Recently David Farrar in Kiwiblog commented on the decision of the Government to step back from a provision – Clause 401 – of the Judicature Modernisation Bill requiring final decisions of the District Court to be published online. I thought I would expand on his piece.
The deleted Clause 401 reads:
(1) Every final written judgment of the court (excluding the Family Court, the Youth Court, and the Disputes Tribunal) must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.
(2) Good reason not to publish a judgment or part of it includes the following:
(a) non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:
(b)the judgment falls into a category of judgments that are of limited public value:
(c) taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.
(3) In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—
(a) a written reserved judgment; or
(b) an oral judgment transcribed by an official transcription service.
I was gratified when I saw this section was to be part of the Act. It was the culmination of a process in which I had been involved since 1996 to have the decisions of all the New Zealand Courts made available online.
The proposition is not that revolutionary. In common law countries – those that have inherited or adopted the English system of justice – the decisions of the Courts interpret and develop the law. The Internet meant that the decisions of the Courts could be released from the restrictions of paper and library shelves and be available for distribution to all. As a society that holds that ignorance of the law is no excuse it seemed perverse that there should still be obstacles to knowing what the law was.
The path to publication of the decisions of the Courts was not an easy one. I won’t traverse that story here. Suffice to say there was resistance from a number of unexpected quarters and a lack of understanding of the importance of the concept of the transparent operation of the Courts.
The decisions of the appellate Courts such as the Court of Appeal and the Supreme Court are available from the Courts of New Zealand Website as well as the clunky and difficult to navigate Judicial Decisions Online (JDO) where the decisions of the High Court may be found. Decisions are also available from the excellent if underfunded and little appreciated NZLII (New Zealand Legal Information Institute) where the search capabilities are a little easier in terms of analysing results than JDO and the databases are larger.
All that remained was for the decisions of the District Court to be made available online. Having a requirement in legislation made compliance mandatory. It was going to be a large task but there were a number of alternative ways in which it could be accomplished. But mandatory publication will now not take place.
Chief District Court Judge Jan-Marie Doogue said that from now on, a Publications Unit working under an editorial board of senior judges, will select for online publication those decisions considered of high public or legal interest and which meet criteria for publication. This calendar year, the website expects to publish about 2500 decisions, rising to about 4000 next year.
That is to be applauded. But if Clause 401 had remained it would have required funding. And that seems to have been an important driver. Recently the Minister of Justice released a statement explaining why Clause 401 had been removed. I reproduce it below along with my comments and critique.
“The Justice Ministry has advised me that each year the District Court (excluding the Family Court and Youth Court) delivers 15,300 final decisions that would fall within the scope of the requirement in the Bill.
They are made up of:
* 300 written decisions (reserved judgments), mainly delivered in the civil jurisdiction; and
* 15,000 transcribed oral decisions, including civil and criminal judgments, and sentencing notes.
The District Court doesn’t publish its judgments online, because it does not have the judicial resource that senior courts have in the form of Clerks and other judicial staff.
This is the first problem. The publication of decisions should have been properly resourced from the beginning rather than be left to existing internal arrangements. That said, there is in existence a database of decisions available on the internal Court system where decisions are collected and indexed. This is done as decisions are transcribed either by the transcription service or Judges’ PAs.
The sheer volume of decisions by the District Court alone make it difficult for every decision to be published, especially due to the fact 15,000 oral decisions would need to be transcribed, checked, and for each Judge to sign off on each decision before they are published.
Believe it or not a large number of decisions are transcribed and must be signed in hard copy by Judges. Included in these are decisions declining bail and sentencing decisions. If one looks at the proposed clause 401(3) the definition of a final written judgement reduced the volume quite considerably. I recall when we were discussing the publishing criteria for judgements in the early phases of the campaign for putting decisions online the test was “a final decision of a contested issue between the parties or the sentence imposed in criminal matters.” Furthermore the provisions of Clause 401(2)(a) – (c) provided a further filter. This seems to have been overlooked.
The resourcing of staff alone to begin publishing final judgments would result in an increase of at least 10 FTE publication staff, at approximately $1 million. This does not take into consideration other staffing increases, training, overhead costs, equipment, and increases in workload. The vast majority of these decisions are also oral, meaning transcribing services would need to be resourced and serviced.
That is probably correct if it is done internally. Given that the Courts are an arm of Government I would have thought that the obligation of making law available to the people in a free and democratic society would be something that should be provided at a reasonable cost. In the overall scheme of things $1 million is a small price to pay for transparent justice.
Considering there is essentially no precedent value (i.e. decisions do not bind the higher courts, and they are often just a straight declaration of sentence rather than reasoning) in the decisions made by the District Court, the time, effort and resource that transcribing would take would add little value to access to justice.
