On 25 July a new online safety code came into effect. It was drawn up and agreed between a number of online players such as Netsafe, NZTech, Meta (owner of Facebook, Instagram and WhatsApp), Google owner YouTube, Twitch-owner Amazon, Twitter and TikTok.
The Code obliges tech companies to actively reduce harmful content on relevant digital platforms and services in New Zealand as the country grapples with what Netsafe calls a 25 per cent increase in complaints about harmful content over the past year.
It has drawn criticism from InternetNZ and Tohatoha. One of the criticisms is that the Code is very much a work in progress. This cannot be seen as a problem. Any attempt to address harmful content on digital platforms in a dynamic and everchanging environment such as the Internet must be a continuing and developing task that organically morphs to deal with changes in the digital and content ecosystem.
However, there are other concerns surrounding the development of the Safety Code and the way in which it is to be funded and administered, the most concerning being what seems to be a conflict of interest.
As to the development of the Safety Code the concern is that consultation and the process of development was limited. It was conducted primarily through the agency of Netsafe who co-ordinated the development process. Accordingly there seems to have been little input from other agencies such as Tohatoha and InternetNZ, at least until the first draft was released in February 2022. Civil society organisations nor community representatives were not engaged to the same extent. The view is that online safety must be developed with the community at the forefront. The perception is that there was a “coziness” between Netsafe (who will appoint the Administrator) and the corporates.
This criticism is directed primarily at the legitimacy of the Online Safety Code. It suggests quite properly that there should have been wider involvement of the Online Community from the outset rather than being consulted from time to time. The Code would have greater acceptance had it been developed from the ground up with deep involvement by the wider community. Doubtless there were consultations and certainly a draft of the Code was released in February 2022 but that was a call for comment of a developed proposal rather than seeking detailed input on the devising of the proposal itself.
There should have been a greater level of engagement with the wider community in the development of the proposal if only to ensure that there would be consensus on what was ultimately devised and a level of acceptance of the legitimacy of the Code. As matters stand, those who were not deeply involved will be able to stand on the side-lines and criticise as indeed organisations like Tohatoha and InternetNZ are already doing. Given that situation the legitimacy of the Code, at least as far as the wider community is concerned, is questionable.
Another of the criticisms is associated with that of legitimacy and is directed to what is perceived as a conflict of interest.
The key conflict of interest is that NetSafe would be taking funding from the very organisations it is set up to regulate. In addition, the big platforms know that there is a government media regulation review underway. The Code is perceived as an attempt to undermine what should be the public process of the media regulation review which is conducted by Government and any legislation emanating from such review would go through the Select Committee process and the scrutiny of parliament, the media and the general public. The perception is that in developing the review as essentially a non-Government process NetSafe is undermining democratic processes, in collusion with tech platforms.
This criticism has a number of difficulties. Taken to its logical conclusion, it suggests that any form of industry regulation must be government-led. This ignores the various industries and interests that have developed their own methodologies for regulating their own operations in the wider and more public sense. After all, who better to develop a regulatory system than those who have an intimate knowledge of what is to be regulated and who can devise something workable. Involving government would be to add layers of complexity and an absence of specialist knowledge.
But to be fair, this is not the first time that a review of media regulatory structures has been proposed. In 2011 the New Zealand Law Commission released an Issues Paper entitled “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age”. This was in response to a Government request for a review of the legal and regulatory environment in which New Zealand’s news media and other communicators are operating in the digital era. After a lengthy consultation period which was punctuated by a further paper recommending the enactment of Harmful Digital Communications legislation, in 2013 the final report was released.
What had happened over the lengthy consultation period was that those active in the digital space including mainstream media looked at the regulatory structures that were discussed by the Law Commission in the Issues Paper. There were existing regulatory bodies like the Advertising Standards Authority and the Press Council (which were industry funded and voluntary bodies) and the Broadcasting Standards Authority which was a Government Agency. There were no bodies that dealt specifically with the online space. It was clear to those involved in the dissemination of information online – mainstream media as well as bloggers and the alternative online media – that a regulatory model was on the way. To try and provide an alternative to a government led initiative the Online Media Standards Authority was set up. This was a private organisation, funded by the media itself. Membership was voluntary. It had a complaints process and the Tribunal hearing complaints was chaired by a retired High Court Judge. It dealt with complaints about online media on the same basis as the Press Council dealt with mainstream news organisations.
When the Law Commission report finally came out in 2013 it recommended a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA. This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.
The NMSA and the regulatory model proposed by the Law Commission did not come to pass. As it happened OMSA recognised that in some respects its role was redundant, that there was a very low level of work for it and that it should merge with the Press Council which is what happened. The name of the new regulatory body – still voluntary, still funded by the media – is the New Zealand Media Council or NZMC. The members of the Council are drawn from a wide array and the Chair is the Hon Rayner Asher QC, a former High Court and Court of Appeal Judge.
This example demonstrates that there is nothing sinister in organisations establishing and funding their own regulatory structures, even when there is Government interest going on in the background. As I have suggested before, it is often preferable for an industry to regulate itself rather than submit to some “one size fits all” model proposed by Government.
This, then leads to some concerns that I have regarding the critique delivered by Tohatoha and endorsed by a number of other bodies including InternetNZ.
Tohatoha says
“In our view, this is a weak attempt to pre-empt regulation – in New Zealand and overseas – by promoting an industry-led model that avoids the real change and real accountability needed to protect communities, individuals and the health of our democracy, which is being subjected to enormous amounts of disinformation designed to increase hate and destroy social cohesion.”
The statement goes on to say
“We badly need regulation of online content developed through a government-led process. Only government has the legitimacy and resourcing needed to bring together the diverse voices needed to develop a regulatory framework that protects the rights of internet users, including freedom of expression and freedom from hate and harassment.”[1]
These statements must give cause for concern. The first concern is that it suggests that there should be regulation of content on the Internet. The second concern is that this should be through a government-led process. I have already commented on the problems that Government brings to the table in the field of regulation. For Government to be involved in the regulation of news media or indeed any medium that involves the communication of ideas is something that requires a great deal of care. Already Government is involved in a number of areas, such as the enactment of the Films, Videos and Publications Classification Act and the Harmful Digital Communications Act. In addition there is Government involvement in the broadcasting spectrum surrounding the licensing of frequencies under the Radicommunications Act 1989 (and regulations made thereunder) the Telecommunications Act 2001 and the Broadcasting Act 1989.
It seems to me that Tohatoha has overemphasized its advocacy role and overlooked the implications of what it is suggesting. It is clear that by suggesting regulation of content it means a form of control of content. There is another word for this and it is censorship. That a government should lead such regulatory (censorship) process is of even more concern.
Censorship has always been on the side of authoritarianism, conformity, ignorance and the status quo. Advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated and more open to progress.[2]
Finally there is a concern about a loss of social cohesion. By this term what is really meant is a form of coerced conformity and as John Stuart Mill recognized, the most dire threat to freedom comes from social conformity which leads to a shortage of diversity – of inclination, interest, talent and opinion and makes eccentricity a reproach.
Lockdown has its benefits. For some time I have been asked whether or not I would contemplate a 5th edition of “internet.law.nz – selected issues.” After 4 editions including a revised 4th edition my inclination had been that I had written enough on the subject, but a review of the 4th edition together with a review of what I had written in other for a persuaded me that a 5th edition might be a possibility. Lockdown has given me the perfect opportunity to research and write in the comparative peace and solitude that accompanies Alert Level 4.
The approach that I propose will be different from what has gone before, although much of the material in earlier editions will be present. But the focus and the themes that I want to examine differ. I am interested in the regulatory structures that are being applied to the online environment and in particular I am interested in the area of content regulation. This involves a number of areas of law, not the least of which is media law and there is quite an overlap between the fields of media law and what could loosely be termed cyberlaw.
What I am trying to do is examine the law that it has developed, that is presently applicable and what shape it may likely have in the future. In this last objective I am often assisted by proposals that governments have put forward for discussion, or proposed legislation that is before the House.
In this piece I consider a review of content regulation. The proposal, which was announced on 8 June 2021, is extremely broad in scope and is intended to cover content regulation proposals and mechanisms in ALL media – an ambitious objective. What follows are my initial thoughts. I welcome, as always, feedback or comments in the hope that the finished product will be a vast improvement on what is presently before you.
The Proposals
A comprehensive review of content regulation in New Zealand was announced by Minister of Internal Affairs, Hon Jan Tinetti, on 8 June 2021. The review is managed by the Department of Internal Affairs, with support from the Ministry for Culture and Heritage.
The review aims to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of content, regardless of how it is delivered.
The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press.
Content is described as any communicated material (for example video, audio, images and text) that is publicly available, regardless of how it is communicated.
The need for the review arises from a recognition of media convergence. The review outline states that the ongoing evolution of digital media has resulted in significant and growing potential for New Zealanders to be exposed to harmful content. This was made evident by the livestreaming and subsequent uploading of the Christchurch terror attack video.
Our existing regulatory system was designed around a traditional idea of ‘analogue publication’, such as books, magazines and free-to-air TV, and does not have the flexibility to respond to many digital media types. As a result, it addresses harm in a shrinking proportion of the content consumed by New Zealanders and provides little protection at all for digital media types which pose the greatest risk for harmful content.
The increase in the potential for New Zealanders to be exposed to harmful content is compounded by the complexity of the regulatory system. Different rules apply for content hosted across media channels. This increases difficulty for New Zealanders when deciding what content is appropriate for them and their children and creates confusion on where to report harmful content.
There is also an uneven playing field for media providers as some types of media are subject to complicated regulatory requirements and some to no regulations at all.
The introduction to the review notes that New Zealand’s current content regulatory system is made up of the Films, Videos, and Publications Classification Act 1993, the Broadcasting Act 1989 and voluntary self-regulation (including the New Zealand Media Council and Advertising Standards Authority). The Office of Film and Literature Classification and the Broadcasting Standards Authority are statutory regulators under their respective regimes.
New Zealand’s content regulatory system seeks to prevent harm from exposure to damaging or illegal content. It does this through a combination of classifications and ratings to provide consumer information, and standards to reflect community values. These tools are designed to prevent harm from people viewing unwanted or unsuitable content, while protecting freedom of expression.
What is proposed is a broad, harm minimisation-focused review of New Zealand’s media content regulatory system which will contribute to the Government’s priority of supporting a socially cohesive New Zealand, in which all people feel safe, have equal access to opportunities and have their human rights protected, including the rights to freedom from discrimination and freedom of expression.
The objective of social cohesion was one of the strong points made by the Royal Commission on the 15 March 2019 tragedy in Christchurch.
The review recognises that a broad review of the media content regulatory system has been considered by Ministers since 2008 but has never been undertaken. Instead piecemeal amendments to different frameworks within the system have been made to address discrete problems and gaps.
The problems posed by the Digital Paradigm and media convergence, coupled with the democratisation of media access has, in the view expressed in the briefing paper resulted in significant and growing potential for New Zealanders to be exposed to harmful media content. Our existing regulatory frameworks are based around the media channel or format by which content is made available and do not cover many digital media channels. This model does not reflect a contemporary approach where the same content is disseminated across many channels simultaneously. As a result, it provides protection for a decreasing proportion of media content that New Zealanders experience. This means that New Zealanders are now more easily and frequently exposed to content they might otherwise choose to avoid, including content that may pose harm to themselves, others, and society at large.
What is proposed is a harm-minimisation focused review of content regulation. This review will aim to create a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of media content, regardless of how it is delivered. The framework will still need to protect and enhance important democratic freedoms, including freedom of expression and freedom of the press. The threshold for justifying limitations on freedom of expression will remain appropriately high.
Given the emphasis on social cohesion it is not unexpected that the Review is part of the Government’s response to the March 2019 Christchurch terrorist attack, including the Christchurch Call and responding to the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain.
It is noted that in addition to the formal structures under the Films Videos and Publications Classification Act and the Broadcasting Act are voluntary self-regulatory structures such as the Media Council and the Advertising Standards Authority are the provisions of the Harmful Digital Communications Act and the Unsolicited Electronic Messages Act. These structures, it is suggested, are unable to respond to are coming from contemporary digital media content, for example social media. The internet has decentralised the production and dissemination of media content, and a significant proportion of that content is not captured by the existing regulatory system.
Examples of the harmful media content affecting New Zealanders are:
adult content that children can access, for example online pornography, explicit language, violent and sexually explicit content
violent extremist content, including material showing or promoting terrorism
child sexual exploitation material
disclosure of personal information that threatens someone’s privacy, promotion of self-harm
mis/disinformation
unwanted digital communication
racism and other discriminatory content
hate speech
What is proposed is a harm-minimisation focused review of content regulation, with the aim of creating a new modern, flexible and coherent regulatory framework to mitigate the harmful impacts of all media content. The regulatory framework will balance the need to reduce harm with protecting democratic freedoms, including freedom of expression and freedom of the press. The framework will allocate responsibilities between individuals, media content providers, and Government for reducing harm to individuals, society and institutions from interacting with media. The framework will be platform-neutral in its principles and objectives, however, it will need to enable different approaches to reaching these objectives, spanning Government, co-regulatory and self-regulatory approaches. It will also include a range of regulatory and non-regulatory responses.
