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

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

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

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

The first point that he makes is that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Diluting Prejudice

By way of preface this is a paper that followed a presentation at the Criminal Bar Conference in Auckland in 2018. It was submitted for publication the the NZ Criminal Law Review – the organ of the Criminal Bar Association – but continued delays have meant that the paper has not seen the light of day.

I have never had to publish or perish for Performance Based Research Funding and the only benefit that I can see with academic publishing is that a piece gets peer reviewed. One of the things that the Internet allows is for an automatic peer review process to take place once a blog post is put up. The upshot of all this is that I think I shall use this blog for my academic as well as non-academic pieces. As far as quotability or peer reviewing is concerned – as Caesar said – iacta alia est.

A copy of this paper has also been posted on Scribd – https://www.scribd.com/document/419303736/Diluting-Prejudice

 

Diluting Prejudice

David Harvey[1]

Abstract

This paper is about the steps that may be taken to dilute but not totally eliminate the prejudicial effect of on-line material that relates to a defendant about to stand trial. It is posited upon the fact that jurors, despite strong judicial directions, will go on-line to seek out information relevant to the case that they are trying. The solution lies in the use of what could be described as “take-down” orders whereby material is removed from websites and de-indexed from search engines during the course of the trial to eliminate or dilute any prejudice that may otherwise arise. The remedy of a “take-down” order restores the qualities of practical and partial obscurity of prejudicial information that was a characteristic of the pre-Digital Paradigm. The paper also discusses the issue of juror contempt in light of proposed changes to the law in the Administration of Justice (Reform of Contempt) Bill.

I.            Introduction

In my article “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” I considered the challenges posed by the Internet to the criminal jury trial.[2] The Internet has dramatically changed the way in which people obtain, use, share and relate to information.[3] As a result, it has become more difficult to shield jurors from extraneous information during trial and, as I observed, it is easier for jurors to undertake their own research or share information about a trial beyond the courtroom. Visiting a scene can be done virtually by using Google Earth or Google Street View. Such information is increasingly readily available on the Internet via a computer or a smartphone.

I referred to a suggestion that to address the problem of juror attempts to access online information relevant to the trial, lawyers could conduct their own Internet research in advance to identify what information about the case is available, analyse it and deal with it during trial.  I observed that Courts in dealing with applications for severance and change of venue evaluated pre-trial publicity and these practices could provide a possible framework for evaluating new online sources of information that courts and jurors might access before or during trial.[4]

This article considers another remedy that may be available to deal with highly prejudicial information that may be on-line relating to a trial or to an accused. A   “take-down” order may be made, directed at an online content host requiring the removal of prejudicial content during the course of the trial.[5] Associated with such an order may be a requirement for the de-indexing of the material from a search engine such as Google, again during the course of the trial. It is acknowledged that such orders will not provide a complete answer to the problem, nor would an order for suppression pursuant to the provisions of the Criminal Procedure Act 2011. However they will serve to dilute the possible prejudicial effect accompanying pre-trial publicity.

The article commences with some observations about aspects of pre-trial publicity and the ability to recall such information in the pre-Digital Paradigm. It will be suggested that in this pre-Digital informational environment, given the various obstructions to the speedy recovery of archived information, compliance with judicial directions to jurors to refrain from carrying out their own investigations was likely to be greater.

Consideration will move to how the Internet challenges those previous assumptions about information, why it is that jurors are able to ignore judicial directions and why they might be likely to do so. This discussion will reflect on recent examples from cases where such directions have been ignored.

The discussion will then turn to recent cases involving take down orders. A number of cases will be considered with a focus upon four of them and the themes and assumptions arising from them. An attempt shall be made to ascertain why in these cases it is assumed that judicial directions will reduce the likelihood of jurors carrying out their own Internet-based investigations. It will be argued that this confidence is misplaced and that pro-active judicial information management is necessary to protect the right to a fair trial in the Digital Paradigm.

The importance of the evaluation of the content the subject of a take-down order will be considered with the tension that exists between the freedom of expression and the right to a fair trial as a backdrop.

