material presence.  It altered the physical state of the medium upon which it was stored – the computer disk or USB stick – illustrated by the fact that electronic storage space can be fully utilised.

This aspect of material presence led to a discussion of some American cases where a different approach to computer files as property has been adopted.  The Court referred to the case of South Central Bell Telephone Company v Barthelemy[9] where the physical processes and characteristics of software were examined.  The response to the suggestion that software was merely knowledge or intelligence – perhaps another way of stating information – the Court observed that the software was knowledge recorded in a physical form which had a physical existence and which took up space on a tape, disk or hard drive and made physical things happen which could be perceived by the senses.  The software was ultimately recorded and stored in the physical form on a physical object.

The Court also referred to a number of other American cases, although noted that the US Courts had not been consistent on the point with some holding that software is intangible property. The decision of Ronald Young J in Erris Promotions Limited v CIR[10] where the argument was whether or not software code was tangible property.  The Judge held that it was intangible rather than tangible. The issue of tangibility or intangibility is something of a red herring, having regard to the fact that property can be tangible or intangible according to the definition of property in s.2 of the Crimes Act 1961

In considering the Court of Appeal’s approach in Dixon where it was noted that it was problematic to treat computer data as being analogous to information recorded in physical form, the Supreme Court made two comments.  It firstly observed that the definition of “document” of was broad enough to include electronic documents or files.  In this regard I observe that the word “document” is used probably for two reasons.  The first is the file extension .doc which infers that the file created is a document.  The second is that a word processing program is designed to create a file of information which resembles a paper document but which in reality is quite different, being in electronic form.  We use the word “document” because it is a word with which we are familiar.  Perhaps a better word would be “file” although the definition of “document” is really directed towards the result of a technological process.

In the United States, electronic records and databases had been treated as property capable of being converted although they were intangible.  The case of Thyroff v Nationwide Mutual Insurance Co[11] considered whether the tort of conversion could apply to the misappropriation of electronic records and data.  The Court’s approach was consistent with the overall view of computer or electronic files in the US – that being that there is an economic value to electronic information which should receive the protection of law.

The Court observed that the position in England was different, although the cases in England involved civil aspects of electronic information as property.  It observed that the case of Your Response Limited v Datateam Business Media Limited[12] concluded that it was not possible to exercise a common law possessory liens over an electronic database on the basis that it was not tangible property of a kind capable of forming subject matter of torts that are concerned with interference and with possession.  The Court in Your Response Limited followed the decision of OBG Limited v Allan[13].  What should be observed in those cases, and a matter which the Supreme Court seems to have sidestepped, is that possessory liens and some other torts involving interference with property are premised upon the concept of exclusivity of possession.  In the electronic environment it is capable for a person to obtain a copy of a data file by dishonestly accessing a computer, but by leaving the “original” upon the target computer.  In Dixon’s case, although the digital file that he took was a compilation of a larger CCTV record, nevertheless the original CCTV record remained in the possession of the “owner”.  Thus, two people had possession or control of the same data and the element of exclusivity was absent.

The issue of tangibility or intangibility of an electronic file is, as observed above, resolved by the provisions of s 2 Crimes Act which includes both tangible or intangible property.  The Court then went on to say that what emerged from the brief discussion of the US authorities is that although they differ as to whether software is tangible or intangible, there is general agreement that software is property.  The Court then encompassed data files as property by observing, “There seems no reason to treat data files differently from software in this respect”.

From a technological point of view, software files are operating instructions for a computer.  Data files are raw information which may be processed by a software program.  A .doc file created by the utilisation of the software Microsoft Word is rendered readable by the software.  Software does something within the computer environment.  Data is something that software manipulates.  This is recognised by the separation of “software” from “stored data” in the definition of a computer system in s. 248 of the Crimes Act 1961. The Supreme Court chose not to address this functional difference between software and data.  Although the Court had discussed the nature of software as goods, that merely heightens the distinction between software and data.  There can be no doubt that data can have a value, although it must be associated with some form of processing software to be rendered comprehensible.  But data is not protected by the Consumer Guarantees Act or other consumer protection legislation.

Finally, the Court made some observations about the decision in Watchorn, observing that the digital files that Mr Watchorn obtained were property for the purposes of s 249(1)(a) and that he should have been convicted.

In considering the Supreme Court’s decision, the first thing that should be noted is that the Court went to some pains to state that its definition of “property” was within the context of the legislation and particularly within the context of s 249(1) Crimes Act.  Given that limitation, it could well be argued that its holding that a digital file amounts to property is limited in application.

However, it may well be if the decision is utilised in a broader sense, that there will be certain unintended consequences and one comes to mind.  It involves the person who accesses a computer system dishonestly and without claim of right, and obtains a digital file containing embarrassing or damaging information.  That information, if published, could have significant consequences.  The “hacker” for so he is, puts the information onto a USB stick.  The information is delivered to a third party.  There are no criminal implications in the hacker giving the third party the USB stick.  Property in the USB stick itself and as a medium is validly transferred.  What of the digital file on the USB stick?  The third party is aware that it was obtained dishonestly and by unauthorised access to a computer system.  The question which may need to be asked and answered is whether or not the receipt of the digital file on the USB stick would be sufficient to constitute the offence of receiving by the third party.

What to do?  Clearly the information as property issue needs to be addressed and it may well be that the answer lies in considering adopting the American approach together with clarifying the fact that digital data to exist must be associated with a medium be it a hard drive, a USB drive or stored in the Cloud.  It is this aspect of a digital file that gives it its tangibility albeit limited.

The issue of virtual property remains an open question and must depend 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 perception 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 and without property implications.  But the digital file associated with a medium could have a level of tangibility sufficient to attract the protection of the civil and criminal law.

But wait! There’s more! What proprietary interests does a subscriber have to that piece of virtual real estate in Second Life? And if it is “property” acquired during the course of a relationship, may it attract the attention of the Property (Relationships) Act 1976? What about that “amped up” magic sword that the player uses in Word of Warcraft. The game is not over. In fact, it has only just begun.

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[1] [2015] NZSC 147

[2] [2014] 3 NZLR 504

[3] [2014] NZCA 493

[4] Consumer Protection (Definitions of Goods and Services) Bill 2001 (154–2) (select committee report) at 4.

[5] [2008] HCA 56, [2008] CLR 366 at [89]

[6] [1999] 1 NZLR 403 (CA).

[7] [2001] 3 NZLR 1 (CA).

[8] Above n 1 at [36]

[9] 643 So 2d 1240 (Lou 1994).

[10] [2004] 1 NZLR 811 (HC).

[11] 8 NY 3d 283 (NY 2007).

[12] [2014] EWCA Civ 281, [2015] QB 41.

[13] [2007] UKHL 21, [2008] AC 1.