The following principles are proposed to guide the review:
a. Responsibilities to ensure a safe and inclusive media content environment should be allocated between individuals, media content service providers (analogue, digital and online providers), and Government;
• Individuals should be empowered to keep themselves safe from harm when interacting with media content;
• Media content service providers should have responsibilities for minimising harms arising from their services;
• Government responses to protect individuals should be considered appropriate where the exercise of individual or corporate responsibility cannot be sufficient. For example:
• Where there is insufficient information available to consumers about the risk of harm;
• Where individuals are unable to control exposure to potentially harmful media content;
• Where there is an unacceptable risk of harm because of the nature of the media content and/or the circumstances of the interaction (e.g. children being harmed by media content interactions);
b. Interventions should be reasonable and able to be demonstrably justified in a free and democratic society. This includes:
Freedom of expression should be constrained only where, and to the extent, necessary to avoid greater harm to society
The freedom of the press should be protected
The impacts of regulations and compliance measures should be proportionate to the risk of harm;
c. Interventions should be adaptive and responsive to:
• Changes in technology and media;
• Emerging harms, and changes to the scale and severity of existing harms;
• Future changes in societal values and expectations;
d. Interventions should be appropriate to t he social and cultural needs of all New Zealanders and, in particular, should be consistent with:
• Government obligations flowing from te Tiriti o Waitangi;
• Recognition of and respect forte ao Maori and tikanga; and
e. Interventions should be designed to maximise opportunities for international coordination and cooperation.
It will be noted that the proposed review and the principles guiding it are wide-ranging. It seems that the objective may be the establishment of a single content regulatory system that will allow for individual responsibility in accessing content and media responsibility for ensuring a minimisation of harm but with a level of State intervention where the steps by individuals or media providers may be insufficient. The guiding principle seems to be that of harm.
At the same time there is a recognition of the democratic values of freedom of expression and freedom of the press. The wording of section 5 of the New Zealand Bill of Rights Act is employed – that interventions should be reasonable and demonstrably justified in a free and democratic society and that responses should be proportionate to the level of harm.
It is interesting to note that the proposed interventions should be flexible and able to adapt to changes in technology and media, the nature of harm and any future changes in societal values and expectations.
Commentary
In many respects the proposals in this outline seem to be those of an overly protective State, developing broad concepts of harm and “safety” as criteria for interference with robust and often confronting expression. It is quite clear that the existing law is sufficient to address concerns about expressions such as threats of physical harm. However, the concept of harm beyond that is rather elusive. The problem was addressed in the Harmful Digital Communications Act 2015 which defines harm as “serious emotional distress”. But a broader scope seems to be applied to harm in the context of this review and that is exemplified by the concept of social cohesion. In addition are some of the categories of content that must give rise to concern and that may well create a tension between freedom of expression on one hand and elements of social cohesion on the other. One example is that of misinformation or disinformation which seems to suggest that there is but one arbiter of accuracy of content that leaves little room for balanced discussion or opposing views. The arbiter of content could describe any opposing view as misinformation and thereby demonise, criminalise and ban the opposing view on the basis that opposition to the “party line” has an impact upon social cohesion.
A matter of concern for media law specialists as this review progresses must be the cumulative impact that content regulation initiatives may have on freedom of expression. I cite as examples proposals to address so-called “hate speech” and the Chief Censor’s report “The Edge of the Infodemic: Challenging Misinformation in Aotearoa.” These proposals, if enacted, will give legislative fiat to a biased form of expression without allowing for a contrary view and demonstrates a concerning level of misunderstanding about the nature of freedom of expression (including the imparting and receiving of ideas) in a free and democratic society.
As matters stand content regulatory systems in New Zealand as discussed have some common features.
There is an established set of principles and guidelines that govern the assessment of content.
There is a complaints procedure that – as far as media organisations are concerned – involves an approach to the media organisation prior to making a complaint to the regulatory body
There is a clear recognition of the importance of the freedom of expression and the role of a free press in a democratic society
That in respect to censorship the concept of “objectionable” is appropriately limiting given first that the material may be banned or restricted and second that there may be criminal liability arising from possession or distribution of objectionable material.
Guiding principles are based primarily upon the public interest. The Content Review focus on social cohesion is more than a mere re-expression of the public interest concept.
One thing is abundantly clear. The difficulty that regulatory systems have at the moment surrounds continuing technological innovation. To some extent the New Zealand Media Council recognises that and has adapted accordingly. Otherwise there is little wrong with the processes that are in place – at least in principle. If complaints procedures are seen to be unwieldy they can be simplified. The public interest has served as a good yardstick up until now. It has been well-considered, defined and applied. It would be unfortunate to muddy the media standards and public discourse with a standard based on social cohesiveness, whatever that may be. Fundamentally the existing regulatory structures achieve the necessary balance between freedom of expression on the one hand and the protection of the public from objectionable content on the other. Any greater interference than there is at present would be a retrograde step.
“It is silly of you, for there is only one thing in the world worse than being talked about and that is not being talked about.”[1]
Introduction
This article considers the Court of Appeal decision in X(CA226/2020) v R[2] (referred to hereafter as X v R) and its discussion of non-publication orders, extreme hardship and the impact of social media as an element of extreme hardship that might justify a Court in considering whether or not to make a non-publication order.
I shall commence with an overview of the statutory provisions regarding discretionary non-publication orders pursuant to s. 200 of the Criminal Procedure Act 2011. I shall then proceed to a consideration of the decision of the Court of Appeal and focus especially on its analysis of the role of social media as an element of extreme hardship which may provide grounds for the exercise the discretion to make a non-publication order. In the course of that discussion I shall carry out an examination of exactly what social media is – a slightly more nuanced consideration than that undertaken by the Court. I shall conclude with a consideration of some of the possible implications of the decision and how, in many respects, despite its apparent willingness to engage with new media, there may be some unintended consequences that flow from the case.
Discretionary Non-Publication Orders
The Statutory Background
The Criminal Procedure Act 2011 contains a number of provisions that regulate when the media may report proceedings before the Court, when the public may be present before the Court and, in those circumstances whether and when the news media, in their role as public surrogates, may report those proceedings. There are provisions that automatically impose non-publication or suppression orders in certain cases.
There are provisions which give the Court a discretion to impose non-publication orders. The starting point for such consideration must be the principle of open justice and that the proceedings before the Court and the details of those appearing should, prima facie be amenable to publication. The Act sets out very clear guidelines applicable to the making on non-publication orders relating to defendants. In addition there are provisions applicable to the suppression of names and details of witnesses, victims and other connected persons. There are also provisions which deal with the non-publication of evidential material and the circumstances under which such orders may be made.
Section 196 of the Criminal Proceedings Act 2011 provides statutory recognition of the principle that Court proceeding should be open to the public although it recognises that there are exceptions where the hearing may be “on the papers” or where sections 97, 197 and 199 come into play along with the provisions of any other enactment.
Non-Publication of the Identity of the Defendant
The making of discretionary non-publication orders – colloquially referred to as suppression orders – has been contentious for many years, notwithstanding clear directions from appellate Courts.
The making of a suppression order is discretionary, although the discretion is not unfettered and must be exercised judicially, taking into account the tests that are set out in s. 200(2). The exercise of the discretion arises after the Court is satisfied that one or more of the matters referred to in s. 200(2) is likely to follow.[3] In exercising the discretion, The Court must recognise that the starting point is the prima facie presumption in favour of open justice and openness in reporting Court proceedings.[4]
The discretion to order non-publication should be used sparingly, and is an exception to the principle that the public has the right to know the identity of those who appear before the Courts. In serious cases suppression orders should be made with the utmost caution.
The Threshold Test
Before considering whether or not to exercise the discretion the provisions of section 200(2) must be satisfied. This is the threshold test.
There are eight criteria. The court must be satisfied that publication would be likely to:
cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or
cast suspicion on another person that may cause undue hardship to that person; or
cause undue hardship to any victim of the offence; or
create a real risk of prejudice to a fair trial; or
endanger the safety of any person; or
lead to the identification of another person whose name is suppressed by order or by law; or
prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
prejudice the security or defence of New Zealand.
It should be noted that the criteria are stated disjunctively.
Extreme Hardship
A very high level of hardship must be established. This must go beyond the normal sort of hardship such as embarrassment, severe suffering or privation. Extreme hardship must be greater than the “undue hardship” test in s.200(2)(b) and (c).[5] It must be well beyond the ordinary consequences that may be associated with publication. There must be a comparison between the hardship argued and what might normally attract in the case of publication of the name of the defendant.
The test for assessment of extreme hardship is an objective one which should take into account the circumstances and seriousness of the offence and of the particular defendant. Matters such as mental health, suicide risk, emotional distress, youth and rehabilitative prospects may be examples.[6]
The effect upon family members may be taken into account when assessing extreme hardship. Circumstances such as possible fatal consequences for the wife of the defendant who had a heart condition, similarity with a unique name and “incalculable consequences” upon family members and possible employment problems have been taken into account.[7]
However, economic factors do not easily take the test beyond the threshold. Financial loss or some form of economic hardship often follow an appearance in Court or an allegation of offending. Name suppression should not be used to protect economic or business interests.[8]
What could amount to extreme hardship and some of the external factors that might be taken into account comprised the central issue in the case of X v R. Because that is the focus of this article I shall consider two other matters that are significant. One is the exercise of the discretion and the other, although not immediately relevant in X v R, is that of non-publication of the names of celebrities.
The Discretion
Only when one or more of the matters referred to in section 200(2)(a) – (h) arise does the exercise of the discretion come into play. The discretion must be exercised judicially. The Court must make up its mind on reasonable grounds and there will necessarily be an evidential onus on the person seeking suppression to provide reasons or a basis for such an order.[9] The element of open justice must be considered and may prevail unless the circumstances clearly favour the making of an order.[10] Factors that may be taken into account in weighing the competing interests are:
whether the applicant has been convicted,
the seriousness of the offending,
the applicant’s youth and the likely impact publication will have on his or her prospects of rehabilitation
other circumstances personal to the applicant
the interest of victims and the interests of other affected persons
circumstances personal to the defendant,
the views of the victim
the public interest in open justice and in knowing the character of the offender
Once a conviction has been entered the weight is more in favour of publication than for suppression. Axiomatically, the presumption of innocence cannot be invoked. There is a strong public interest in knowing the identity of the defendant and any past history of offending that he or she may have. The additional element of a discharge without conviction pursuant to section 106 of the Sentencing Act 2002 arose in X v R.
In exercising the discretion the Court must be satisfied as to the likelihood of one of the consequences set out in section 200(2)(a) – (h). There must be a real or appreciable risk that the consequence will occur and that cannot be discounted.[12]
Notoriety and “Celebrity”
Section 200(3) makes it clear that that fact that a defendant is well-known does not of itself mean that publication of his or her name will result in extreme hardship for the purposes of section 200(2)(a). This subsection was enacted in response to the perception that “celebrities” or those who had a high public profile were arguing that there would be an additional “sting” arising from publication of their names. The reality is that even although that might be the case, the Courts have refused to make such a distinction. It has been made clear that the Courts should not create a special echelon of privileged persons who would enjoy suppression, where their less fortunate compatriots would not.[13]
It must be remembered that although celebrity in and of itself will not constitute extreme hardship, it will be a factor that the Court may take into account, along with other matters, to assess whether or not extreme hardship will be caused. Furthermore, the subsection applies only to the celebrity and not to anyone who may be connected with him or her. In that respect it acts as a qualifier to section 200(2)(a). It does not qualify any of the other grounds applicable under section 200(2).
I shall now turn to discuss the case of X v R.
X v R
The Background
X was discharged without conviction on two common assault charges. These arose from X’s inappropriate inebriated behaviour one evening at a Labour Party youth camp in February 2018, when X was 20.
The allegations were that he put his hand down the pants of another (18-year-old) young man as he was walking past him. X put his hand inside the young man’s underwear and grabbed his penis and testicles for around a second.
Later, around midnight, X assembled with several others for a group photograph. While seated, X reached out and put his hand down the pants of a 16-year-old young man who was also seated for the photograph. X’s hand went on top of the young man’s underwear and reached his genitals before it was pushed away.
A short time later, X again put his hand inside the front of the other’s pants, but his hand was quickly pushed away. An apology was made to the second young man later that night and to the first young man next morning.
In the District Court
Initially five charges of indecent assault were laid and came before the District Court. When the matter went to trial a resolution was reached and the result was that X faced two charges of indecent assault. An application was made for a discharge without conviction which the Crown did not oppose.
An application for name suppression was made and the Judge concluded that the extreme hardship threshold had not been met even although X presented as a first offender of otherwise good character.[14]
In the High Court
X appealed to the High Court. In the High Court[15] Whata J considered:
The scale and nature of the media coverage
The likely vilification of X as a sex offender
The likely impact of publication of X’s name on his ability to gain employment
The likely impact on X’s family and community.
What J noted that media coverage both in mainstream media and on social media had been extensive. He accepted that the media coverage would likely have a significant impact on X, his family and his community, noting that “the imprint this type of coverage will leave with the public could be deep and long-lasting”.
The reputational impact if X’s name was published was likely to be severe and that he would likely be a target not only for legitimate criticism but for unfair vitriol and vilification as a sex offender. Coverage had already had an adverse impact. X had been dismissed from his job and any future employment could be imperilled.
However, Whata J found that the extreme hardship test had not been met. He said:
Given this, the harm [X] is likely to suffer if his name is published is,in my view, extreme in the ordinary sense of the word. But, as stated in D, to qualify under the CPA, the claimed hardship must be something that does not usually attend a criminal prosecution and, ordinarily, the distress and other consequences of media reporting (including vilification and job loss) would not qualify as hardship, let alone extreme hardship. There is something unfair about making this discount in the hardship calculus in this particular case, because of the lack of correspondence between the scale and nature of the media coverage and the actual offending. But that point is one that might be made in a number of cases, and is not strong enough to warrant departure from the orthodox position. And when that orthodoxy is applied, I am unable to find that the publication harm to X amounts to extreme hardship. In short, much of the identified harm is a natural consequence of media coverage of high profile criminal proceedings.[16]
Although it was not necessary for him to do so, in the event that he was wrong about extreme hardship he was of the view that the discretion to suppress X’s name should not follow, relying on the importance of the open justice principle and the requirement of transparency of court processes to maintain confidence in their integrity and independence.
The Court of Appeal
The Issue of Leave
X sought leave to appeal to the Court of Appeal.