This is a red herring. True, the decisions of a District Court are not binding on the higher courts although they can be helpful if the issue has been considered below and needs to be critiqued on appeal or in other proceedings higher up the hierarchy. Precedent brings with it consistency, and a consistent approach has been a touchstone of our justice system. By and large, like cases should be treated alike. And so it is that the availability of District Court decisions enhances consistency. Not only do the public get a chance to see that a consistent approach has been adopted. Lawyers are able to access to database to properly advocate a position based on earlier similar outcomes thus maintaining and ensuring consistency.
I can recall that for many years counsel and law researchers have struggled with the fact that sentencing decisions of the District Court in Health and Safety prosecutions, Fisheries prosecutions and other prosecutions by Government departments have not been available so that a position may be advocated on the basis of earlier cases or clients can be advised of likely outcomes. A central database of decision would have been helpful in this regard.
Furthermore, to say that a sentencing decision is just a straight declaration of sentence rather than reasoning may happen for a run of the mill excess blood alcohol case, but the minute a judge is looking at anything more than a fine or low level community work, a complex analytical process is required involving identifying the circumstances of the offence, culpability levels, aggravating and mitigating circumstances both of the offence and the offender along with adjustments for guilty pleas, remorse and the like and stating them. All of these are very valuable in ensuring consistency of approach as appeal courts have often observed.
So to say that there is little value added to access to justice completely ignores the importance of consistency of approach in the decisions of the Courts which can be better informed by making decisions available online for the public and lawyers, rather than being closeted on an internal database.
To argue that all 15,000 final decisions should be made online simply for the sake of it would require significant funds and resources. That would mean less money for supporting victims, putting police on the beat, and keeping our communities safe.
For the reason just articulated – consistency of approach – the decisions would not be there “simply for the sake of it”
It’s worth noting that the judiciary have launched a new website (www.districtcourts.govt.nz<http://www.districtcourts.govt.nz>) which has started publishing judicial decisions from the District Courts. Criteria for publication in the criminal jurisdiction include sentencing notes and reserved decisions from judge-alone trials in cases of more serious offending, or cases where there has been discussion of high-level principles.
I have already commented on this. A commendable judge-led move but there are certain self-limiting factors imposed for the very reason the Minister identified earlier in her statement
All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”
As they should be, along with all the other decisions of the District Court.
Is there an alternative way to comply with the former Clause 401? Yes there is.
Perhaps the Minister and her Department could have considered taking the online dissemination of judgments out of the hands of her Ministry and the Judiciary and, as is done in Australia and England where decisions are automatically made available to the Australasian Legal Information Institute (AUSTLII) or the British and Irish Legal Information Institute (BAILII), direct the necessary funding and the database of decision to the New Zealand Legal Information Institute (NZLII) who have established expertise in this area. The resources that would be freed up in the Ministry could be translated into funding for NZLII to provide the service. It is not hard. It has been done elsewhere. There is no need to re-invest the wheel. I have advocated such an outcome for years. Once again, an opportunity has been lost.
The Medium is the Message:[1]When are Digital Communications Harmful?
Introduction
The case of Paul Chambers v DPP has excited interest in the Internet community. It has become a flag bearer case for freedom of speech on the internet, for a demonstration of the unwillingness of legal institutions to understand the nature of humour but more importantly it is a case about the collision between content using a mass distribution system where the traditional one to many model utilised by monolithic media organisations has been usurped by a “many to many” model where user generated content is potentially available to all, and how that content should be interpreted in the context of law. In New Zealand there was a similar case, that of Police v Joseph, which involved a message communicated by means of a video posted to YouTube. This case note considers both cases and demonstrates that these cases and others involving the Internet suggest that the medium is as important as the message, and the medium, although in the background in terms of matters of interpretation, may assume a role that overtakes the message.
Paul Chambers was charged with sending by a public electronic communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003. Section 127 of the Act addresses the problem of the unlawful use of the public electronic communications network and provides:
“(1) A person is guilty of an offence if he –
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both. …” [2]
Chambers, a well educated young man of good character, wished to make a trip to Ireland in January 2010. He was a subscriber to Twitter, and the person whom he was visiting was someone he had “met” through that Internet platform.
On 6 January 2010, following an alert on “Twitter”, Mr. Chambers became aware of adverse weather conditions causing problems at Doncaster, Robin Hood Airport. Some two hours later, when he heard that the airport had closed, he posted the following message:
“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”
The message was posted on a public time line and was available to be read by Mr. Chambers’ “followers” who numbered some 600. Nothing happened. None of Mr. Chambers’ followers seem to have been disturbed by the message.
Some 5 days later a duty manager responsible for security at Robin Hood airport conducted a search of Twitter postings about Robin Hood airport and came across Mr. Chambers’ 6 January message. He did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson.
Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “noncredible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, Mr. Chambers was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.
The South Yorkshire police arrested Mr. Chambers, while he was at work, two days later, on 13 January on suspicion of involvement in a bomb hoax. It was now seven days since the offending message was “tweeted”. Mr. Chambers was interviewed under caution. When interviewed, and indeed in his evidence, the appellant repeatedly asserted that this “tweet” was a joke or meant to be a joke and not intended to be menacing. He said that he did not see any risk at all that it would be regarded as menacing, and that if he had, he would not have posted it. In interview he was asked whether some people might get a bit jumpy and responded “yah. Hmm mmm”.
On 10 February 2010, when the police investigation was completed, one of the investigating officers recorded the following observation on the South Yorkshire Police Crime Management System:
“Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.”
The police sought the advice of the Crown Prosecution Service. As a result Mr. Chambers was charged with the offence and was convicted in the Magistrates Court. He appealed to the Crown Court. The appeal was dismissed. On the basis of these facts the Crown Court was “satisfied” that the message in question was “menacing per se”. The lower Court took the view “that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it”.
The Crown Court went on to hold “that the required mens rea … is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so …” The court was satisfied that Mr. Chambers was, at the very least, aware that his message was of a menacing character. Mr. Chambers then appealed to the Divisional Court, which is part of the High Court of England and Wales.
The Medium – Content and delivery – a public communications network
The Court spent some time considering the nature of Twitter. This was necessary in light of a contention on the part of Chambers that the message was not sent by a public electronic communications network.
The manner in which the Court defined the medium had an impact upon the way in which it considered the message.
“Twitter”, it said, “enables its users to post messages (of no more than 140 characters) on the “Twitter” interne and other sites. Such messages are called “tweets”. “Tweets” include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech.
Those who use “Twitter” can be “followed” by other users and “Twitter” users often enter into conversations or dialogues with other “Twitter” users. Depending on how a user posts his “tweets”, they can become available for others to read. A “public time line” of a user shows the most recent “tweets”. Unless they are addressed as a direct message to another “Twitter” user or users, in which case the message will only be seen by the user posting the “tweet”, and the specific user or users to whom it is addressed, the followers of a “Twitter” user are able to access his or her messages. Accordingly most “tweets” remain visible to the user and his/her followers for a short while, until they are replaced by more recently posted “tweets”. As every “Twitter” user appreciates or should appreciate, it is possible for non-followers to access these “public time lines” and they, too, can then read the messages. It is also possible for non-users to use the “Twitter” search facility to find “tweets” of possible interest to them.”[3]
It was argued that the “tweet” was found by means of a subsequent search, and so should be treated as no more than “content” created and published on a social media platform rather than a message sent by means of a communications network. It seems that there was an attempt to differentiate between a message in dynamic form – one that was part of a rolling “conversation” or contemporaneous posting – and content in latent form – a form of data stored and available for reference. However, Chambers’ counsel, John Cooper QC, had to accept that a message on public “Twitter” is accessible to all who have access to the internet, and therefore, by inference, to the public, or to that vast section of the public which included anyone who chose to access a timeline consisting of any of the posted key words by use of a search engine. The Court adopted the approach of the Crown Court which held:
“The “Twitter” website although privately owned cannot, as we understand it, operate save through the internet, which is plainly a public electronic network provided for the public and paid for by the public through the various service providers we are all familiar with … The internet is widely available to the public and funded by the public and without it facilities such as “Twitter” would not exist. The fact that it is a private company in our view is irrelevant; the mechanism by which it was sent was a public electronic network and within the statutory definition … “Twitter”, as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful”
The potential (as opposed to actual) recipients were the public as a whole and the Court held that it was immaterial that Chambers intended that the message should be available to a limited class of people such as his followers who would take the remark as intended and be neither fearful nor apprehensive when they read it.[4] The Court held whether one reads the “tweet” at a time when it was read as “content” rather than “message” – that is at the time when it was posted – it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1). Accordingly “Twitter” fell within its ambit. The latency or dynamism of the message mattered not.
The Message -“menacing” and the importance of context and approach.
The Court noted that the charge could not be proven unless the content of the message was of a menacing character. The Court held that the message should
“create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.” [5]
The Court went on to consider not only the impression that may be left with the reader but the context of the message. Counsel for the respondent emphasised the current climate of terrorism and threats to national security from possible terrorist attacks – something with which Britain has been living since the Irish troubles in the 1970’s and afterwards. The Court said that indeed was relevant to context but there were a number of other factors as well.