Some of the proposals of the Law Commission and the use of court orders for a take-down of the material as a prophylactic to contempt will be contemplated .

There is now no doubt that the Court has the power to make take down orders. Practical considerations will be addressed including the procedure that should be adopted, those who should be served and heard on a take-down application and the type of information that should be put before the Court. The attitude of Google LLC to compliance with domestic Court orders has been the subject of some media publicity;[6] a possible solution to this apparent difficulty will be suggested.

The article will conclude with some thoughts about some possible futures for take-down orders as we move further into the Digital Paradigm.

 

II.         The Nature of Information and the “Fade Factor”

As the passage of time dulls memory, the impact and freshness of a news report is lost. This has been judicially recognised in cases where there has been a high level of publicity. Examples may be found in the cases of R v Bailey[7] and Iti v R[8] which both involved suspected terrorist activity in the Ureweras which attracted a high level of media interest. The effluxion of time meant that jurors might recall some of the publicity but not to the extent that a fair trial would be prevented.[9] In R v Reddy the Court, in noting that retrials may be held in the same location as the original trial, referred to the “fade factor” [10]

“because any attendant negative or prejudicial publicity is presumed to have faded from potential jurors minds. The collective memory of the public is subject to a “fade factor””[11]

Before the advent of the Internet in what may be termed the analogue or kinetic paradigm, the distribution and dissemination of information about a police investigation or a particular crime was almost exclusively through the news media – newspapers, radio or television. Despite the fact that television is seen as an influential medium, pre-Internet, it relied on what could be termed an “appointment viewing” model. Like radio, the audience had to be present in front of a receiver to listen to or view the broadcast. Once the broadcast had taken place, unless it was repeated, that was the only chance the listener had to hear or see the content.

Newspapers and magazines were slightly more enduring and could be read and re-read at leisure. However, the long term retention of copies of newspapers or the articles published was left more to the “morgues” of the newspapers themselves or the archives of a local library.

Another aspect of information dissemination was the way in which mainstream media was organised as a business. The method of dissemination for newspapers, radio and TV was (and generally still is) from a centrally located conglomerate –a radio or television studio or a newspaper publishing facility – to a widely distributed audience. This allowed for the control of the content and flow of information from the media organisation to the public audience.

The presence of these pre-Internet factors presented obstacles to the retrieval of historic pre-trial publicity about a case that enhanced the “fade factor”. These obstacles can be described as practical and partial obscurity.

  1. Practical Obscurity

Practical obscurity refers to the quality of availability of information which may be of a private or public nature.[12]  Such information may be indexed, in a central location or locations such as public libraries or newspaper rooms, in hard copy format, and is frequently location-dependent in that the information will refer only to the particular area served by that location. Interaction is required with librarians, officials or bureaucrats to locate it and to an extent prior knowledge of the particular file or repository within which the information source lies is required.

Practical obscurity means that information is not indexed on key words or key concepts, but generally on the basis of individual files or in relation to a named individual or named location.  Thus, it is again necessary to have some prior knowledge of information to enable a search for the appropriate file to be made. These are obstacles to the ready access to information. [13]

One practical example is the operation of hard copy newspaper archives. The ability to access a back copy of a newspaper poses a number of obstacles: travel to the repository by public or private transport, locating the volume within which the newspaper may be located and then laboriously reading through each copy of the newspaper until the article is located. The process is further complicated by the fact that hard copy of old newspapers is no longer available and the copies of newspapers are on microfilm.

  1. Partial Obscurity

Partial obscurity addresses information of a private nature which may earlier have been in the public arena, in a newspaper, television or radio broadcast, or some other form of mass media communication. Later than information can only be recalled in part as the result of the inability of memory to retain all the detail. Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity.  This underpins the concept of the “fade factor” referred to above.

To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.

These two factors exemplify the logistical difficulties confronting a would-be “investigative juror.” The “fade factor” worked to dilute and reduce the impact of any potentially prejudicial publicity so that whatever memory a juror might have gathered from pre-trial publicity about the circumstances of a case would have significantly reduced. Thus the clear recitation of events in the formal court-room setting would be far more likely to supplant any memory based or vague recollection of events. A direction to focus upon the evidence was far more likely than not to receive compliance simply because of the difficulties a juror might encounter in trying to locate earlier reports of a case.