Leave to bring a second appeal in a name suppression case must be declined unless the Court is satisfied
(a) that the proposed appeal involves a matter of general or public importance; or
(b) that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[17]
The application for leave stated that there were matters of general or public importance. This was acknowledged by Whata J who said
“this case raises difficult issues about the application of orthodox principles to the facts of this case, and the balance between the public’s right to know and an acquitted individual’s right to be left alone.”[18]
In a somewhat generalized submission it was argued that it was a matter of public importance for this Court to consider the complex interplay between name suppression principles and deemed acquittals, and the impact of extensive media reporting in this unique highly politicised case. The nature of this issue was not specifically identified but was developed by the Court of Appeal later in its decision.
However, the Court considered that the issue of leave could be considered under the miscarriage of justice ground and the submission that What J had conflated ordinary hardship with extreme hardship.
The Court said that in considering extreme hardship
The correct approach is to identify all likely hardship arising from publication, as the Judge here did. But the ultimate assessment of whether the likely hardship would be extreme must be based on all such hardship, looked at cumulatively. It is not “orthodox” to discount some of the identified hardship on the basis it somehow does “not qualify as hardship”. It must all be factored into the “hardship calculus”.[19]
The Court found therefore that there was an error of law in the approach adopted which allowed it to consider the matter afresh.
Revisiting Extreme Hardship
In essence the Court agreed with Whata J’s identification of relevant factors and his assessment of them. However, there were two other matters that the Court considered were highly relevant to the hardship inquiry and these two factors together with those identified by Whata J took the matter over the extreme hardship threshold.
Those factors were the uniqueness of X’s name and the impact of social media.
It was pointed out that X had a name that was unique. No other person had the same name. It was immediately identifiable and there could be no doubt that he would be the person named in mainstream media reports. It also made him a clear and easy target on social media. Potential employers, present or in the future, would have no difficulty making the link. The harm, if his name were published, was likely to be greater and more enduring than others whose names were published in the context of criminal proceeding and, impliedly, may be more common or less unique.
Furthermore X’s name identified him as Muslim and this gave rise to an appreciable risk that he may be targeted on social media, not just because of the sexual aspect of the charges but that he may be vilified due to his cultural or religious background which could not be seen as an ordinary consequence of publication.[21]
The Impact of Social Media
The Court embarked upon a discussion of social media and the effect flowing from publication. It noted that the issue had not been the subject of detailed discussion in the Courts below. The Court considered that the harm likely to be inflicted upon X by social media was highly relevant.
The Court started by considering the role of publication of proceedings as an aspect of open justice. The fair reporting of the criminal process, including the names of defendants, is central to that concept.
Mainstream Media
An aspect of the fairness of reporting is that mainstream media (MSM) is governed by formal guidelines. The standing of members of the media to be heard in criminal proceedings about name suppression is set out in s. 210 of the Criminal Procedure Act 2011. The member of the media must be a person who is reporting and who is either subject to or employed by an organisation that is subject to—
a code of ethics; and…
(ii) the complaints procedures of the Broadcasting Standards Authority or the Press Council.
That definition of a member of the news media appears in the Ministry of Justice Media Guide for Reporting the Courts and Tribunals Edition 4.1[22] and In-court Media Coverage Guidelines 2016[23].
The Court of Appeal made reference to the Press Council, possibly based on the fact that neither the Statute nor the Ministry of Justice Guidelines have been updated to reflect that the Press Council has been replaced by the New Zealand Media Council[24] whose remit is significantly wider than that of the Press Council and which includes what are referred to as “Digital Members” including well-known bloggers and on-line news aggregators.[25]
The supervisory role of such an organization is seen as important because it imposes professional constraints upon MSM together with oversight by the Courts. Because such reportage is constrained and should be fair and balanced, it is unlikely (of itself) that publication of a defendant’s name in mainstream media will give rise to extreme hardship.
Social Media Commentary
The Court then went on to consider commentary on social media and observed that there can be no reasonable expectation that reportage will be fair and accurate, nor is there any realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case.[26] It notes that this represented a problem with which the Courts had yet to grapple.
The Court then made particular reference to some of the very negative aspects of social media use such as trolling, doxing and internet vigilantism. The definitions used by the Court in this context are unremarkable. To “troll” is defined in the Oxford English Dictionary as “To post a deliberately erroneous or antagonistic message on a newsgroup or similar forum with the intention of eliciting a hostile or corrective response.”[27] The term “doxing” does not appear in the Oxford English dictionary but the Court referred to the Oxford English and Spanish dictionary which defines “doxing” as to “[s]earch for and publish private or identifying information about (a particular individual) on the internet, typically with malicious intent”. The term is derived from “dox” – an abbreviation for documents and it generally involves the publication of records of an individual which were private or difficult to obtain. It has a negative connotation because it is often a vehicle for revenge via the violation of privacy.[28] It is a form, along with trolling and other behaviours, of internet vigilantism.
The Court of Appeal then went on to locate the history of section 200 of the Criminal Procedure Act 2011, noting that when the Law Commission advanced the test of extreme hardship in 2009 in its report Suppressing Names and Evidence[29] social media platforms were something of a novelty. It noted that as at 2009 Facebook had been around for five years, Reddit for four, and Twitter for three. Instagram did not yet exist.[30] Although the Law Commission was aware of these platforms and the difficulties in maintain and respecting suppression orders no consideration could possibly have been given to the universality and toxicity of social media’s current form.
The Court also made some observations of what it referred to as the “cancel” or “call-out” culture in which it said social media is weaponised against those deemed to have transgressed the norms of any online group ( or mob).
With respect, that is to take one element of a much larger “cultural” phenomenon. The “cancel culture” is a much wider phenomenon and often involves steps designed to withdraw support for (thus “cancelling”) public figures or companies after they have done or said something that to some is perceived to be offensive. It may involve the public shaming via internet platforms and in its more insidious manifestations it involves the deprivation of a platform (de-platforming) for speakers with whom a group may disagree, often accompanied by threats of violence should the speaker be allowed a platform.[31]
What the Court did note was the effect that public shaming might have when mercilessly inflicted on young people who became embroiled in the criminal justice system.[32]
The Court then compared the position regarding publicity some 10 years ago when publication of one’s name was generally restricted to mainstream media. That level of “hardship” was quite different from what the Court described as
“the potential hardship caused by the pernicious, judgemental, exponential, indelible, and often ill-informed publication on social media platforms is of a quite different magnitude. Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation.”[33]
The remarks of the Court in this regard are very strong and in this commentator’s view need to be read within a very limited context as shall be discussed below.
Certainly there are aspects of social media that can be highly damaging and ill-informed. This has been recognized by Parliament in the enactment of the Harmful Digital Communications Act 2015. But what the Court is doing is contrasting the approach of mainstream media which is generally balanced and subject to oversight with the chaotic cacophony that occurs in some areas of social media. The Court noted the vulnerability of young people and that the effect of “internet shaming” may be lifelong.
The Court was prepared to recognize these factors which, it said “can play out both in the assessment of whether hardship will, in any given case, be “extreme” and in the ultimate weighing exercise required in the exercise of discretion.”[34]
Reconsidering Extreme Hardship
The Court went on to consider the specifics of the case of X, observing that he had not been targeted personally because his name was suppressed.[35] The Court considered a catalogue of posts about the case, the intensity of them and the fact that many of them were clearly abusive and were anything but the objective reportage that one would expect in mainstream media. The Court was of the view that publication of X’s name would intensify the commentary in both number and venom.
The Court was also of the view that what it described as elements of the “cancel culture” which it described as
“a way of bringing justice to those who have escaped it: rich celebrities, corporations or privileged ( often white) offenders who “get off” with a lenient sentence. So here, it is the fact of X’s effective acquittal – which, ordinarily, might be seen as indicating something positive – that is the factor likely to fuel the social media flames. Those who are disposed to use social media in this way will regard their hateful posting as justified by their perception that X has escaped justice.”[36]
Such public shaming could not be seen as an ordinary consequence of publication. In saying that, the Court clearly left unstated that the public shaming aspect would not be a consequence of publication in mainstream media.
Because of these factors, the Court considered that in the relatively unusual circumstances of the case, publication of his name would cause extreme hardship.
The Court went on to consider whether the discretion to make a non-publication order should be exercised. Not unsurprisingly it did. It focused upon X’s youth, his lack of previous involvement in the criminal justice process, the effective acquittal afforded by the discharge without conviction and factors which spoke strongly in favour of his rehabilitation as matters that weighed strongly in favour of suppression.
What public interest would be served by publishing his name? The Court addressed that question in this way
“In reality, the public interest lies elsewhere: in the events themselves, the circumstances in which they occurred, and in the criminal process that led to X’s discharge without conviction. All those matters have been, and can continue to be, fully ventilated by the media.”[37]
The Court did not consider that permitting publication of his name would fulfil any social objective and that the principle of open justice should not be concerned with public shaming. Thus, the Court was stating that where in the circumstances of this case there was a high level of risk of public shaming and vitriolic commentary on social media in respect of a person who, apart from these incidents, had a positive future which could be blighted in the short and long term by such vitriol there was a line to be drawn past which the principles and interests of open justice would not be served.
As a result the Court made a final order suppressing X’s name, address, occupation or identifying particulars.
Commentary
Of particular interest in this case was the recognition by the Court that there was a problem in controlling the dissemination of content on Internet platforms. It was a problem, the Court said, with which the Courts have yet fully to grapple. And this gives rise to issues regarding name suppression – the underlying premises of which were developed for monolithic, centralised mainstream media – in the digital paradigm where there is no centralized publication entity and, in contrast to centralized organisations like broadcast and print media, publication arises on and using a de-centralised and distributed system.
Social Media
Taking the effect of social media into account as a factor in assessing extreme hardship is not of itself unremarkable. Social media, its use and misuse, is a societal reality that cannot be ignored. Because it is used in the communication between and about people it may be placed on the media spectrum.[38]
Social Media and Social Networking are phenomena that have developed on the Internet and are best understood when compared with pre-digital forms of mass media communication. As I have noted earlier, when we think of media we generally think of mainstream news media such as radio, television or newspapers – basically using print or broadcast technologies. Communication using these technologies is generally in the hands of large conglomerates, centrally located with a “one to many” distribution model. In the case of broadcast technologies – putting to one side the recording of broadcast content – engagement with the content provided is on an appointment basis where there viewer\listener must be in the proximity of a receiver to view or listen to the content. Feedback, if any, is generally by means, in the case of newspapers, of letters to the editor. The ability to engage and participate in this form of communication is very limited indeed.
Social media presents an entirely different form of engagement. Rather than a “one-to-many” model social media presents a “many to many” model where anyone using a social media platform can engage in the “conversation” and share a point of view, pictures, video, lengthier comment thus democratising the information and communication space.
Definitions of social media seem to converge around digital technologies emphasising user generated content or interaction.[40] Some definitions focus upon the nature of message construction in social media, defining social media as “those that facilitate online communication, networking and/or collaboration.”[41] Kaplan and Haenlein briefly define social media as “a group of Internet-based applications that build on the ideological and technological foundations of Web 2.0, and that allow the creation and exchange of User Generated Content.”[42]
The problem with a “Web 2.0” characterisation is that it ignores that there is a movement towards mobile handheld devices that are not web-based that contain social media tools as individual applications or “apps.” Lewis suggests that the term social media serves as a “label for digital technologies that allow people to connect, interact, produce and share content.”[43] One of the difficulties with these definitions is that they can encompass other technologies such as email and overlook the unique technological and social qualities that distinguish social media.
A more complex definition suggests that social media can be divided into three parts:
(a) the information infrastructure and tools used to produce and distribute content;
(b) the content that takes the digital form of personal messages, news, ideas, and cultural products; and
(c) the people, organizations, and industries that produce and consume digital content.[44]
This interesting definition identifies a transport layer, a content layer and a form of user interface. However Howard and Parks use specific platforms as exemplars. This focus upon tools overlooks their actual and potential social impacts.
The “platform exemplar” approach may widen or narrow the scope of the definition. Under this approach social media – the media for on-line communication – means online sites and tools that enable and facilitate online interaction and collaboration as well as the sharing and distribution of content.
This wide definition includes blogs, wikis, on-line fora, social networking sites such as Facebook, Linkedin, Instagram and Twitter, content communities such as YouTube, Flikr and Vimeo, social bookmarking and pinboard sites like Delicious, Pinboard and Pinterest, RSS and web feeds, web manipulation and parsing tools, web creation tools and embeddable multimedia.
The Oxford English Dictionary defines social media as “websites and applications which enable users to create and share content or to participate in social networking.”[45] Social networking is defined as “the use of dedicated websites which enable users to interact with one another, find and contact people with common interests etc.”[46]
The focus upon the content layer and the very broad scope of some of the definitions either casts the net too wide or leads to uncertainty and imprecision. There tends to be a general consensus of the tools that may be considered social media but a lack of consensus on what defines these tools as social media.
The definitional approach using exemplars is the one has been adopted by most commentators.[47] Social media tools are recognisable but defining social media in this way limits the opportunity to develop a broad and robust theory of social media. An interaction on Twitter is useful as an exemplar of social media only for as long as Twitter remains stable both in technology and how users communicate through tweets. This model cannot be extended beyond Twitter.[48] Carr and Hayes suggest that there must be a common understanding of social media that is applicable across disciplines and only then can we theorise social media processes and effects.[49]
Although it is important to understand the technology, it is more important to understand how the technology affects user behaviours. Thus to adopt a technocentric approach to social media based on specific devices or tool affordances, often considered to be synonymous with Web 2.0 or the collaborative web,[50] is unhelpful because it tells us little about the development of behaviour.
An additional difficulty is experienced when social media and social networking are conflated. Social network sites have been defined as “web-based services that allow individuals to (1) construct a public or semi-public profile within a bounded system, (2) articulate a list of other users with whom they share a connection, and (3) view and traverse their list of connections and those made by others within the system.”[51] Although social network sites are usually social media tools, not all social media are inherently social network sites.