The offence was not one which was directed at the inconvenience caused by the message – a matter that is relevant in a consideration of the provisions of s 307A(l)(b) of the Crimes Act 1961.[6] Other contextual factors that the Court took into account in concluding that the message did not represent a threat, terrorist or otherwise, were[7]:
It was posted on “Twitter” for widespread reading by his followers drawing attention to himself and his predicament
It was not sent to anyone at the airport or anyone responsible for airport security, or any form of public security but rather was an expression of frustration that the airport was closed
The language and punctuation were inconsistent with the writer intending it to be as a serious warning. The double exclamation marks provided an example
The sender of the message identified himself – something that was unusual in terrorist messages.
There was ample time for the threat to be reported and extinguished given the large number of followers who were recipients of the tweet.
None of those who read the message during the first few days thought anything of it. These included the airport security people and the Police. It was when the matter came into the hands of the Crown Prosecution Service that it was given a serious interpretation.[8]
No weight appeared to have been given by the Crown Court to the lack of urgency which characterised the approach of the authorities.
The Divisional Court considered that disproportionate weight was placed by the lower Court on the response of Chambers in interview to how “some” people might react, without recognising that the care needed to approach such a widely phrased question in context. The response was part of the interview as a whole, when looking back at what Mr. Chambers admitted he had done and his assertions that it was a joke. The question based on what “some” people might think embraced everyone, included those who might lack reasonable fortitude. This entirely equivocal response added nothing which supported the contention that the message was of a menacing character.
Thus, it was not open to the lower Court to conclude that the message was of a menacing character.
Mens Rea
Although it was not necessary to do so, the Court briefly considered the issue of mens rea which was a matter which was not necessarily determined from the content of the message itself. Notwithstanding Lord Bingham’s comments in DPP v Collins where he said
“a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of the message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient”.[9]
The Divisional Court observed:
“We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. We would merely emphasise that even expressed in these terms, the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.”[10]
Commentary
Is this a case about freedom of expression or the way in which expression should be approached in determining whether or not it is harmful?
One of the questions which the Court considered was whether the conviction amounted to a breach of Mr Chambers’ Article 10 right to freedom of expression- both whether there was interference, and if so, whether the interference was justified.
The Court approached its task with regard to the need to read the legislation in question in a way which is compatible with the European Convention on Human Rights (something required of it by section 3 of the Human Rights Act 1998) and bearing the right to freedom of expression in Article 10 in mind. The Internet and its platforms make dissemination of content and its persistence more readily possible and accessible than ever before – an aspect of the message – and the Court was not about to embark upon a wide ranging discussion of the nature of freedom of expression on the Internet. Rather, it looked at the history of the legislation which, as it became clear in the decision, addressed the era of the telephone and exchange based communications rather than the multi-platformed Internet. The 2003 legislation addressed the digital paradigm and the Court had this to say;
“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.”[11]
One wonders if a rights-based interpretation was necessary, given the way in which the Court approached the message. In adopting a context-based approach, it seemed unnecessary to approach the nature of menacing speech from a “freedom of expression” perspective. Given the Court’s approach, such a discussion was not engaged.
What the decision does address in the sub-textual sense is the way in which new technologies may challenge established lines of thought. As I have already stated, the 2003 Act and the use of the term the term “public electronic communciations network” brings the legislation into the digital paradigm. Yet it was necessary to carefully examine the operation of Twitter to ascertain whether it fell within the scope of the Statute and whether there was any difference between what I have suggested may be dynamic as opposed to a latent content. This analysis demonstrates that the medium is just as important as the message.
It must be pointed out that the Court’s findings should not have general application to Twitter as a platform. The reason is that it was considering the “public nature of tweets and its assessment of the “public” nature of Twitter “tweets” can only apply to the use of the “public line”. The decision did not address, because it was not relevant, the nature of direct messages. Direct messages are defined by Twitter as “a private message sent via Twitter to one of your followers. You can only send a direct message to a user who is following you; you can only receive direct messages from users you follow.” [12] Whilst it is possible that direct messages may be retweeted the position is entirely different if a tweet is protected. In such circumstances it cannot be retweeted. [13] In these respects the “public” nature of Twitter may be modified. In future cases Courts will have to consider not only the content of the message, but the way in which the medium was used.
YouTube Anonymous
Police v Joseph – the New Zealand approach
Police v Joseph[14] was a similar type of case to that of DPP v Chambers within a different statutory setting. Joseph was charged with a breach of s 307A(l)(b) of the Crimes Act 1961 in that he without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings did communicate information that he believes to be about an act namely causing explosions likely to cause major property damage.
The somewhat convoluted provisions of s. 307A read as follows:
Threats of harm to people or property
(1)Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—
(a) threatens to do an act likely to have 1 or more of the results described in subsection (3);or
(b) communicates information—
(i) that purports to be about an act likely to have 1 or more of the results described in subsection (3); and
(ii) that he or she believes to be false.