This is not to say that the news media never overstepped the mark and published material that was prejudicial. It is for this reason that a remedy lay for publication contempt where there was a real risk, as distinct from a remote possibility, that a publication interfered with the right to a fair trial.[14] The strength of the test demonstrates that the nature of the publication might be likely to override the “fade factor” or the effects of partial and practical obscurity.

C.   The Internet as a Problem

The Internet challenges these concepts and indeed the “fade factor”. One writer has characterised the Internet as “digital memory”.[15] To understand the nature of the challenge, it is necessary to briefly sketch the topic of information qualities. These qualities have been developed to distinguish digital information from that of the pre-digital era. Information qualities sit below the content layer and involve a consideration of the medium of communication. In this way, McLuhan’s aphorism “The Medium is the Message” comes into sharp focus.

It would be wrong to say that the qualities of digital information are completely novel. Some are present in the pre-Digital Paradigm but as new technologies have become available these qualities have been enhanced. For example the quality of dissemination that Elizabeth Eisenstein argued was one of those that characterised and differentiated print technology from those of the scribal culture is present in the Digital Paradigm but to an extent unimagined in the print paradigm, limited as it was by the physical nature of copies.[16]

Along with the quality of exponential dissemination, two other qualities of digital information technologies – information persistence and information searchability\retrievability – especially highlight the paradigmatic difference that online information presents to the earlier Kinetic Paradigm.

Information persistence recognises that once information reaches the Internet it is very difficult to remove. It spreads through the network of computers that comprise the Internet and may be retained by any one of them. It has been described as the phenomenon of “the document that does not die”. Although information may be difficult to locate on the Internet, information persistence means that it will be available somewhere, if only in an archive. The fact that information is persistent means that it can be located by the digital equivalent of an archaeological dig – except that the trowel and spade are replaced by a search engine, which brings us to the searchability\retrievability quality.

Searchability\retrievability falls within the classification of user associated qualities, although there is a technical aspect to it as well. The technical aspect lies within the makeup of digital information. That information is in digital format which means that it can be searched. This is in startling contrast to information in documentary form which must be read – what is referred to as manual review – to retrieve relevant information.

Electronic discovery demonstrates the way in which the machine itself provides an answer to a machine-based problem. In litigation, huge volumes of digital information require analysis to determine the files or materials that are relevant to the case in question. To print out what often amounts to tens of thousands of pages, which then would have to bee manually reviewed, is seen as disproportionate in terms of time and cost. Software tools are thus deployed in e-discovery exercises, built upon the premise of quality of searchability of digital information.

The most ubiquitous search tool on the Internet is Google, but the same model underlies all search engines.

Search engines consist of 3 main parts. Search engine “spiders” follow links on the web to request pages that are either not yet indexed or have been updated since they were last indexed. These pages are “crawled” and are added to the search engine index (also known as the catalog). When the user searches using a major search engine, what in fact is searched is a slightly outdated index of content which roughly represents the available indexed content of the web. The third part of a search engine is the search interface and relevancy software. The search engine adjusts the search query for spelling variations, checks to see if the query is relevant to other vertical search databases and gathers a list of relevant pages, ranked according to the parameters in the page ranking software.[17]

Search engines are essential for the proper functioning of the Internet. Without them, the information that is located in servers on the network would be largely inaccessible unless the user was aware of the location of that information.[18]

The basic search using a search engine is one way of obtaining information required. Electronic material can be cross-referenced and indexed according to a number of criteria and may be selected on the basis of content as well as other identifying information. Using a full-text search, it may be possible to pinpoint information that may not be returned using standard keyword or metadata based searching.[19]  Indeed, if court decisions and records are open to web crawlers or web mining, past case information may be retrieved.[20]

Thus it may be seen that the concepts of partial and practical obscurity are overturned by the qualities of online digital information. Indeed, prejudicial information about a defendant, his previous criminal activities, associations and possibly even his convictions can be made available to an enquirer with ease.