Thus it can be seen that social media have sometimes been considered as amalgamations of site features and at others defined by specific features or technological affordances, minimizing their unique communicative properties. Carr and Hayes propose a new definition that recognises social media as a distinct subset of media tools that share a common set of traits and characteristics. This is based on the proposition that the content that individuals create and consume provides an intrinsic value that is far greater than the individual site provides. The definition that they suggest is as follows:
Social media are Internet-based channels that allow users to opportunistically interact and selectively self-present, either in real-time or asynchronously, with both broad and narrow audiences who derive value from user-generated content and the perception of interaction with others.[52]
This definition recognises that social media are a phenomenon of the Internet, that there is user autonomy as to the level of participation and that the creation or use of content in one form or another is essential. Thus the only technological aspect of the definition lies with the Internet as the basis for the communication channels.
Carr and Hayes observe that earlier attempts at definition were hampered by the following problems:
An excessive focus upon emerging trends in technology, media and users thus limiting their temporal applicability
Being so broad that they could apply to other forms of communication technology such as e-mail
Being so “discipline specific” that they were too limited to be applicable for the development of theory.[53]
On the basis of their definition and without necessarily becoming too “platform” or “exemplar” specific Carr and Hayes have divided a number of Internet-based communications technologies into social media and those that are not a social medium.[54]
Social Medium
Not A Social Medium
Social network sites – Facebook, Google +, YouTube, Yelp, Pheed Professional network sites – Linkedin, IBM’s Beehive Chatboards and Discussion fora Social/Casual Games – Farmville, Second Life Wiki “Talk” pages Tinder Instagram Wanelo Yik Yak
On-line news services – NY Times Online, PreezHilton.com Wikipedia Skype Netflix E-mail Online News SMS and Texts Ooovoo Tumblr Whisper
It will be clear by now that social media occupies a number of different platforms, fulfils a number of different purposes and can be used and misused. This author finds it useful to follow the Twitter feeds of a number of English and New Zealand legal commentators who use social media as a means to directing followers to articles or cases of interest and at times may post one liners about particular legal problems.[55] To my knowledge none of them have been responsible for the vitriolic commentary referred to by the Court of Appeal as characterising social media commentary.
Social Media Taxonomy
The various platforms identified as social media have certain characteristics that serve to assist in identifying precisely how engagement via a social medium takes place. In this regard it is helpful to consider developing a social media taxonomy. Rather like the definition of social media itself no universally accepted classification system exists. Scholarly and business research studies analyze social media usage behaviors and draw upon past studies to come to an understanding of how business can use social media to market products and services.[56]
The approach that has been undertaken by French social media researcher Frederic Cavazza unashamedly approaches the development of a social media taxonomy on the basis that social media are places, tools and services allowing individuals to express themselves in order to meet, communicate and share. His classification system has been based on first identifying social media tools and classifying them broadly under headings based on what particular aspects of Internet social activity they fulfil.
His first and perhaps best-known classification was developed in 2008 and is entitled “The Social Media Landscape” and is presented in the form of a diagram which reflects subsets of activity in which users may engage.[57]
These include publishing by means primarily of blogs but also by collaborative systems known as Wikis of which Wikipedia is the best example; by platforms devoted primarily to sharing; by discussion fora; by social networking; by microblogging – Twitter is the best known example; by lifestyle activities which include Lifestream, Livecasting; by gaming forms of interaction like virtual worlds of which Second Life is an example, social games and MMO or Massive Multiplayer Online Games which have a significant social component associated with the game.
Cavazza himself acknowledged the dynamic and disruptive nature of Internet social media platforms. Each year he has updated his Landscape which represented the changing face of social media. Online social media is an evolving field with new platforms and features. Access technology has evolved as well. The rise of the mobile or handheld device such as the tablet and the smartphone have changed user access habits. Indeed, smartphones are now the first devices used for communication.
The fate of Google + provides an example of the volatility of Internet social media\networking platforms. Although Google + had featured in Cavazza’s classification for some time it was a platform that had not achieved widespread acceptance and in early 2015 Google developed products knows as Photos and Streams which were elements of Google + but are now distinct from the social network.[58] At the same time the profile links began to disappear. As may be seen from the earlier discussion, profiles form a fundamental part of a social media\network platform.[59] On the other hand new social media\networking platforms have become available, some of them capitalising on live video streaming services such as Meerkat and Periscope.
Not only have social media platforms changed and evolved, but so has Cavazza’s classification system. In 2012 he based his classification not only on a reduced number of activity classes[60] but also surrounded those activities with the various types of device that could be used to access social media.
The latest iteration of Cavazza’s classification system is further simplified[61]. It has become one large ecosystem with six major usages. At the center of social media activity are Facebook, Instagram and associated platforms. Others present are Twitter, Linkedin, YouTube and Snapchat. Social Media platforms fulfil six major usages or activities in the social media\networking ecosystem, namely Publishing, Sharing, Messaging, Discussion, Collaborating and Networking. Mobile applications such as WeChat, Hangouts and Snapchat occupy a central position based primarily upon their multi-functionality within the social media ecosystem.
Cavazza has recognised the importance of the various devices that might be used to interact with Social Media platforms. The proliferation of connected devices such as tablets, desktops, laptops and particularly handheld devices such as smartphones demonstrate the actual and potential ubiquity of social media platforms
Why is this classification important? Primarily a form of classification locates a particular platform within a certain Internet based social interaction. Although the platforms all share the characteristics of social media such as profiles, sharing, communities and the like, they have sometimes subtle, sometimes significant differences in the way in which they work.
Whilst the law regulates behaviour rather than a technology, within the field of Internet based communications it is my contention that there must be an understanding of what the technology does and how it works. A proper understanding of the technology and its purpose will lead to correct and proper decision making that locates a behaviour within its correctly stated technological context.
The Narrow View of Social Media
The difficulty is that the comments of the Court of Appeal have been interpreted as a true characterisation of social media whereas, as will now be apparent, it is in fact a very narrow view of a much larger and more complex phenomenon. Alison Mau[62] picks up on this and has suggested that “for the first time in a New Zealand court, the true, feral, unsocial nature of social media has been examined” and then went on to refer to the Court’s comment that “There can be no reasonable expectation that such reportage (on social media) will be fair or accurate. And there is no realistic way of controlling its content or its spread.”
Mau refers the matter to Professor Warren Brookbanks who sadly adopts the rather weary rhetoric applied to difficulties in regulating social media in describing it as the Wild West[63] (where) people can say the most terrible and destructive things and not be held to account. Sadly, it seems that Professor Brookbanks has overlooked the Harmful Digital Communications Act 2015.
For the purposes of the case, the Court of Appeal has highlighted some of the more unpleasant aspects of social media. But this cannot nor should it be taken as a characterisation of social media in general. Mau herself observes that three and a half million Kiwis are regular users of social media. I am sure that there is no suggestion that all these users are trolls or doxers. Facebook is way out in front as the popular choice and indeed Facebook Live is the platform of choice for the Prime Minister, even although that aspect of Facebook was also responsible for live-streaming the 15 March 2019 massacre.
The Court noted the particular vulnerability of young people in the face of online shaming. It observed that
“ The practical aspect is that the only way a person can protect or shield him or herself from ongoing exposure to online shaming is to go, themselves, offline. And as Danielle Citron has noted[64]:
When individuals go offline or assume pseudonyms to avoid bigoted cyber attacks, they miss innumerable economic and social opportunities. They suffer feelings of shame and isolation. Cyber mobs effectively deny people the right to participate in online life as equals.”[65]
With respect, once again the issue is a little more nuanced that the binary Internet “on” or Internet “off”. In 1997 A Michael Froomkin developed a theory of Internet Governance known as Regulatory Arbitrage. Because of the distributed nature of the Internet, users could “migrate” to a place or regulatory regime that would give them the most favourable treatment. Users could “choose” where they might wish to seek services and base their activities.
Although Froomkin’s example was in the field of choice of jurisdiction or choice of law, the “arbitrage” model is applicable. A user has the option to disengage from a platform where harm is being caused or where communication is hostile and engage with a more “user-friendly” environment. This does not end the economic and social opportunities afforded by the Internet, but rather like a person moving to a new neighbourhood, the opportunity is there to forge new relationships and new communication flows.
Commentators focus upon messages posted on social media websites, or the various activities conducted on social media rather than examining the medium itself and trying to make some sense of that. The focus, as is so often the case, is on the message rather than a consideration of the medium and how it affects or drives communications behaviours. Michael L. Kent states the issue in this way:
“If we take McLuhan’s premise from 1964 that media are “extensions of humans,” then a reasonable question might be, how do social media extend our senses and experiences, not simply how are social media used, which is akin to a study of newspaper readership or Nielsen ratings. I believe that most scholars, professionals, and social media users would agree that social media are different in many ways than the traditional print and broadcast media.”[66]
The fact of the matter is that social media exemplifies the paradigmatic nature of the change in the way we deal with and communicate information within the digital space. Social media is a complex phenomenon. It has, as Petra Theunissen suggests, co-existing multiple states and potentialities rather than simply a sender to receiver information dissemination tool that has been the approach of most social media commentators. Theunissen concentrates not upon the content of communication, which has been the focus of most studies, but upon the logic and potential of the medium and the technology.[67] It is to be hoped that in subsequent examinations of social media phenomenology to Court will take a more nuanced view.
Unintended Consequences
A consideration of hostile treatment on social media as an element of extreme hardship is not going to be available to every person seeking name suppression. But there are three possible consequences that may not have been intended by the Court of Appeal
Social Media Shuts Out Mainstream Media
Assuming for the moment that MSM engages in responsible journalism were it not for the social media element, X’s name would more likely have been published in a newspaper or on broadcast news. Indeed, it may well have been published in online MSM platforms.
Effectively MSM has been excluded from fulfilling its role in ensuring the importance of transparency and of open justice because of the toxic level of discussion on social media which has tipped the balance in favour of extreme hardship. There is a certain irony in this in that MSM reporters frequently use social media content for their stories and Twitter feeds regularly appear in online stories published by MSM.
In this commentator’s view MSM, who have a right to be heard in applications for suppression orders[68] should be alert to ensure that their role in the effective reporting of court proceedings is not undermined by undue emphasis upon the impact of social media in suppression cases.
The Problem of Celebrity
As I earlier noted, section 200(3) of the Criminal Procedure Act 2011 provides as follows:
“The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).”
This subsection was enacted to ensure that “celebrities” who wished to avoid unwelcome publicity surrounding their criminal court appearances could not rely of their “celebrity” in and of itself to be a basis for extreme hardship.
It is perhaps an ironic unintended consequence that high profile individuals – celebrities if you will – are more likely than not to be and frequently are the subject of comment and discussion on social media. Therefore, if a “celebrity” is able to point to adverse ill-informed and harmful social media commentary, that factor might strengthen a case for claiming extreme hardship that would justify an application for a suppression order.
Thus the celebrity is better placed to seek a non-publication order because, by virtue of his or her celebrity, social media harm is more likely to arise. Celebrity, which should not of itself be a ground for extreme hardship may, by virtue of its social media magnetism, become a basis for extreme hardship.
The Curated Persona
While the law relating to suppression deals with the control of content, the reality is how does one provide effectively a form of anonymity in a paradigmatically different publication environment where the technology itself presents the problem of much greater proportions than was present in the pre-digital paradigm.
Within the context of the so-called “right to be forgotten,” which deals with the removal or curation of information about an individual that may no longer be meaningful or relevant, the answer has been not to remove the content but to de-index or de-reference links to the content that may appear on search engines.[69]
The Google Spain and subsequent right to be forgotten cases deal with the curation of image after publication. However, the unusual qualities of digital technologies can allow for the creation of a body of information that may not be entirely legitimate. This follows from the unusual quality of permissionless innovation which I have discussed elsewhere.[70]
It does not require anyone’s permission to set up an account on a social media platform. A non-descript e-mail address and an anonymous “persona” allows a user access to social media feeds. In so doing the user creates a fictional digital shadow – data that is left behind during internet use.
Again, using the power or permissionless innovation that same user can create a number of alternative personae who could, at the user’s behest, develop comment on social media platforms to a desired level of toxicity that would enhance and exaggerate criticism, trolling or abuse of the person setting up the account in the first place. This is a classic example of the way that the Internet can be used to create “fake news”.
Armed with evidence of this social media commentary – false and manufactured though it may be – a person could plead it as an element of extreme hardship to justify the making of a suppression order where in fact no such justification existed.
This is a negative form of information curation but the result is that not only is a suppression order obtained but the MSM is frustrated in its ability to name the individual in its reporting of the case.
I acknowledge that this is a risky and unlikely scenario but within the context of the digital paradigm easy to effect and certainly not impossible at all. It therefore means that Courts will need to scrutinise evidence of social media activity with a high degree of care.
Conclusion
In this note I have examined the decision of the Court of Appeal in X v R and considered some of the issues that follow from it. The impact of social media as an element of extreme hardship and the Court’s rationale for its consideration and application will be useful in some, but certainly not all cases where name suppression is sought.
There is a wider issue and that is the effectiveness of name suppression orders in the digital paradigm. Arising from this is another question which may be posed – how effective are our legal structures in dealing with information communication in the digital paradigm. But that is a much wider and more complex subject, but it is an aspect of the problem of the control of content with which, as the Court of Appeal noted the Courts have yet to fully grapple.[71]
[1] Oscar Wilde The Picture of Dorian Gray Chapter 1.
[3]Fagan v Serious Fraud Office [2013] NZCA 367. The first consideration is whether or not the s. 200(2) threshold has been crossed. The second is a consideration of whether the discretion should be exercised. Fagan v Serious Fraud Office at [9]. See also Robertson v Police [2015] NZCA 7 at [39] – [41].