(2)The effect is causing a significant disruption of 1 or more of the following things:
(a) the activities of the civilian population of New Zealand:
(b) something that is or forms part of an infrastructure facility in New Zealand:
(c) civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):
(d) commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).
(3)The results are—
(a) creating a risk to the health of 1 or more people:
(b) causing major property damage:
(c) causing major economic loss to 1 or more persons:
(d) causing major damage to the national economy of New Zealand.
(4) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).
The Facts
Mr. Joseph, a secondary school student at the time, using his laptop, created a video clip that lasted a little over three minutes and in which by accessing voice software he created messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. It included statements such as:
• We will begin a terror attack – we will be attacking the New Zealand Government- We have targeted all New Zealand Government buildings –
• We have placed large amounts of explosives in hidden locations on all buildings –
• We have targeted all New Zealand Government websites and will take it down-
• We will hack all of New Zealand’s media ·websites-
• We will release all Government secrets that have not been released to Wikileaks or the public-
• We will hurt anyone that gets in our way unless you do what we say.
The clip demanded that the Government repeal or not pass an amendment to the Copyright Act addressing a three strikes regime for copyright infringement by file sharing. The clip was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to a group known as Anonymous. The Judge observed that:
“Anonymous is a well known sponsor of a website, the authors and personnel behind it being unknown, which is committed to airing protests and threats of electronic cyber attack and subversion of official and Government internet communications and sites which it perceives is under a threat to its freedom of expression on the internet. Anonymous stands for protection of such perceived rights of free speech and claims that such freedom should apply to internet communications. It is known to have a policy which does not permit bomb threats or rhetoric around violence and physical subversion.”[15]
The clip was posted to YouTube but it was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip. The defendant provided the link to news organisations, to a “fake” John Key[16] Facebook page that he created – the number of links amounting to 21. There was a photograph of John Key’s Auckland house. In his interview with the Police the defendant made complete admissions of every step taken in this entire process and said that his reason for including a John Key link was ….. “so that I can spread the video”.
The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. The deadline of 11 September came and went but by that time the identity of the defendant had been ascertained. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[17]
The defendant was spoken to by the Police on 15 September and made full admissions of his involvement. At the time of the investigation over a hundred visits had been made to the site before it was quickly closed down following the intervention of the GCSB.
The Issue
The primary issue was the intention of the defendant. Section 307A requires proof of an intention, without lawful justification or reasonable excuse, to cause significant disruption to one or more of the four community agencies identified in subsection( 2) by communicating information known to be false which would cause one of the outcomes in subsection (3).
The Judge identified the elements to be proven as:
(a) that the defendant communicated information that he knew (therefore believed) to be false (1 (b) (ii)). This was information about an attack on Government buildings by use of hidden explosives, attacks on websites, security leaks and harm to persons;
(b) that the information communicated was about an act likely to create risk to the health of one or more people and/or cause major property damage (3(a) and (b)). Although the charge is expressed as only alleging a result causing major property damage (3(b)), in opening the prosecutor explained that the evidence with the Court’s leave would also be offered as alleging a result that created a risk to the health of one or more people (3(a));
(c) that the communication was without lawful justification or reasonable excuse;
(d) that when making the communication, the defendant intended to cause significant disruption to something that is or forms part of an infrastructure facility in New Zealand (2(b)).
The defendant offered as an explanation that the file sharing provisions of the Copyright Act were an infringement of his right to freedom of expression, a right preserved by s 14 of the New Zealand Bill of Rights Act 1990 which he suggested applied to web and internet communications, but whilst offering this as his reason for what he did, he did not develop it as a defence.
In considering the issue of intent the Court had this to say:
“Did the defendant intend to cause a disruption to an infrastructure facility of New Zealand and if so, did he intend that disruption to be significant? First because there was no disruption to any of the agencies or infrastructure organs randomly and repeatedly mentioned in the clip, there being no evidence that any steps were taken to evacuate buildings or to put people on notice or to search premises etc, it is quite open to the Court to accept that the investigators did not consider any responses were necessary, and that would be consistent with the defendant’s own assertions that the extreme statements that had such violent connotations were only meant to be a “joke”
It was clear to the Court that Mr. Joseph wanted to ensure that his protest did not go unnoticed – that it was not drowned out by the “noise” that pervades the Internet. He chose extreme language and images to make his point, and couched his protest in violent terms although during his interview with the Police he expressed his remorse.
The judge considered the nature and extent of disruption anticipated by the statute. He said:
“I suggest that for our purposes a level of disruption intended would need clearly to be more than de minimis or more than of such little impact that it could be ignored. A test could be- has there been an interruption to the normal flow of things in the routine activity of an infrastructure, that is due to an element of influence that has generated a degree of disorder that requires particular application of attention – that requires a particular level of intensity and focus. If a disruption could be so described then, I expect it could be rightly called “significant”.”[18]
The judge expressed doubt that it was the defendant’s intention to cause such a level of disruption and agreed with the submission on behalf of the defendant that the intention had to be a specific one and did not encompass recklessness. He described the intention of the defendant as having his message seen and observed on the Internet and although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct in that the defendant did not want to get caught. However it did not point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.