In addition, the Internet reverses the “flow of information”. In the model of partial\practical obscurity the enquirer was required to go to the information; in the Digital Paradigm the information flows to the enquirer. Furthermore it has the same immediacy of the original publication had and is presented in “news” format. This “replication and recovery” of earlier news information has, depending upon the content, the potential to be highly prejudicial to a defendant’s “fair trial” rights.

The concerns that were expressed particularly by Wylie J about “historic” information and the lengths that a juror might have to go to locate prejudicial information overlooks a number of matters. [21] First, as has been observed, the Internet allows for the preservation of information so that when it is read it is as fresh as the day it was first published and its impact is maintained. Secondly, search engines enable the recovery of this information. As has been suggested, the Internet challenges the concepts of partial and practical obscurity. A “googling juror” need only search on identification particulars that are raised in the course of the trial to locate information. With respect, Wylie J probably underestimates the sophistication of search engines, their ability to retrieve information and the skill of an ever-widening community in being able to locate Internet based information. The emphasis on historic material is misplaced. If it is on the Internet, it is retrievable with the assistance of a search engine.

 

III.       Do Jurors Go Online?

A.   Internet Accessibility

Given the accessibility of information via Internet platforms, the likelihood of jurors conducting online researches is increased. To understand the nature of the problem it is necessary to appreciate the accessibility that New Zealanders have to the Internet.

The Institute of Culture, Discourse and Communication at Auckland University of Technology has conducted a number of surveys of Internet use in New Zealand under the name of the World Internet Project New Zealand (WIPNZ).

The fourth survey of WIPNZ was conducted between late July and early September 2013. In the Executive Summary the following observation is made about Internet usage on the part of the 2006 New Zealanders surveyed.

“For a large number of people the internet is used daily. Four out of five spend an hour or more online at home every day. Almost everyone under 40 is online, so that only 1% of our under-40 sample are non-users. Accessing the internet ‘on the go’ is prevalent. Seven out of ten users access the internet from a hand-held mobile device such as a smartphone or an iPad. Almost half of the internet users surveyed (48%) said that they had accessed the internet through a tablet, while an even higher proportion (68%) connected through their mobile phone in the past year.”[22]

The findings of the 2013 report indicate that Internet usage by a large sector of the New Zealand community is routine.

The 2015 WIPNZ report continued to monitor Internet usage patterns. Of those surveyed, only 8% did not use the Internet and were divided into ex-users (3%) and never-users (5%). This means that of those surveyed in 2015 92% were Internet users. Only 11% of the sample were described as low level users.[23]

The most recent survey indicates that 93.8% of the population have Internet connections but only 80% have a home connection. There are some 3.85 million mobile Internet connections – a figure which has stayed relatively steady with fluctuation over the last five years between 82% in 2013 and 79% in 2015 and 2017. Improved infrastructure and the introduction of ultrafast broadband has resulted in increased upload and download speeds and the uptake of fibre is fuelling large rises in data being used across New Zealand networks.[24]

The importance of this statistical information is that it demonstrates how Internet access and use has become part of the normal life of New Zealanders. It can be deduced from this that most, if not all, members of a jury pool will be Internet users, accustomed to Internet use and comfortable with obtaining information from the Internet.

B.   Overseas Juror Misconduct Studies

Having established that Internet access and use is a routine part of the lives of a very large number of New Zealanders, the discussion turns to a consideration of the use of the Internet by jurors. It is submitted that this is wider than may be initially thought, although no empirical research has as yet been conducted in New Zealand.

 

  1. England

However, juror use of the Internet has been studied in England by Professor Cheryl Thomas of University College London in a study undertaken in 2010 for the Ministry of Justice entitled “Are Juries Fair?”[25]  Professor Thomas’ study was conducted in three different locations (Nottingham, Winchester and London) and included 62 cases and 668 jurors. The sample included both long, high profile cases and standard cases lasting less than two weeks with little media coverage. Her findings revealed that those jurors who did seek out information did so using the Internet. Interestingly enough, more jurors said that they saw information on the Internet than those who admitted looking for Internet based information. The jurors admitted that they were doing something they had been told not to do, which may explain why more jurors said that they saw reports than those who admitted looking on the Internet.  There was a higher incidence of Internet enquiry in high profile cases.