[4]R v Liddell [1995] 1 NZLR 538. The principle has been emphasised in a number of subsequent cases. See for example Proctor v R [1997] 1 NZLR 295, Lewis v Wilson and Horton Ltd. [2000] 3 NZLR, Robertson v Police [2015] NZCA 7, Victim x v Television New Zealand Ltd 92003) 20 CRNZ 194.
[5]Bond v R [2015] NZCA 488; Robertson v Police [2015] NZCA 7; Rougeux v Police [2014] NZHC 979; Jung v Police [2014] NZHC 949.
[6] See DP v R [2015] 2 NZLR 306; BL v R [2013] NZHC 2878; R v Wilson [2014] NZHC 32
[8]Hughes v R [2015] NZHC 1501; Byrne v Police [2013] 3416; K v Inland Revenue Dept [2013] NZHC 2426.
[9]Victim X v Television New Zealand Ltd (2003) 20 CRNZ 194; R v Paterson [1992] 1 NZLR 45.
[10]D(CA433/15) v Police [2015] NZCA 541; Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546
[11] See M v Police (1991) 8 CRNZ 14; S(1) and S(2) v Police (1995) 12 CRNZ 714; GAP v Police HC Rotorua CRI-2006-463-68, 23 August 2006; Proctor v R [1997] 1 NZLR 295; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007
[12] Hughes v R [2015] NZHC 1501; NN v Police [2015] NZHC 589; R v W [1998] 1 NZLR 35; Beacon Media Group v Waititi [2014] NZHC 281
[13]Proctor v R [1997] 1 NZLR 295; W v Police [1997] 2 NZLR 17; Nobilo v Police HC Auckland CRI-2007-404-241, 17 August 2007
[27] This definition was adopted by the Court – see FN 35. It should be noted that the definition is noted as a draft partial entry in 2006 and is described as computer slang.
[32] See Lauren Goldman ‘Trending Now: The Use of Social Media Websites in Public Shaming Punishments (2015) 52 American Criminal Law Review 415 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2593673) ; see also Emily Laidlaw “Online Shaming and the Right to Privacy” (2017) Laws https://www.mdpi.com/2075-471X/6/1/3/pdf (Last accessed 6 September 2020) For a full overview of online shaming see Jon Ronson So You’Ve Been Publicly Shamed (Picador, London, 2015)
[38] This was recognized by the Law Commission in its report “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age” (NZ Law Commission, Wellington Report 128 22 March 2013 available at https://www.lawcom.govt.nz/our-projects/regulatory-gaps-and-new-media?id=912 (Last accessed 7 September 2020)
[39] This section draws largely upon my discussion of Social Media in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) Chapter 9. I have taken the opportunity to update and modify it for this article.
[50] For example see E. Agichtein, C. Castillo, D. Donato, A. Gionis & G Mishne, ( February 11,2008). “Finding high-quality content in social media.” Paper presented at the The International Conference on Web Search and Web Data Mining, Palo Alto, CA. http://www.mathcs.emory.edu/~eugene/papers/wsdm2008quality.pdf (last accessed 8 September 2020); Tim. O’Reilly. “What is Web 2.0: Design patterns and business models for the next generation of software.” (2005) O’Reilly Media. http://www.oreilly.com/pub/a/web2/archive/what-is-web-20.html (last accessed 8 September 2020)
[51] d. m. boyd & N. B. Ellison, “Social network sites: Definition, history, and scholarship” (2007). 13 Journal of Computer-Mediated Communication 210 at p. 211.
[55] For example Joshua Rozenberg QC @JoshuaRozenberg; David Allan Green @davidallengreen; Adam Wagner @AdamWagner1; “The Secret Barrister” @BarristerSecret; Graeme Edgeler @GraemeEdgeler
[56] Rosa Lemel “A Framework for Developing a Taxonomy of Social Media” (2014) 6 Business Studies Jnl 67.
[60] Cavazza’s 2012 categories of activity were described primarily as conversations and interactions and were further defined as Buying, Localisation, Publishing, Sharing, Playing and Networking. Central to all these activities were the three social media platforms of Facebook, Twitter and Google + See for the diagram http://www.fredcavazza.net/2012/02/22/social-media-landscape-2012/ (last accessed 8 September 2020).
[63] The term was used by Simon Power in 2010 who asked the Law Commission to look at media regulation describing it as the wild west. (Andrea Vance “Government to review ‘wild west’ internet” Stuff 14 October 2010 http://www.stuff.co.nz/national/4233501/Government-to-review-wild-west-internet . (Last accessed 7 September 2020). The irony behind this comment was that the blogger Cameron Slater had a few days before been convicted of breaching suppression orders in a case that demonstrated that the rule of law DID extend to the Internet.
[64] Danielle K Citron “Civil Rights in Our Information Age” in S Levmore and M C Nussbaum (eds) The Offensive Internet: Speech, Privacy and Reputation (Harvard University Press, Cambridge, 2010).
[69] See for example Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González European Court of Justice 13 May 2014 C-131/12. http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&docid=152065 (last accessed 28 August 2020) and more recently Google LLC v Commission Nationale de l’informatique et des Libertes (CNIL) Case C-507/17, (Eur. Ct. Justice January 10, 2019).
[70] David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) p. 23 and following.
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.
The use of legislative material and, more importantly whether a court will accept it without question, is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.
Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.
Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:
(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—
(a) To be a correct copy of that Act of Parliament, enactment, or legislation; and
(b) To have been so printed or published.
The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.
Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:
(1) Subsection (2) applies to a document that purports—
(a) to have been printed in the Gazette; or
(b) to have been printed or published by authority of the New Zealand Government; or
(c) to have been printed or published by the Government Printer; or
(d) to have been printed or published by order of or under the authority of the House of Representatives.
(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.
The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:
1. It is not for the court to ask whether or not the copy proffered is authoritative.
2. It is for counsel to satisfy himself or herself that what is being proffered is authoritative.
That is all about to change.
Digitised Legislation
The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of theLegislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.
From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..
Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:
every act and legislative instrument (LI) enacted or made since 2008;
every reprint (subsequent version) of those acts and LIs;
the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).
Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.
Pre-Print
In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.
Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.
Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.
For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.
Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.
Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.
Introduction of Print and the Royal Printer.
I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.
Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.
On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with
“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”
Henry VII utilized print for propaganda purposes and was the first English monarch to do so And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre. It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.
The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.
The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government. The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”
The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.
The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.
One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.
The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.
An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.
The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.” There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.
The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material – although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.
Print vs Manuscript
Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.
In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’ In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.
This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.
Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.
The Digital Paradigm
Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.
This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:
“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 see the world through a rear-view mirror. We march backwards into the future.”
The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.
As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium
“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens. But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment. One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future. Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers. Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”
But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.
A Sketch of Issues to be Considered in Legislating for the Digital Paradigm
This is a paper that was presented to the Bullying, Young People and the Law Symposium held under the auspices of the Allanah and Madeline Foundation in Melbourne 18 – 19 July 2013. It was part of a New Zealand contribution to the symposium by Cate Brett of the Law Commission, Martin Cocker of Netsafe and the author. The presentation accompanying this paper may be found here.
Introduction
This paper argues that legislating for behaviour in the digital environment raises unique issues. Whereas legislating for the physical world has certain architectural and physical constraints, such constraints may not be present in the digital space, or may be so paradigmatically different that new considerations need to be employed. This paper considers firstly the qualities and properties of digital technologies that provide challenges for conventional legal processes. It then goes on to consider the New Zealand Law Commission proposals to deal with on-line speech harms and any limitations on the effectiveness of those provisions. It concludes with some thoughts about the application of values developed within one paradigm to those who live in another.
The Digital Paradigm
Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm. 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.[1] 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.
But there is more to this discussion than the content that media convergence enabled by digital technologies provides. Content, as McLuhan said, is “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” [2] It is as important to understand how it is that digital information technologies work. We need to understand the underlying qualities or properties of digital technologies to understand the way in which they drive our information uses, activities and behaviours. Permit me a brief digression while I offer an example.
Information Technology Properties – The Printing Press
In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified six fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts. These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s ninety-seven arguments around Germany in the space of two weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.
And it also happened in my own field the law. Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.
It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.
There were six features or qualities of print that significantly differentiated the new technology from scribal texts.
a) dissemination
b) standardisation
c) reorganization
d) data collection
e) fixity and preservation
f) amplification and reinforcement.
For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. Dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.
Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.
In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[3] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.
Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.
Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[4]
Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.
Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.
Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Print made information more available to ordinary people who could read.
Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.
The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[5]
Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[6]
From all this it would be fair to ask – what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems. And on the surface that’s perfectly correct because what you are talking about there is content. You’re talking about the material that’s delivered rather than looking at the delivery system.
The Medium Is….
Once there is a recognition of the fact that there are properties that underlie an information technology that influence the way in which we address content, and that will govern or moderate information activities, we begin to understand what Marshall McLuhan meant by his aphorism “The Medium is the Message.” 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.
The Properties of Digital Communications Technologies
Many of the properties that Eisenstein identified for print are present in digital technologies. Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.
The properties that I identify are not an exclusive list. The identification of the properties or qualities of digital information technologies is very much a work in progress. But these are the ones that occur to me. Some of them have already been reflected in the discussion that has preceded and I give a very brief description of what each property means. A more detailed analysis has yet to be developed.
Persistence – summed up in the phrase “the document that does not die” – that once information is on the Internet it is more likely than not to remain there.
Continuing change or what you could refer to as the disruptive element – continuing disruptive change is a characteristic of the digital space – the idea of a “breathing space” between times of accelerated change no longer exists. This quality is linked to “permissionless innovation” below.
Delinearisation of Information – in essence, the effect of hypertext links that allow and enable thinking to follow other than a strictly logical sequence, but to branch of into related (sometimes tenuously related) areas of information
Dynamic information – the ability to cut, paste, alter, change and modify text once it has been placed in digital format – exemplified by the ability of on-line newspapers to update stories or significantly alter them as new information comes to hand
Dissociative enablement, – the ability to sit behind a screen and say and do things that one would never contemplate face to face or in “meat space”
Permissionless innovation – you don’t need to ask to put a new tool or protocol on the Internet. Sir Tim Berners-Lee didn’t need anyone’s permission to bolt the World Wide Web onto the Internet; nor did Mark Zuckerberg with Facebook, Sergey Brin and Larry Page with Google, Jeff Bezos with Amazon or Jack Dorsey with Twitter. If you build it they will come sums up this quality.
Availability – information comes to the user. The print paradigm localised book based information in a library or a bookshop. The Internet brings directly information into the home.
Participation – this is a very wide concept which includes information and file sharing as well as the ability to comment on blog sites, post photos on Facebook, engage in Twitter exchanges, participate in IRC chatrooms and break new stories via a blog.
Searchability is related to the next quality but is the first step in the information recovery process – a common feature of the Internet before it went commercial and thereafter has been to make some sense of the vast amount of information that is available. Thus from Gopher to Google the quest for making information available has been a constant, and it enables users to find what they are looking for.
Retrievability – and once the successful search has been carried out, the information is available and can be readily and immediately obtained – associated with information availability above.
This means that the information expectations of Digital Natives have been shaped and moulded by these qualities. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (Digital Immigrants) or those of my generation (Digital Aliens). Thus any solution to on-line problems must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours. The solution must also recognise another McLuhan aphorism – we shape our tools and thereafter our tools shape us.[7]
This of course gives rise to the question of whether or not the internet changes us forever. Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli. The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[8] His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.
The neuroplasticity argument is picked up by Susan Greenfield[9] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it. Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour. We want new interactive experiences and we want them now.
This view is disputed by Aleks Krotoski[10] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again. According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting. Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.
In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[11] to advance their propositions. Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between. The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.
My argument is that the impact of the internet lies in 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.
This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important. Our decision making is based upon information. Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it. The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.
And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm. It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[12]
Looking at Solutions
Thus if we seek a solution to some of the problems that involve Internet-based behaviour we must recognise these qualities and impacts of the digital communications technologies that underlie these behaviours. For example any solution must recognise:
The time factor – in “internet time” information moves faster than it does in the real world
Information is dynamic and spreads “virally”
“Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral.
Restrictions on a free and open internet must be minimal.
The New Zealand Solution
The New Zealand solution set out in the Digital Speech Harms paper from the Law Commission takes a two-pronged approach. One involves the creation of a new offence. The other involves a fast-track solution of a civil nature involving the creation of a Communications Tribunal.
A New Offence
The Law Commission considers that causing harm by the use of a communications device should be criminalised. The first thing that must be recognised is that the use of communications device is not criminalised, nor may this be seen as an attempt to regulate the Internet. What is being addressed is a behaviour involving the use of a communications device that causes harm to another.
The proposed language of the offence is as follows:
Causing harm by means of communication device
(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of any communication device a message or other matter that is—
(a) grossly offensive; or
(b) of an indecent, obscene, or menacing character; or
(c) knowingly false.
(2) The prosecution must establish that—
(a) person A either—
(i) intended to cause person B substantial emotional distress; or
(ii) knew that the message or other matter would cause person B substantial emotional distress; and
(b) the message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and
(c) person B in fact saw the message or other matter in any electronic media.
(3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.
(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including—
(a) the extremity of the language used:
(b) the age and characteristics of the victim:
(c) whether the message or other matter was anonymous:
(d) whether the message or other matter was repeated:
(e) the extent of circulation of the message or other matter:
(f) whether the message or other matter is true or false:
(g) the context in which the message or other matter appeared.
(5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.
(6) In this section, communication device means a device that enables any message or other matter to be communicated electronically.
The message set out in subsection (1) has to pass a very high threshold. Similarly the intention test in subsection (2) is high and the criteria in subparagraphs (a) – (c) are conjunctive. Each one must be proven to the criminal standard. Subsection (4) sets out matters that a Court may take into account, but these criteria are not exclusive.