In addition to his legal assessment of the clip, the Judge also made an “aesthetic” one
“Whilst there might be a gasp (so to speak) of concern and apprehension when listening to and seeing the early parts of the clip, by the time it concluded one would know that it lacked any cohesion or spine of rationale and it was filled with vacuous repetition and confusion. It made quite a low grade impression on the Court and it would be expected I dare say to do likewise to most serious viewers of it…..
The defendant predictably, presented as a bright and typically articulate young man with ease of understanding of things “cyber” and with a level of competence in computer skills that is common for people of his age these days, but his passion, should it be accepted in good faith, to protect freedom of expression on the internet, and his outrage at perceived endeavours to trammel that, was expressed in a fairly immature way and without any ideological conception…
To describe the grotesque threats as being a joke, is trite also – even repugnant, but that does not go so far as to establish beyond reasonable doubt that he had the intention to significantly disrupt an infrastructure”[19]
Commentary
The Joseph case presents some interesting aspects of the use of the medium. Perhaps most significantly the video that was placed on YouTube was not made available for public searching. It was available only to those who were aware of the link. This means that the ability to distribute the message is in the hands of the person uploading the material to YouTube. A person may therefore post something to YouTube that is truly frightening or menacing, but which may never be available to the public. In such a situation the “communication of information” may be far removed from the mischief that the Statute seeks to address. This demonstrates the care with which one must approach the issue of dissemination of information on the various platforms available on the Internet. The utilisation of the medium may have an aggravating or mitigating effect upon the message.
Mr. Joseph went a step further. Instead of making the link available to a select few close friends he distributed the message to a number of “public” organisations, news media among them. Interestingly enough his threat was not published in the mainstream media and it was left to those who assess communications threats – the GCSB – to do something about the message. However, by making the link available to the news media and other organisations it was clear that Mr Joseph wanted to get his message widely published.
Interestingly the “freedom of expression” aspect of the message was not addressed although s. 307A(4) provides a specific exemption for political or industrial action and associated speech. The mere fact of protest does not of itself provide a basis for inferring that an offence against s. 307A(1) has been committed. Of course, in this case the Judge not only needed to consider the motivation for the message as well as its content . But the debate on the Counterterrorism Bill, which contained the proposed s. 307A, makes it clear that freedom of expression issues concerned the legislators.
During the debate on the Counterterrorism Bill[20] Keith Locke MP made the following observation:
“Perhaps the most dangerous change is the proposed new section 307A of the Crimes Act, in clause 7, that could lead to heavy penalties for people threatening to engage in forms of protest action that cause “major economic loss to one or more persons”. Let us consider the current debate over the foreshore and seabed, particularly over consents for marine farming. Various Māori spokespeople have talked about the possibility of taking direct action. Under this provision, if Marlborough Māori even so much as threaten to conduct some protest on the water that might affect the establishment and functioning of a marine farm, they could get up to 7 years in jail. The same applies to groups that threaten to pull out GE food crops planted after the moratorium is lifted.
Trade union strikers could also be hit by this law. Unions often threaten industrial action if negotiations break down. There is a so-called comfort clause, new section 307A(2), which provides that threatening a strike “by itself” is not criminal. But that does not stop threatening a strike from being against the law if it will cause major economic loss. We all know that the aim of strikes is to cause the maximum economic disruption of a workplace in order to get the employer to negotiate more reasonably. Section 307A(2) is clearly a threat to the right of protest and free speech.”[21]
When the Bill went to the Committee of the Whole on 21 October 2003 Mr. Locke raised some concerns about the effect of what was to be come s.307A(4), describing it as a “comfort clause”.
“If someone who is involved in protest action does actually cause the effects I have just described, he or she is still covered, despite this comfort clause. But I have put forward an amendment. If people think that strikes, lockouts, and legitimate protests are protected under this clause, then I have moved an amendment to cut out the two words “by itself” so it would be clear that people involved in strikes, lockouts, industrial action, and other protest action will not be covered by that.” [22]
Dr. Wayne Mapp[23] answered Mr. Locke’s criticism as follows:
“People would have to do two things, in fact, not one. Their actions have to intend the effect of one of these offences: they have to affect the civilian population of New Zealand, not just one person but the entire population or a large chunk thereof; and, they have to do something that would threaten an infrastructure facility—something pretty fundamental. The next thing mentioned in the section is the civil administration of the country, and, finally, the commercial activity. These are global concepts—actions cannot be narrowly focused…..