81% of those who in these cases sought Internet-based information were over 30. Of all the sample who said they sought Internet-based information, 68% were over 30.[26] Professor Thomas’ study demonstrated that the problem of “The Googling Juror” is not limited to younger jurors.  67% of the jurors in Professor Thomas’ study were between the ages of 30 and 59. 17% were within the 18 – 29 year old age bracket in the Nottingham Crown Court study. The figures were 59% and 18% for the Winchester Crown Court. Thus the majority of jurors were over the age of 30.[27]

In a subsequent article Professor Thomas suggested that her research revealed that a small minority of jurors did not follow the rules relating to juror Internet use. [28]  She considered that conditions could amount to a “perfect storm” of improper juror conduct where jurors did not understand that they should not look for information (via the internet or elsewhere) about their case during the trial; that when jurors find such information they share it with other members of the jury; and where, even if other jurors know this behaviour is wrong, they are unwilling or do not know what to do to ensure that any verdict they return is fair.

In observing that it was impossible to monitor all aspects of Internet use during a trial, Professor Thomas was accepting that there would be some incidents of juror misconduct involving Internet use. Her position, in light of reviews that were proposed at the time of her article to English contempt of court laws, was that jurors need to understand what improper jury conduct is. Secondly, jurors need to clearly understand that if a fellow juror uses the internet improperly or if any improper conduct occurs it must be reported to the court. Thirdly, jurors must understand exactly how and when to report improper jury conduct and be provided with guidance that enables them to do so with ease.

 

Finally, Professor Thomas called for greater empirical evidence surrounding juror behaviour and what the best tools may be to assist them in performing their role. She urged that any reform of the law surrounding juror contempt should be based not on anecdotal evidence or high profile cases, but upon the fruits of such research.

  1. The United States

In the United States of America, one of the first surveys of jury behaviour was carried out by Professor Thaddeus Hoffmeister.[29] This survey was somewhat wider than that of Professor Thomas in that it was sent to federal judges, prosecutors, and public defenders to learn how they viewed the impact of the Digital Age on jurors. The questions focussed primarily upon juror research and sought to assess the extent of the negative impact (if any) of the Digital Paradigm on jury service. 10% of respondents reported personal knowledge of juror research although it was acknowledged that this sort of behaviour was difficult to detect and probably under-represented the actual number of jurors who resorted to Internet-based research.[30]

In an article in which she explores emerging technologies and its effect upon electronic juror misconduct, Judge Antoinette Plogstedt gathered together a large selection of instances of juror misconduct which had come to the attention of the Court.[31]

The problem of what is referred to as “independent juror research”, or as we might call it “juror misconduct”, is the focus of an article by Robbie Manhas in which he argues that more liberalised procedural and evidentiary rules should be adopted to allow jurors to take a more active role in proceedings.[32]

Assessing the frequency of juror misconduct relies, as was the case in Professor Thomas’ study, upon self-reporting.

“In a preliminary study of the frequency of juror and jury use of new media, the National Center for State Courts (NCSC) found that sizeable portions of trial jurors reported interest in using new media to conduct research on case-related topics and to communicate with friends and family about their jury service experience. Although the vast majority of jurors in that study had daily, if not immediate, access to new media, none of them admitted to acting on that desire. That study involved a very small sample of trials; however, it is clear from court opinions and news stories discussing the problem of the “Googling juror” that the risk is not purely hypothetical. In a review of court opinions published between 1998 and 2010, Thompson-Reuters reported that at least 90 verdicts were challenged based on claims of Internet-related juror misconduct. One-half of those challenges occurred between 2008 and 2010.”[33]