One matter that must be taken into account is that the section would have to be interpreted and applied in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA). Now the section as it stands criminalises a certain quality of speech, thus engaging a consideration of the freedom of expression right guaranteed by s. 14 of NZBORA. That must take into account issues of a justified limitation upon the freedom of expression right. In my view the application of NZBORA would necessarily result in a very cautious approach by a Court. The evidence of the offending would have to be clear and unequivocal and could not really apply to a trivial matter.
A problem that arises with prosecutions for such an offence is the nature of the legal process which rarely matches “Internet time” and the fact that the section does not allow for the removal of any offending material, thus allowing the persistence of the information. The section addresses the behaviour but the message may still remain, preserved on the Internet.
The Communications Tribunal
The proposal for a Communications Tribunal, and for the powers and remedies that Tribunal may bring to play could well address some of the qualities of the digital environment, and possibly more effectively than a criminal prosecution, which, in my view, would be reserved only for the most extreme cases.
The Communications Tribunal
a) would have a limited jurisdiction
b) could provide limited and specific remedies
c) would deal with content and not criminality
d) would operate “on the papers”
e) would be a remedy of last resort after a filtering process has been carried out by the Approved Agency
Communications Principles
On the face of it, the Communications Tribunal has some significant powers which, at first glimpse, interfere dramatically with freedom of expression. The approach by the Tribunal must be within the context of Communications Principles proposed by the Law Commission. These are:
Principle 1
A communication should not disclose sensitive personal facts about an individual.
Principle 2
A communication should not be threatening, intimidating, or menacing.
Principle 3
A communication should not be grossly offensive to a reasonable person in the complainant’s position.
Principle 4
A communication should not be indecent or obscene.
Principle 5
A communication should not be part of a pattern of conduct that constitutes harassment.
Principle 6
A communication should not make a false allegation.
Principle 7
A communication should not contain a matter that is published in breach of confidence.
Principle 8
A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm
Principle 9
A communication should not incite or encourage another person to commit suicide.
Principle 10
A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.
Matters that the Tribunal Would Have to Consider
In considering an application for relief the Tribunal would have to take into account the following:
(a) the content of the communication, its offensive nature, and the level of harm caused by it:
(b) the purpose of the communicator in communicating it:
(c) the occasion, context, and subject-matter of the communication:
(d) the extent to which the communication has spread beyond the original communicator and recipient:
(e) the age and vulnerability of the complainant:
(f) the truth or falsity of the statement:
(g) the extent to which the communication is of public interest:
(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:
(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.
The Law Commission also emphasised that in exercising its functions, the Tribunal should have regard to the important of freedom of expression. Thus an analysis pursuant to the provisions of NZBORA would have to be undertaken.
The Orders that the Tribunal Might Make
(a) an order requiring that material specified in the order be taken down from any electronic media:
(b) an order to cease publishing the same, or substantially similar, communications in the future:
(c) an order not to encourage any other person to engage in similar communications with the complainant:
(d) a declaration that a communication breaches a communication principle:
(e) an order requiring that a factually incorrect statement in a communication be corrected:
(f) an order that the complainant be given a right of reply:
(g) an order to apologise to the complainant:
(h) an order requiring that the author of a particular communication be identified.
These orders or parts of them may apply to the following:
(a) the defendant:
(b) an internet service provider:
(c) a website host:
(d) any other person, if the Tribunal considers that the defendant is encouraging, or has encouraged, the other person to engage in offensive communication towards the complainant.
Transparency would be ensured in that the Tribunal must publish its decisions and the reasons for them. This is necessary because if there are to be interferences with freedom of expression the reasons for such interference and the extent thereof should be published and made known to counter any suggestion of secret interference with freedom of speech.
As proposed the Communications Tribunal would have the following advantages in dealing with on-line speech harms and at the same time recognise some of the disruptive qualities of the digital paradigm:
a) it would deal only with the most serious types of on-line speech harm, in that the Approved Agency would filter and deal with the majority of complaints.
b) It would provide a relatively swift response which would accord with “internet time” and at least attempt to mitigate some of the damage that could be done if the material in question was or going or was likely to go viral. Having said that, the persistence quality of information on the Internet may well provide an element of frustration, but responding to the source of the speech harm is a significant first step.
c) it would have an “on the papers” hearing which would obviate the need for conducting a full hearing with parties present, and which would have to fit in around other Court work. This said, with modern technology such as Skype it is possible that a “distributed hearing” where the participants would be other than in the Court building may be possible. New Zealand has specific legislation that allows this.[13]
d) it could provide a remedy by way of a take-down order but it should be noted that power would have to be exercised having regard to the freedom of expression provisions in NZBORA, and the correct analysis based on a proportional approach would have to be undertaken.
e) an order of the Tribunal would constitute a Court order which would receive recognition from providers such as Google or Facebook and thereby the removal of offending content could be expedited.
The Present State of the Play
The report has been received by the Minister.
She has indicated that the recommendation for a Communications Tribunal will not be adopted.
The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court
Some of the issues that may arise and should be addressed as the policy develops into a Bill might include
a) lack of specialist expertise in the field of digital communications law on the Bench and the need for specialised training
b) potential procedural delays if Communications complaints are subsumed as part of the normal Court process – a “fast track” may need to be considered
c) variation or possible lack of consistency in the application of principles and the types of orders that may be made
d) whether or not a process may be developed which will take into account the qualities and realities of the digital paradigm and which recognise that the nature of Internet based communication is fundamentally different and potentially far more damaging than conventional bullying “speech”.
One thing is clear and it is that the activities of the Court in this area will be carefully scrutinised by lawyers, free speech advocates, Internet freedom advocates and the community in general.
A Cautionary Conclusion
There are some who follow the view of Edmund Burke – that each generation has a duty to succeeding generations. Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.
The problem is this – in a changing communications paradigm should digital immigrants tell digital natives how to live their lives in the digital environment?
The IT Countrey Justice
July 2013
[1] 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.
[2] Marshall McLuhan Understanding Media: The Extensions of ManCritical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)
[3]The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.
[4] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.
[5] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.
[6] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.
[7] Marshall McLuhan Understanding Media: The Extensions of Man above n. 2.
[9] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper” Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)
[10]Untangling the Web: What the Internet is Doing to You (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.
[11] Sometimes referred to as “The Frankenstein Complex”
[12] See above for some of the qualities of digital information technologies.
In March the Law Commission released its long awaited report “News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age.” The Reports addresses three major issues. The first is to develop and recommend a new regulatory framework for news media that recognises the multitude of disseminatory options available in the digital paradigm. The second is to consider what it refers to as harmful digital communications. In this section, which was the subject of a separate Ministerial Briefing Paper released in August 2012 the Law Commission considered the adequacy of existing sanctions and remedies for what may be called on-line speech harms. The third issue deals with entertainment content. The proposed “dismantling” of the separate regulatory structures for news dissemination leaves “entertainment content”, currently covered by the Broadcasting Standards Authority, out on something of a limb and although there are no set recommendations in this area, the Law Commission has suugested some possible lines of future enquiry
How this came about
The Law Commission commenced investigations into regulatory structures for the news media and other aspects of communicative technologies following a reference by the then Minister of Justice Simon Power who expressed his concerns in this way:
“It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.”
This followed the prosecution and conviction of Cameron Slater for breaching name suppression orders on his “blog” Whale Oil Beef Hooked.”
The terms of reference for the Law Commission were:
How to define “news media” for the purposes of the law;
Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/ or the Press Council should be extended to cover currently unregulated news media and, if so, what legislative changes would be required to achieve this end; and
Whether the existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and if not whether alternative remedies may be available.
In December 2011 The Law Commission presented an Issues Paper for comment. After a wide consultation process which concluded in March 2012 work commenced on the final report. This work was interrupted by concerns about bullying and cyberbullying. The Minister of Justice, Judith Collins, asked the Law Commission to accelerate its report on this part of the terms of reference. A Cabinet Paper entitled “Harmful Digital Communications: The adequacy of the current sanctions and remedies” was released in August 2012. It appears as an appendix to the “New Media” Report.
The use of multiple technologies by News Media
The Law Commission focussed adopting a regulatory model that would address the way in which the News Media were adapting to and using new digital technologies. No longer were the points of difference between print, radio and television media present, although these media had different regulatory structures and standards. As the spread of the Internet became more pervasive so news media organisations adapted to it, presenting users with a rich mixture of content – text, audio-visual, multimedia – along with some of the other qualities that Internet technologies enabled by way of cross-linking and presentation that could not be achieved in the static disseminatory “one to many” model of the pre-digital environment. In its Issues Paper the Law Commission observed:
Where once newspapers and television were able to marshal their reporting resources around set broadcasting and printing schedules, now the internet enables – and requires – a constant supply of breaking and updated news. Newspaper publishers, with their long lead times between deadlines and distribution had, in the past, specialised in generating original news and analysis: now they must also compete head to head with broadcasters, including social media, in the live or spot news market.
In addition broadcast media was adapting from a strict time-based programming regime to a demand driven one, making content available for view at a time that it suited the viewer or the listener even although the availability of that content may be limited. In addition broadcast news utilised the internet to provide additional “in-depth” or “raw” material as an adjunct to a “formal” news broadcast. In its Issues Paper the Law Commission examined the way in which print, TV and radio were using the web as well as considering what it described as “Web only “News” Media. Examples were given of generalist news sitessuch as Scoop.co.nz, interent.co.nz and NewsRoom.co.nz. On-line aggregators such as those established by search engines such as Yahoo and Google feature as a new phenomenon in that they don’t produce any original content, relying instead on filtering, organising, repackaging and linking to content produced by others,including traditional media organisations.
Apart from what may be considered mainstream news media and various sites associated with it such as public relations and advocacy sites is the development of the Blogosphere and the rise of the citizen journalist, enabled by the democratising qualities of Web 2.0. Blogs vary greatly in terms of professionalism, readershipand influence. At one end of the spectrum are hobbyists who write diary-like entries primarily for the consumption of colleagues, friends or family. At the other, are the bloggers with specialist subject knowledge in areas such as business, politics, law, the media, science and the arts.
The Law Commission observes:
Bloggers typically draw on material from a wide variety of media, integrating the original content on which they are commenting into the body of their work by cutting and pasting excerpts from mainstream media websites (text and video) and linking to other websites or bloggers. It is also common for bloggers to post documents and or links to source material (including, for example, official reports or research) referred to in their blogs.
Although primarily a forum for opinion, bloggers also break news, sometimes strategically. For example, …..blogger Cameron Slater broke a number of news stories which were subsequently carried in the mainstream media.Bloggers, including Cameron Slater, also frequently critique mainstream media and in particular point out when they have been “scooped” by a blogger.
Finally the Law Commission observed that the development of social media as a news disseminating medium, and especially Facebook and Twitter are demonstrative of the way in which new media impacts upon established news media norms. It cannot be overlooked that many established mainstream media sites enable the posting of a news story reference to an individual’s twitter feed with the opportunity for a (brief) comment.
The intersection of the various technologies mean that it is difficult to tell which news media organisation is subject to what regulatory body. Television websites contain text making them similar to but nor subject to the jurisdiction of the Press Council – a voluntary body. Yet the text content is not subject to the jurisdiction of the Broadcasting Standards Authority. Similarly the NZ Herald may include video content from its web-site that would look like a form of broadcast, yet this form of content is not covered by the Press Council.
The problem that has presented itself, especially from the perception of a regulator, is the way that Internet technologies allow the various forms of news dissemination to converge or merge together.
The Theory of Convergence
Media Convergence is not new. In 2000 Time Warner and AOL merged together. It was trumpeted as thefirst great media convergence, where a content creation company got together with an Internet service provider thus providing a further means of content delivery and the homogenising of the two concepts where content and delivery into a seamless organisation.
The concept of convergence, especially of media convergence, is still debatable. For some it is the blending of multiple media forms into one platform for purposes of delivering a dynamic experience. For others it is themerging of mass communication outlets – print, television, radio, the Internet along with portable and interactive technologies through various digital media platforms. It allows mass media professionals to tell stories and present information and entertainment using a variety of media and therefore Converged communication provides multiple tools for storytelling, allowing consumers to select level of interactivity while self-directing content delivery.
Most theorists agree that in general terms convergence means ‘coming together of two or more things’. However a variety of different arguments have been put forward in an attempt to define what exactly is coming together. It may be the coming together of different equipment and tools for producing and distributing news. Alternatively, it could involve the flow of content across multiple media platforms, suggesting that media audiences nowadays play a crucial role in creating and distributing content, and convergence therefore has to be examined in terms of social, as well as technological changes within the society.
Some commentators consider that media convergence should be viewed as cooperation and collaboration between previously unconnected media forms and platforms. Another view of convergence is the blending of the media, telecommunications and computer industries or, in other words, as the process of blurring the boundaries between different media platforms and uniting them into one digital form.
In some respects this last definition sums up the problem that the Law Commission had. Technology had disrupted the old certainties and had presented the world with a new media distribution model. Providing a regulatory model would have to fit with the technology. There was no way that the new media landscape was going to be reorganised. Whatever changes were going to be made would be driven by technological reality.
Proposals for a unified news media regulatory structure.
There are some fundamental propositions behind the Law Commission’s proposed regulatory scheme.
a) That membership of a regulator should be voluntary
b) That the regulatory body be fully independent of and separate from government and the political process
c) That incentives would encourage membership of the regulatory body
Policy Objectives
The policy objectives of the Law Commissions recommended reforms are to:
a) To recognise an protect the special status of the news media and to ensure that all entities carrying out the legitimate functions of the 4th estate – irrespective of size or commercial status – are able to access the legal privileges and exemptions available to these publishers;
b) To ensure that to those who are accorded news media special legal status are held accountable for exercising their powers ethically and responsibility;
c) To provide citizens with an effective and meaningful means of redress when standards are breached; and
d) To signal to the public which publishers they can rely upon as sources of news and information.
The Report – A Converged Standards Body
The Law Commission Report contains a total of 34 separate recommendations and are relatively detailed. The first set of recommendations deal with a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA. This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.