In essence, two things are required. Firstly, one has to have an “effect”, and, prior to the dinner break, I listed the effects. They are things of widespread significance to New Zealand—that is, affecting our civilian population, the infrastructure facility, civil administration, or commercial activity. These are not individual activities, in my view. They are something of general effect. That is how the words will be interpreted. That is the first test that has to be satisfied—namely, an effect. In addition, a “result” has to be intended. They are: creating a risk to the health of one or more people—admittedly that is narrower, in the sense of numbers; causing major property damage; causing major economic loss to one or more persons; and causing major damage to the national economy of New Zealand. The fact is that those are accumulative requirements—the widespread effect, leading to the result—both of which must be in the contemplation of the person. It is those two things together that would cause the activity to be caught by section 307A.
Then, on top of that, as Mr Locke noted earlier, there is the avoidance provision. So those things are not caught if they are derived from a strike, lockout, industrial action, advocacy, dissent, etc. It is not a complete exemption. Mr Locke has put up a Supplementary Order Paper that would have those as a complete exemption. I believe he is also wrong there. What if the intended outcome of the protest or dissent were this widespread effect, followed with the intended result? Surely one could not be supporting that kind of dissent. After all, one might even argue that Hamas would otherwise be exempted. Yet they conduct terrorist activities on a daily basis, which have these causes, these effects, and these results.”
Clearly the impact of the issue of protest and the threshold that would have to be crossed before protest became behaviour that would be caught by the section was in the mind of the House. It should also be noted that protest, in and of itself, is not the target. There would, as suggested by Dr Mapp, have to be other features of behaviour to engage the section.”
Conclusion
It is unwise to make generalised assertions about communication on a particular platform on the Internet or on the Internet in general. Often the platform will have certain specific characteristics or utilities that a user may employ to limit or enhance the communication of the message. The direct messaging utility in Twitter and the “access by link” utility in YouTube provide a couple of examples. Thus, as is so often the case in the law, context matters[24] and the context of the medium may be as important as the message. Once the medium and its impact has been considered the context of the message must be considered. In both Chambers and Joseph the messages, although described as a joke, were not intended to be taken seriously. This demonstrates the care that must be adopted when addressing the one-dimensional medium of text, unassociated with the other aspects of oral communication such as facial expression, tone, inflexion, body language and other visual aids to communication.[25]
In addition the medium has its own impact. The field of defamation provides an example. Loose talk is common on the internet. Internet users are far more likely to make derisive or personal comments about other contributors to discussion groups or on blogs and comments pages. This increases the likelihood of defamatory material being produced. The internet, and especially email, encourages a new kind of language that is more clipped, blunt and capable of misinterpretation.[26] Burrows and Cheer[27] warn that words can be coloured by their surroundings and thus may be defamatory or not depending upon the context in which they occur[28] – the question must be asked whether the ordinary, reasonable reader reads messages on a bulletin board in the same way as if it were published in a daily newspaper:[29]
Certainly there is a culture of robust speech on the Internet. In its early days the internet was a place dominated by technophiles, academics and workers in the computer industry who have been described as having a strong collective sentiment towards anarchy, libertarianism and free speech rights. Thus a culture of free and frank speech developed, regulated to a degree by the users themselves. There are many examples of “flaming” or “flame wars” that were abusive and in which libellous comments could be exchanged, but it was part of the culture of the internet and although not actively promoted was at least tolerated.[30]
Both Chambers and Joseph are illustrative of the sometimes hyperbolic communication that characterises some content on platforms on the Internet. In this respect it may be useful for those investigating and considering laying charges which seem to amount to “harmful digital communication” to consider carefully the overall context of the communication. In Chambers the Court did just that, observing the fact that there was easy identification of Mr Chambers, and the use of double exclamation marks along with the accused’s own explanation.
Within a wider framework the two cases demonstrate some of the underlying enabling qualities of the digital technologies and the Internet. The development of Web 2.0 and the rise of citizen journalism by bloggers, the ways in which user created content can become available to a worldwide network via social media such as Twitter, Facebook, blogs and YouTube pose fresh challenges for those who have to assess threats. I have described some of these qualities elsewhere.[31] Those of participatory information creation and sharing, dynamic information, persistence of information, dissociative enablement and permanent connectedness seem to be applicable in this case. These are qualities underlying the Internet and digital communications systems that are going to pose problems for those upon whom harmful digital communications have an impact, whether as recipients, investigators or decision makers. What is of concern is that the opportunities afforded by the Internet in terms of giving effect to freedom of expression run up against fear and misinterpretation. Chambers and Joseph demonstrate the care that must be taken.