The National Center for State Courts developed a study in 2012 to explore the impact of new media on juries, and to establish the necessary survey and other methodologies needed to do so. A pilot jury study was undertaken in 15 civil and criminal trials.[34] Few jurors reported committing misconduct of any kind. However, a substantial portion either could not recall judicial prohibition on new media use or believed such searches were permissible. A sizeable proportion of jurors indicated a desire to use the Internet to obtain information relevant to the trial and a significant proportion indicated they would be unable to refrain from Internet use during the trial. Although the researchers were optimistic that the frequency of juror misconduct might be less than originally thought, the findings were less optimistic about the future. The vast majority of jurors had both technological access and the practical experience to use communications devices effortlessly and view these technologies as commonplace tools. The researchers observed that as younger cohorts join the jury pool access to the Internet and reliance on technologies for information will increase. They concluded

“A key factor will be the degree to which jurors continue to believe that the testimony of witnesses, especially expert witnesses hired by the parties, is more compelling evidence than what they can uncover on their own through information available to them via the Internet. Such conclusions will not be welcome news to those who wish to rely upon a more vigorous use of standard admonishments or on depriving jurors of access to the new media to keep the traditional, “unwired” jury.”[35]

In an earlier article I made the distinction between “information in” where jurors seek information about a trial or related matters, and “information out” where jurors communicate information about the trial or their experiences on social media.[36] Although the latter form of communication may prove ex post facto evidence or prejudice, the real concern must be the search for information relevant to the trial.[37]

Two surveys, although recognising that Internet-based juror misconduct may occur, conclude that jury instructions are the most effective tool to mitigate the risk of such misconduct.[38] The concerns surrounding those surveys were directed to wide issues of juror social media engagement during the course of a trial including communications during deliberations, communications with Facebook friends and jurors who blogged about their experiences. Although the surveys included incidents of juror research about a particular case, they covered a greater scope of misconduct.

The evidence is clear that there is a very real potential for jurors to go online and the possibility of a juror coming across prejudicial information (if it is available) is high. The number of incidents reported, especially from the United States, must give some cause for concern. Apart from the pervasiveness of and familiarity with the technology, it is suggested that there are deeper seated answers to the question why it is that jurors go online despite directions to the contrary.

IV.        Why Do Jurors Go Online?

Why is it that some jurors are prepared to ignore or flout judicial directions and carry out their own researches online? This is a question the answer to which is not clear and the detailed study by Professor Thomas does not conclusively answer. In pre-Internet days, juror researches involved physical engagement, either seeking information from a library or newspaper room or visiting a scene. These examples of practical obscurity are challenged by the Internet.

A.   Reversed Information Flows

The nature of information flows may serve to assist in clarifying the point. One of the factors that led to the practical obscurity of information was that the enquirer had to go and seek the information out. Thus the information flow was enquirer to information.

The availability of information online reverses that flow. Now the information moves towards the enquirer. There is little effort required, beyond carrying out a Google search, to seek out the information.

Coupled with this factor is that the enquirer is able to access the information from the privacy of his or her own home. This then leads to the way in which information can be sought surreptitiously. This quality of detachment may further explain why jurors are prepared to go online to seek out information.

Why is this significant? Juror enquiry is a recognised and recurring phenomenon. The consequences of such enquiry may be prejudicial to a fair trial and will result in mistrials and added delays in obtaining a fair outcome. Whilst an “after the event” solution such as a finding of contempt may contain certain deterrent qualities, a recognition of the phenomenon and an understanding of why it occurs will assist in considering and crafting possible remedies. The solution of a take-down order suggested in this paper, whilst not a cast iron one, will at least place obstacles in the path of juror enquiry.

Some of the drivers for juror enquiry that are inherent in digital information systems are now discussed.

B.   Because They Can

One of the disturbing realities of the Digital Paradigm is the ease with which information may be obtained. The time is well past where a requirement for Internet access is dependent upon a laptop or desktop computer. Access may be effected by means of a smart phone or a portable tablet using a wireless connection.