The NMSA – Eligibility for Membership
Eligibility for membership of the NMSA is based upon the broad definition of a news media organisation. The following criteria are proposed:
a) Significant element of their publishing activity involves the generation and/or aggregation of news, information and opinion of current value;
b) They disseminate this information to a public audience; and
c) Publication is regular and not occasional. However it excludes two entities from that definition namely online content infrastructure platforms and the office of the clerk of House of Representatives.
This definition ties in with the definition of news media which contains four elements:
a) A significant proportion of their publishing activities must involve the generation and/or aggregation of news information and opinion of current value;
b) They disseminate this information to a public audience;
c) Publication must be regular;
d) The publisher must be accountable to a code of ethics and a complaints process.
The Nature of Membership
The membership of NMSA should be voluntary and not compulsory. This is an underlying theme throughout the entire report. In this respect the Law Commission proposal differs significantly from those of Lord Justice Leveson and which are currently under consideration in England and those of the Honourable R Finkelstein QC in Australia, the legislative enactment of which has run into considerable difficulty in the Australian Federal Parliament and has been abandoned for the time being.
Once the NMSA has determined that a person is eligible for membership, membership is based upon contract with the NMSA which includes a complaints process by which members will be bound and the powers of the NMSA with members being bound to comply with the exercise of such powers. In addition an annual financial contribution is proposed together with the obligation upon members to publicise the NMSAs code of practice or statement of principles, their complaints process and their own complaints handling process.
The NMSA – Advantages of Membership
accountability to an external standards body and membership of it would bring advantages which would be of value to those willing to be subject to its jurisdiction. Those advantages would include:
a) Legal exemptions and privileges – only those publishers belonging to the standards body would be eligible for the legal privileges of exemptions currently available to the news media;
b) Complaints resolution and mediation – the standards body would provide members with a quick and effective mechanism for dealing with complaints which might otherwise end up in costly court action – this could be of particular benefit in defamation and privacy cases;
c) Public funding only publishers who belong to the standards body would be eligible for funding support from New Zealand on air for the production of news and current affairs and other factual programming – an advantage accruing to primarily radio and television media;
d) Brand advantage in that membership of the standards body would provide a form of quality assurance and reputational advantage and it is anticipated by the Law Commission that this would become a bench mark to determine who is to access other non-legal media privileges such as access and entry to the parliamentary press gallery, admission to press conferences, access to embargoed releases and the like.
NMSA- Statutory Recognition
Although the NMSA would not be established by a statute it would therefore be indirectly recognised in statutory provisions creating the various news media privileges. The Law Commission emphasises that the body would be independent of both state and the media industry in its adjudication and governance structures and there should be no Government or industry involvement in appointments to the new body.
The NMSA – Some Thoughts
The constitution and structure of the NMSA is interesting because it is not a statutory body and therefore not under any parliamentary supervision. This is entirely consistent with the importance with maintaining the independence of the 4th estate together with freedom on the press and freedom of expression rights.
There must be genuine independence of both Government and the news media industry both in relation to the adjudication of complainants and in relation to its governance and management. Membership, it is suggested, should include a chair person who should be a retired Judge or other respected experienced and well known public figure and appointment would be by the Chief Ombudsmen, thus maintaining a separation from the political process.
The makeup of complaints panel members should be representatives of the public who are not from the media industry but with a minority having industry experience represented of both proprietors and journalists but not including current serving editors. The need for expertise in new media and digital communications technology is recognised by the fact that one panel member at least should have that quality.
I wonder if that is enough. The reality is that news media are now technology driven. The environment of the digital paradigm is completely different from that which went before to the point of being revolutionary. The technology drives behaviour and as the technology changes, so does behaviour arising from its use. Because we are dealing with communication technologies our use of and responses to the information communicated change, not only in terms of processing but in terms of expectations of information and of those who disseminate and deliver information. What a complaints body will be facing are not merely questions of news media standards against a background of traditional media expectations but an evolving and developing news media as continuing disruptive change – a characteristic of digital communication technologies – changes the media landscape. Although ostensibly the focus of a complaints system will be upon content, underlying the content layer will be ever-evolving communications technologies. The certainty that comes with stability will not longer be present and reliance upon presumptions based upon a static communications system may no longer pertain.
The Code of Practice
One of the important initial functions of the NMSA would be to formulate a code of practice as well as adjudicate complaints about breaches of the code as well as monitoring and reporting on trends and media practice and audience satisfaction and the mediation of disputes about matters which might not otherwise proceed to court. Importantly the constitution of the NMSA should expressly recognise that the NMSA act in accordance with the guarantee of the freedom of expression in the New Zealand Bill of Rights Act 1990.
The Code of Practice (which is referred to as a code of ethics in s 198 of the Criminal Procedure Act 2011) would set out the standards against which the conduct of the news media is to be judged and which would form the basis of complaints from the public:
a) The content of the code should be formulated by NMSA with no government influence on its content. The Law Commission recommendation is that the code might be formulated by an NMSA committee.
b) There should be consultation with the industry and with the public in the course of the formulation of the code which should capture, to the fullest extent possible, the traditional tenants of good journalism (including accuracy, correction of error, separation of fact and opinion, fairness to participants, good taste and decency, compliance with the law, the protection of privacy in the interest of children, and principles about news gathering practices) in a way which meets the demands of modern New Zealand society.
The code should also expressly recognise the guarantee of freedom of expression in the New Zealand Bill of Rights Act as a guiding principle and strive to maintain a balance between this interest and other important interests such as privacy while making clear that the codes principles may be overridden by the public interest in publication. There should also be guidance on what public interest actually means. Sub codes would provide for differing public expectations of different publishing mediums and the code should be available on a website for the NMSA which should be reviewed on a regular basis.
Powers of the NMSA
The scope of the jurisdiction of the NMSA would be to enforce standards across all types of news publishers, irrespective of the format or distribution channel. It would adjudicate complaints relating to news, current affairs, news commentary and contents such as documentaries and factual programming which purports to provide the public with a factual account of real events involving real people. Membership would be voluntary but it is considered that the privileges and benefits that would attach to membership would counter balance any initial reluctance to become involved with the NMSA.
However the Law Commission recommends that the new body would have a wider range of powers than presently exist in the press council, the Broadcasting Standards Authority or the Advertising Standards Authority. These powers would include:
a) A requirement – as at present – to publish an adverse decision in the medium concerned, the regulator having power to direct the prominence and positioning of the publication;
b) A requirement to take down specified material from the website;
c) A requirement that incorrect material be corrected;
d) A requirement that a right of reply be granted to a person;
e) A requirement to publish an apology and
f) A censure. No monetary sanctions by way of fines or compensation are proposed.
NMSA Powers and Technological Reality
Perhaps the most striking new power is the requirement to take down specified material from the website. This would not only apply to current mainstream media who may sign up to the NMSA but would also include citizen journalists and new media entities who have also joined and are subject to the NMSA. There are two possible concerns to the concept of take down. One is that it has a certain Orwellian ring to it in that the material exists on the internet or the website only for as long as it is available to internauts. Once it is taken down it is as if it had never existed and perhaps this represents a certain ephemeral aspect of information on the internet and the well known difficulty of locating information where there has been the phenomenon of “link rot” or for whatever reason the website host no longer makes the material available. In a situation involving an NMSA directive the website host would have no choice.
The second difficulty lies in the contradictory adage of information on the internet being “the document that does not die”. Once information is available on the internet it has a tendency to replicate, become part of a Google cache or be available if not in whole than in part on a Google search. In addition library archives and other forms of preservation of internet based material such as the internet archive mean that the information may still be available although not directly at the web address at which it was first published. A dedicated researcher would probably be able to find information even although it had been the subject of take down directive from the NMSA.
A possible third scenario presents where, a disgruntled citizen journalist who has been directed to take down material from a website could leave a page at the web address containing information to the effect that the content that had previously been present at that address had been the subject of a takedown directive from the NMSA and could well contain complaints about censorship or some commentary on the wisdom or otherwise of the decision. Although this could attract further attention from the NMSA it would be consistent with some behaviours present in citizen journalists blogs and websites.
Managing the Transition to the New Model
As part of the transition process it is proposed that an establishment working party should be set up, chaired by an eminent independent person nominated by the Chief Ombudsmen. The balance of the working party should be appointed by the chair after consultation with the news media industry and representatives of that industry should be in a minority. The working party should not exceed 7 members. The proposal is that the working party should consult widely including with the BSA, the Press Council and OMSA and the working party effectively should attend to an initial implementation of the recommendations including:
a) Drawing up a constitution of the NMSA both for management and adjudication functions;
b) Laying down the manner of in criteria for the appointment of panel members of the NMSA and ensuring that the Chief Ombudsmen has an involvement in that process;
c) Appointing the foundation panel members of the NMSA including foundation members of the complaints panel and appeals panel;
d) Drawing up a mechanism for industry funding of the NMSA;
e) Drawing up model forms of contract to be entered into between the NMSA and members of the news media electing to belong to it; and
f) Advising if necessary on the initial funding contract with the Government to support the NMSAs oversight and monitoring functions.
How this is an example of technology driven rule making.
Introductory
The functional construction of the Internet involves six layers which offer regulatory activity of one form or another.
The Content Layer—the symbols and images that are communicated.
The Application Layer—the programs that use the Internet, e.g. the Web.
The Transport Layer—TCP, which breaks the data into packets.
The Internet Protocol Layer—IP, handles the flow of data over the network.
The Link Layer—the interface between users’ computers and the physical layer.
The Physical Layer—the copper wire, optical cable, wireless devices, routers, etc.
The first thing that should be noted is that what is proposed by the Law Commission is a form of regulation of the content layer of the news media. It is always this layer that attracts the most attention and is, and throughout history has been, the first target of regulation in whatever form it takes – whether it be to enhance the credibility of news media (as this would seem to be) or to engage in censorship.
In some respects the Law Commission embraces both but not in equal measure. Primarily the approach is to ensure that the 4th Estate acts in a responsible manner, and that the doors of 4th Estate advantages and privileges are open to “new media” – the citizen journalists whilst at the same time recognising that membership of the 4th Estate carries with it certain responsibilities – hence the NMSA. But on the other hand the censorship model is present in the suggestion that “take down” orders may be made in respect of on-line content.
In addition to the content layer of the Internet there are a number of other deeper issues associated with technological change that have brought matters to a head. These may be described as the qualities or “properties” that enable or impact upon human behaviour – generally in ways that we don’t immediately perceive. I have referred to these qualities in other posts and repeat them here for completeness whilst acknowledging that the development and identification of the qualities of new communications technologies is a work in progress. So far I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are
Persistence,
Continuing change or what you could refer to as the disruptive element,
Dynamic information
Dissociative enablement,
Permissionless innovation,
Availability,
Participation
Searchability
Retrievability.
The effect of this is that our consciousness of the changes that might have taken place in our behaviour or, in the case of information technologies, the way that we communicate, process and deal with information is delayed until the changes have become virtually irrevocable. These changes can impact at the individual level or, collectively, have an impact upon societal institutions. For example, the use of e-mail, Facebook or Skype as a means of communicating with family and friends has the following consequences that immediately spring to mind:
a) the decline of “hard copy” letter writing
b) the rise of informality in written communication
c) the questionable future of a “written documentary record” as a primary source for historians
d) the decline in physical mail items with impacts upon postal services profitability and viability resulting in reduced delivery days and increased cost driven inefficiencies in hard copy mail delivery “services”.
I acknowledge that this is just a brief sketch to illustrate a single issue, and should not be considered a developed argument.
A “Qualities-Based” Approach to Rule-Making
Thus the starting point of this discussion is based uopon the premise that new communications technologies contain certain properties which have an impact upon the way in which we react and assess the information that is communicated. Although information may of itself be static, the way in which it may be presented by a particular communications technology affects the way in which we deal with and react to it and may colour our expectations of information
New information technology paradigms subtly influence our perceptions of information, our intellectual approach to information and our use of information. The properties apparent in one paradigm may not be present in another.
A problem arises where we have become inured to the properties of one paradigm and consider that they apply mutatis mutandis to another without recognising that paradigmatic change introduces concepts that are so utterly different from a former paradigm that our responses, reactions to and assumptions about information are invalid.
This is particularly so when it comes to consider regulatory structures and policies which may be applicable to developments that occurred under one paradigm and that may not comfortably translate to a new one
It is suggested that it is necessary to examine the qualities of different information technologies to ascertain whether or not continuing assumptions about the nature of information and its communication are still valid, or whether they must be revisited in the light of the new technology which may have significantly different properties from the old.
It is my contention that when we examine the properties of information communication technologies, such as the printing press, alongside new digital technologies including computer-based and internet accessible information, it becomes necessary to re-evaluate our responses to and our assumptions of information that is available within the digital paradigm.
We should be careful to ensure that our policies are not based on assumptions deriving from the “old technology”. A different set of assumptions based upon information derived from the digital paradigm must be developed that recognise and reflect its properties. A tension necessarily arises between our print paradigm expectations and those that are apparent within the digital paradigm. Yet there remains a path where the core values that have developed within the print paradigm may still be reconciled with information derived from the digital paradigm.
Marshall McLuhan made (among many) two observations pertinent to this discussion. When he said “the medium is the message” – a somewhat obscure remark – he was emphasising that when we deal with communications technologies the content that is delivered is secondary and the way in which the message is delivered is important. He emphasised this rather crudely when he said that the “content” of a medium was a juicy piece of meat carried by the burglar to distract the watchdog of the mind.
This means that people tend to focus on the obvious, which is the content, but in the process, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time.
As society’s values, norms and ways of doing things change because of the technology, it is then we realize the social implications of the medium. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions of which we may be unaware. This is reflected in the second comment that McLuhan made – We shape our tools and thereafter our tools shape us. In this case the tools are new communications technologies and they have been and still are changing our behaviours and our expectations of what technology can do – especially in the communication of information.