[1] Marshall McLuhan Understanding Media: The Extensions of Man – Critical Edition Terrence Gordon (ed) (Gingko Press, Berkeley CA 2003) p. 17 et seq
[2] I have italicised the relevant parts of the section with which Mr Chambers was charged.
[8] It has subsequently been reported that notwithstanding advice from the Crown Prosecution Service that prosecuting the appeal may no longer be in the public interest, the Director of Public Prosecutions decided to proceed.
“The CPS even sent Chambers and his solicitor, free-speech campaigner David Allen Green, papers stating that it now agreed that the case should end. However, at the last minute the DPP, former human rights lawyer Keir Starmer, overruled his subordinates, it is alleged.” Nick Cohen “’Twitter joke’ case only went ahead at insistence of DPP” The Guardian 28 July 2012 http://www.guardian.co.uk/law/2012/jul/29/paul-chambers-twitter-joke-airport (last accessed 29 July 2012)
[9] [2006] 1 WLR 308 (Divisional Court) and [2006] 1 WLR 2223 (House of Lords)
If another user’s Tweets are protected, you will not be able to retweet their content. You can see their Tweets in your timeline because they have accepted your follow request, but because they have chosen not to share their Tweets publicly, their Tweets cannot be retweeted by you or anyone else.
If you see the lock iconnext to the user’s name and information on their profile page or on their Tweets, their Tweets are protected and you will not be able to share their Tweets on your timeline through Twitter’s retweet feature. Twitter Help Center “Why Can’t Some Tweets be Retweeted” https://support.twitter.com/articles/77606-faqs-about-retweets-rt (last accessed 29 July 2012)
[14] Unreported District Court Manukau CRI 2011-092-014673 21 June 2012 Thorburn DCJ
[26] P Quirk “Defamation in Cyberspace and the Corporate Cybersmear” in A Fitzgerald and others (eds) Going Digital 2000 Legal Issues for E-Commerce Software in the Internet (Prospect Media Pty Ltd, St Leonards, 2000) at 298; J Tunstall Better, Faster Email: Getting the most out of email (Allen & Unwin, Sydney, 1999).
[27] J Burrows and U Cheer Media Law in New Zealand (5th ed, LexisNexis, Wellington, 2010) at [2.2.4(b)(v)].
[28] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.
[29] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.
[30] Judge David Harvey internet.law.nz 3rd ed (LexisNexis, Wellington, 2011) p. 603
The delivery of reasons for decisions by Judges has been an essential part of the common law and the development of precedent. In the past there were arguments advanced why Judges should not give reasons. Sir Edward Coke made these observations
And in troth, wrote Sir Edward, if Judges should set down the reasons and causes of their Judgments within every record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be elephantini libri of infinite length and in time opinion lose somewhat of their present authority and reverence
One wonders what Sir Edward would have thought of the modern law library.
William Hudson in his Treatise on Star Chamber suggested that ego was a reason why Judges might give reasons, making them seem wiser than they were. But times have changed and our books and databases are full of the reasons why Judges come to certain conclusions.
Originally, at least in England, these decisions were given orally from the Bench. Later in both time and practice, the decisions were recorded by law reporters and published in print. And the decisions, naturally, were in text and that is the situation down to today. Judges use words to express their reasons and on occasion attend courses on judgment writing so that their decisions may be articulated with greater structure and clarity.
But the digital age gives us more tools with which we may advance reasons for a conclusion. A couple of years ago I was faced with a case which involved the interpretation not of words but of television advertisements. There were competing interpretations as to the meaning of the advertisements. One interpretation would have the result that the advertisements breached the law.
Reducing the advertisements to words failed to convey the impact of the advertisement. The message lay not only in the words, but in the way in which images and music were used, the way in which skillful use of camera and editing created atmosphere and tension. Now whilst words could well convey some of the essence of the advertisement, something was lacking.
And so I created a digital version of the decision that I wrote for the case which included embedded video of the advertisements and released the decision which was also made available in hard copy and which contained links to copies of the advertisements which I posted to YouTube. Rick Shera got hold of the decision and blogged on the topic, including a copy of the decision.
The next year, 2011, I was invited to present a paper on the topic of the Digital Decision at the National Center for State Courts Courts Technology Conference (CTC2011) in Long Beach, California.
The Long Beach Convention Center
A copy of the program may be found here. A copy of my presentation may be found here.
But there were other issues that related to using multimedia tools in the process of articulating a decision. What about things like authentication, reliability, changing formats, legacy software, codecs and the like.
The article that follows is the paper that sits behind my CTC presentation and analyses and considers the rationale for the Digital Decision and addresses some of the issues surrounding the use of them. Suffice to say that the use of such decisions will not be appropriate in every case, but this paper may help dispel some of the fears or reluctance surrounding the creation and use of such a decision. I hope that you will find it interesting and informative.
The IT Countrey Justice 