The instant availability of the resources of the Internet coupled with powerful search engines such as Google, Bing or Yahoo puts information in the hands of an Internet user in a matter of moments. The user may access the Internet not only at home but at a restaurant, café, on public transport and everywhere in between. Access can take place without apparent detection in the privacy of one’s own home. In addition, research indicates that access to the Internet for information has become the default.[39] The Internet has, in some respects, become a surrogate for memory as has already been suggested.[40]

C.   Different Rules Appear to Apply Online

The issue of whether or not there are, or should be, different rules for online behaviour has exercised Internet theorists from the 1990’s to the present day[41]. In some respects, the ease with which information may be accessed seems to suggest that earlier constraints on information access posed by practical and partial obscurity no longer exist. Accessing information on the Internet is more of a free-wheeling exercise aided by the quality of delinearisation of information which allows a user to follow whatever informational trails he or she may wish – from text to audio, to podcast to video, to a Youtube compilation or a learned article of the Social Science Research network[42].

This lack of constraint suggests to a user that following a query of interest is acceptable, even although it may have been the subject of an earlier prohibition. Why, in an information rich environment such as the Internet, should enquiry be limited? Trial lawyers and Judges have an immediate answer to that proposition, but to one not immersed in the legal culture, to restrict and limit enquiry when the information is so readily available seems counter-intuitive.

  1. Anonymity

Coupled with the private nature of information seeking is the illusion of anonymity given by the Internet. That illusion arises from the fact that an Internet user is rarely identified by name when engaging in a Google search or accessing a news website. The only identification assigned to a user is an Internet protocol number. The relationship between the IP number and the name of the individual is known to the individual’s Internet Service Provider. But unless the Internet user has identified him or herself on a platform, such as Facebook or Twitter, there is a form of anonymity that may engender a sense of immunity from consequences of one’s actions.

  1. The Online Disinhibition Effect

This sense of immunity is examined in some detail by in an article entitled “The Online Disinhibition Effect” by John Suler.[43]

Suler observes that often people say and do things in cyberspace that they wouldn’t ordinarily say and do in the face to face world.  This online disinhibition effect can work in two possible directions.  One is benign disinhibition where people share very personal things about themselves, revealing secret emotions, wishes and fears.  Toxic disinhibition, on the other hand, involves the use of rude or offensive language, harsh criticisms, anger, hatred, theft and threats.[44]  People may visit the dark underworld of the Internet, involving themselves in pornography, crime and violence that they would never explore in the “real world”.

Benign disinhibition may be indicative of an attempt to better understand and develop oneself – a form of “working through” or self-actualisation.  On the other hand, toxic disinhibition may simply be a blind catharsis, a form of repetition compulsion and an acting out of unsavoury needs without any personal growth at all.[45]

Suler examines possible causes for online disinhibition and what elements of cyberspace lead to the weakening of psychological barriers that block hidden feelings and needs. He identifies a number of factors.  Relevant to this submission is that of “dissociative anonymity”.[46]

An aspect of dissociative anonymity, yet in some respects separate from it, is that of “invisibility”.  In text-driven online environments, people can’t see one another.  This “invisibility” gives people the courage to go places and do things which they would not otherwise do.[47]

Emily Finch, an author and criminal lawyer studying identity theft in cyberspace, suggests that some people “see their online life as a kind of game with norms and rules that do not apply to everyday living… Once they turn off the computer and return to their daily routine they believe they can leave behind that game and their game identity.”[48]

Suler also observes that within the online environment there is something of a democratisation that takes place with a “minimisation of status and authority”.  In the real world authority figures express their status and power in dress, body language and the trappings of their environmental settings.  The absence of these together with a lack of the person’s elevated position means that person’s online influence has less effect.[49]

On the Internet everyone has an equal opportunity to voice him or herself.  The Internet provides a level playing field and Internet philosophy holds that everyone is an equal and that the purpose of the Internet is to share ideas and resources among peers.  This atmosphere and philosophy contribute to the minimisation of authority.[50]  Most people, who would normally be reluctant to say what they really think as they stand before an authority figure, are faced online with what is effectively a peer relationship, where the appearances of authority are minimised and people are more willing to speak out and misbehave.[51]

It is submitted that these Internet associated behavioural traits may well provide an insight as to why jurors may feel inclined to ignore judicial direction not to carry out online researches about a case.