What the technology has done is that it has dramatically changed many of our previously conceived ideas and understandings of information. Our responses illustrate this. The Minister’s remarks when he made his reference to the Commission provide an example. Putting to one side the emotive references to “the Wild West” which are anachronistic and inaccurate, the subtext of the Minister’s comments amount to the following:
a) People are doing things with information and information systems that they were unable to do before (or could do, but with difficulty)
b) Some of these actions challenge the rules and the framework of rules that have been set up to regulate information delivery systems
c) There must be some way by which the actions which challenge the rules are brought within the existing rule structure or framework
Another way of interpreting proposition (c) is to ask how we can put the future within the constraints of the past. In many respects we find that the behaviour of individuals can be addressed within existing rules. The cases of R v Garrett and Police v Slater are examples.
This position becomes more complex when the focus shifts to what may be termed “institutions” such as the news media. The history of press, radio and television are continuing stories of State involvement with the media to one extent or another, be it at the level of content licensing following the statute of 1662 (print), state ownership and control of radio broadcasting as was the situation up until the early 1970’s or television channel licensing as is the case today. In addition there are the regulatory structures of the Press Council and the Broadcasting Standards Authority.
What must be remembered is that as these new technologies came on stream the State was very swift to attempt to assert some sort of control over their operation and output. In New Zealand it would be cynical to suggest that there is a political motive for this, although the curious situation where the Labour Party, which then favoured state control, supported the passage of the News Media Ownership Bill which would have released the stranglehold of newspaper ownership then present in New Zealand and which Labour perceived was right-wing, gives some support to the suggestion that within the political sub-conscious there is a media control agenda.
Of course, various levels and intensity of control are possible with monolithic, centralised and capital hungry organisations. In the pre-digital paradigm the costs of setting up a newspaper, radio or TV channel were and still are very high, even without regulatory approval.
The digital paradigm challenges that model. It enables everyone to become a publisher. It is not unexpected that news media should rise to the challenge and we find ourselves in a situation where there is a convergence between broadcast and print media in print media websites, and the use by broadcast media of the various communications protocols enabled by the Internet to provide live streaming of content and content on-demand.
But we must remember that the regulatory structures that have been put in place were all pre-digital and with the monolithic model in mind. And furthermore we must remember that the digital revolution (so called) is in fact evolutionary in effect. It may well be that the on-line convergence models utilised by Mainstream Media (MSM) will not be around in 10 years time – and one need only look at the development of Social Media to understand the difference that internet may prompt in terms of behavioural norms and values. It may well be, for example, that MSM will fulfil a different news provision facility, focussing entirely upon factual information and stepping away from opinion and analysis, leaving that present function of MSM to citizen journalists – some of whom may be endorsed or who may write op-ed pieces on a free lance basis although it is acknowledged that this happens now. A possible future is the fragmentation of MSM into a defined and specialist role – again enabled by the new technologies and possible future protocols that may ride on the backbone of the Internet – although I imagine that it would require a culture shift for some journals to break free of a “tabloid” model and return to a more “intelligent” one.
The question that must be asked over and above the issue of the nature of content regulation – and it must be acknowledged that the Law Commission proposals operate at that level – is whether the model of content regulation is appropriate for the new technology. I consider this to be a valid issue. The model of control of “acceptable” content be it heresy, treason or pornography has not changed significantly since the Constitutions of Oxford 1407 which were designed to address the Lollard heresy. The model is labour intensive and has struggled to deal with increasing volumes of content made possible by technology. It was originally designed to censor manuscript materials. It struggled with the volume generated by print. Perhaps societal changes and attitudes about indecent content have liberalised to the extent that a very limited definition of “objectionable” reduces the volume, but, having said that every film needs to be viewed and classified and the censors struggle under the volume of content that is contained in video games.
There are associated issues with the question. If we wish to maintain a content control model or a model that responds to content issues do we wish to maintain a variation of the existing model or should we consider adopting a new one. The current proposals suggest the former and, with the greatest respect, this seems to be a rear-view mirror approach to an upcoming and continuing problem. Rather than make behaviours driven by a new technology an uncomfortable fit with a model from a different paradigm, might it not be preferable to address the new paradigm and design a model that recognises it. This, of course, assumes that there is a justification for regulation in the first place. In this respect one looks at existing law and remedies. It is acknowledged that current legal structures and processes make access to legal remedies and procedures difficult for the majority of the citizenry – and are certainly not assisted by recent restrictions and cutbacks in legal aid. If the new paradigm continues or increases the occurrence of litigable behaviour then a new model needs to be developed to meet that. In this respect the suggestion of a new Tribunal answers such a need.
This then leaves the issue of the special treatment accorded to MSM and I wonder if the time has come, with the increased opportunities for “citizen journalism” to dispense with special treatment for MSM and make what have been privileges for MSM open to all. I immediately acknowledge that this may sound somewhat “Jeffersonian”, overly democratic or introducing an element of chaos into an otherwise reasonably ordered and moderately predictable environment.
On the other hand in a world where everyone may be a publisher, a possible future is that MSM, at least as we recognise it now, may wither and either pass into history like the scribes in the monasteries or transform into some other form of information dissemination model.
Whilst acknowledging that the suggestion of making MSM privileges open to all is radical it must be remembered that the new paradigm with the various protocols that underlie Twitter, Instant Messaging, SMS and the various other models that will appear (and further change WILL come) radically alter our attitudes, approach to and expectations of information.
Edward Kennedy adapted the words of the Serpent in Shaw’s Back to Methuselah as an epitaph for his brother Robert F Kennedy “Some men see things as they are and say why? I dream things that never were and say why not?” In today’s age of democratisation, continued questioning and challenging of established systems and within an environment of dramatic innovation, New Media adherents may well ask “Why not?” For MSM to have any credibility and respect they will need to have an answer. To say “it has always been this way” simply does not cut it in the digital paradigm because the opportunities that the paradigm offers means that it doesn’t have to be “this way”.
The Technological Drivers
The enabling powers of the new information technologies have resulted in two major shifts. The first is the democratisation of content production and the rise of the citizen journalist. New technologies remove the need for physical resources such as volumes of paper upon which to print the message. Disseminative qualities remove the need for a physical distribution network. Internet communicative technologies enable “citizen journalists” to publicise their work. Blog sites enable a form of simple publication with appropriate indexing systems. Search engines assist a readership to find the content sought. Thus, instead of the “one to many” static model of MSM the “citizen journalist” has available a “two-way flow” of content dissemination and notification.
The initial concern of Minister Power was to apply regulatory structures to bloggers. The Law Commission response was more measured, suggesting an opt-in model for “citizen journalists” giving them an opportunity to avail themselves of current advantages enjoyed by the news media. But there can be no doubt that the new technologies available have been the enablers of “citizen journalists” and the presence of “citizen journalists” and the content that they impart has raised the issue of the necessity for and scope of any regulatory structure to govern their activity.
The second enabling qualities of new information technologies has resulted in content convergence which has made the old regulatory structures inoperable or redundant. The Law Commission has proceeded from a starting point not of whether or not in the digital paradigm we need news media regulation. That appears to be a given although the raison d’etre has been repackaged as the incentivised model suggested. In a sense new technologies have changed nothing but have changed everything. One reality is that convergence has presented an opportunity to revisit the whole issue of news media regulation and accountability. The other is that its has been technology that has forced the reconsideration.
It will be interesting to see what happens next, for we have travelled only part of the road.
Note:
The Mosaic Approach to Theory Development or Exemplfication.
In his book “Furies: War in Europe 1450 – 1700” historian Lauro Martines uses a collection of incidents and mini-tales to illustrate and develop a pattern of the nature of war in Europe during his period, and to develop the common themes that make up this study. He considered that the nature of the subject was so complex and the wars that raged throughout Europe were so diverse, employing new technologies as they became available, that the story could only be told by way of a mosaic rather then what could be considered a “linear” study.
In some respects a study of the way in which new communications technologies and protocols impacts upon law, and the use of law as a means of regulating new communications technology in a paradigm of continuous disruptive changes defies a linear approach and favours a mosaic one. Yet, by the same token, story-telling or developing evidence to support an hypothesis is not unknown in the law. Far from it – it is employed in every evidence based trial for, try as they might, it is almost impossible for lawyers to present a strictly linear narrative in presenting evidence by way of witnesses unless they recall the witnesses from time to time to address a particular evidential issue. This was employed in the case of R v McDonald and is the exception rather than the rule. But in most cases it is for the lawyers to construct a coherent narrative from the evidence for the benefit of the jury or the fact finder and, in the context of the criminal jury trial, for the Judge to locate that narrative within the fabric of the law and thereby direct the jury accordingly.
I have suggested that a study of the impact of new communications upon the law and the development of legal rules favours this mosaic or “jigsaw” approach. One reason is that the field is one of constant flux where the evidential certainties often change. What an historical reality may justify one day may prove to be overtaken by subsequent events. Yet at the same time these pieces from a recent past may at least illustrate if not a theme at least a part of one, and when located within a wider framework may assist us in reaching some conclusions even although they may he in the nature of informed generalisations or partially supported hypotheses.
i have already written in this field and provided some examples of show technological change in the field of communications technologies impacts upon behaviour and values and challenges existing legal rules. At the same time changes and developments in ICT may drive legal change, although in some respects the changes that are made rather preserve a rule developed in an earlier paradigm rather than recognise the qualities of the new one, and the behavioural changes that it has boroughs or will bring about. In time I hope to assemble enough pieces of the mosaic or puzzle to develop a universal theory about the impact of communications technologies on the development of rules. I have no illusion that this will be a formidable task, but every journey starts with one step. I have already taken one or two. This piece represents another.
It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.
To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.
A helpful overview is a piece entitled “The Wired Juror Unplugged”by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.
” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”
The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.
” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”
Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:
“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”
Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.
Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.
In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.
The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….
In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.
The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.
The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the Conference of Court Public Information Officers (CCPIO) . The article notes:
A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.
The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.
The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.
Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.
“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”
The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.
The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”,Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.
Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.
One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.
As a new generation arrives with different expectations for conversations and interactions, courts now face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools? What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.
Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:
These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.
The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.
At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.
There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can. Don’t wait. The world has already changed.
The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.
They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.
8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.
The report came hot on the heels of the case of Stephen Pardon who was jailed for four monthsfor contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.
The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.
The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.
There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.
It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.
John Rastell and Anthony Fitzherbert
John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.
From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.
He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.
Rastell’s Prologus to the work states:
And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same
Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]
La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings. A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.
A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.
Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.
Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own
The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.
Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.
The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]
Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]
This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.
The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”
Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should
“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]
Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.
The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.
There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.
Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.
The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]
Edmund Plowden
Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:
[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]
The second was,
to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]
But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.
Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books. This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.
Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.
“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”
Plowden’s attitude towards the concept of authorship is unusual. There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it. Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication. Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.
Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.
Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.
So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]
The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions of others ensured that advantage was taken of those qualities.
And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.
Sir Edward Coke
Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.
Coke was appointed Chief Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James I
But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.
In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]
Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.
“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]
Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.
“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……
I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]
At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:
For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]
and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]
The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:
“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance. But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]
Coke’s value upon education and learning appeared in the second volume of the Reports:
There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]
It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.
“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]
In his discussion of the style of his case reporting Coke gave further advice to students.
“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]
Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]
Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.
The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects
“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]
As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports
“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……
And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….
A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]
It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:
“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading. But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]
The educational importance of his work was continued in the Book of Entries in which it was stated on the title page that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.
Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.
Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.
“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]
By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:
“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]
Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all. Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.
“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]
And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:
“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]
By the Eighth Volume Coke had refined what he considered his duty to publish Reports
“So ought every man according to his power, place & capacity to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having observed many things concerning my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]
and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]
The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.
“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]
The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47] Coke superficially complied and addressed one law suit. That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]
But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]
When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.
But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.
Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.
[1] The other most notable one of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.
[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.
[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702
[4]Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.
[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.
[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.
[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103 for discussion of their role.
[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.
[13] Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.
[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.
135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print – A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.
[15]Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.
[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3rd ed) (Butterworths, London, 1990) p. 180.
[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.
[21] Ibid. “The Preface to the Reader.” Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader” Folio C2 pages unnumbered.
[22] 7 Cokes Reports The Preface Folio aiii pages unnumbered.
[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.
[24] It is not clear on the face of the Reports where Coke’s interpolations occur.
[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.
[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.
[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.
[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..
[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.
[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.
This paper considers the challenges posed by the information communication technologies of the Digital Paradigm to existing concepts of the fair trial by an impartial jury. It will argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal jury trial and its continued place, unchanged, within the legal spectrum.
The paper addresses the nature of the problem and the issues that arise from the wide availability of information on the Internet and will address two major ways in which information use may potentially cause difficulties for the juror. These may be described as “information in” – juror research which may result in information coming into the jury room, and which may be disclosed or made available to other jurors – and “information out” – communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice.
The paper examines some possible reasons why it is that jurors wish to ignore judicial instruction and carry out their own researches. This will be viewed in light of the effect that new technologies may have on our wider expectation of information availability and the way in which those technologies enable behaviours.
The paper refers to recent research which may challenge the assumption that juror research may automatically result in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The paper concludes that while so challenged, the jury system can survive the encounter with new information technologies.
A part of this paper – Why Do Jurors Go On-Line – was published as a stand-alone piece here. The paper was presented to the International Criminal Law Congress in Queenstown, New Zealand on Thursday 13 September 2012.
In essence the paper argues that changing information expectations on the part of “digital native” jurors are having an impact upon the jury trial – which uses an archaic oral means of communication information. This creates a tension with the “information now” non-linear means of information acquisition that digital technologies allow. The suggestion is that there are a number of means of addressing the problem and adapting trial processes to accommodate the information expectations of jurors. In addition, it suggests a nuanced approach to dealing with juror misconduct based on an analysis of information flows and possible impact upon the outcome of the trial.
The IT Countrey Justice 