F.    Internet Democratisation and the Erosion of Authority

The introduction of Web 2.0 and the development of user interactivity has enabled immediate participation within a debate and the ability to share one’s thoughts through the use of blogs, Twitter, Facebook and other forms of social media.

Furthermore, the ability to participate, engage in debate, seek out information and engage with others probably is the greatest opportunity to embark upon a form of participatory democracy.  On a global sense, that mirrors the Athenian form of participation and perhaps may even be the first time that the community has had such an opportunity to so engage.  The quality of participation is driving many governments towards considering on-line voting, recognising that the Internet enables an opportunity for greater engagement by the community with the political system.   The participatory possibilities of the Internet could well mean that, in the future, juries would hear trials on-line rather than being physically present in a court room.

On the other hand, the ability to interact allows many Internet users, especially on social media platforms, to have direct communication with others. This enables the ability to comment, dispute, debate and, sadly, to abuse other Internet users. The online disinhibition effect accounts for this breakdown of restraint in communication. Nevertheless this allows the digital equivalent of a “cat looking at a king” and the normal constraints and deference towards authority figures reduces when dialogue, debate, dispute and commentary become so easy. Although Judges may expect deference to their directions the gradual erosion of respect for authority based upon no other rationale than that of authority alone, especially when a direction may appear to be contrary to rapidly evolving cultural norms and information expectations, means that the weight attributed to a judicial direction may be reduced.

It will by now be apparent that simple reliance upon judicial directions to juries to refrain from accessing information about a case on the Internet may be ill-advised in light of changing cultural attitudes and information expectations. I shall now turn to some examples of juror misconduct in New Zealand and then move on the discuss the issue of take down orders.

  1. Cases and Examples in New Zealand

The phenomenon of jurors obtaining or receiving information from outside the Courtroom is not unknown in New Zealand.[52] For example, in one reported case, print-outs containing definitions of the “burden of proof” and “beyond reasonable doubt” were found in the jury room. This information had been sourced from the United States and did not correctly state New Zealand law.[53]Examples such as this occur despite observations that have been made about the efficacy of judicial directions and the fact that Judges are able to measure that efficacy in verdicts delivered by juries who, by their verdicts, show that they have understood and followed directions, including those as to prejudice and proper use of evidence.

Although this article takes the decisions in R v Tarapata[54] and Police v Kahia[55] as indicative of the main issues that surround take-down orders, there are a number of other cases that have come before the Courts where take-down orders have been considered. In some cases the orders have been granted, in others they have been refused and I propose briefly to refer to those cases. It should be observed that in the main the same major themes that are present in Tarapata are present in the cases under discussion.

It should be noted that the comments in R v B represent a clear recognition that judicial directions are not a not a completely effective means of preventing jurors engaging in Internet research.[56] Examples of cases where juror research has taken place include M v R[57]  and R v Harris[58]  where juror research included terms like “burden of proof” and “reasonable doubt.”

In M v R the defendant was convicted in June of 2015 on charges of cultivating cannabis and possession of cannabis for supply. He had previous convictions which had been reported in the New Zealand Herald in 2005. As the result of a communication between a juror and a police prosecutor, there was a suggestion that there had been juror misconduct involving the use of the Internet. This was advanced as a ground of appeal. The Court concluded that there should be an inquiry into the allegation.

The Court considered the provisions of section 76 of the Evidence Act relating to jury deliberations, observing that the section pointed more towards the admissibility of information about jury deliberations rather than prohibiting an inquiry. The allegation in this case was that although the jurors were not satisfied of guilt on the basis of the evidence adduced they conducted their own enquiries and returned a guilty verdict. The result was that Counsel was appointed to conduct an inquiry that was of a specific scope and report back to the Court.

What was significant about this case was that it demonstrates that not only were jurors willing to conduct their own enquiries, but they were also prepared to do so to try and shore up the Crown case against the defendant. If the misconduct were of the nature alleged, not only was there a complete breach of the admonition by the judge to refrain from researching, but clear evidence of partiality and the apparent willingness of the jury to undertake a partisan role.

The case of R v Harris and others was an appeal following conviction on fraud offences.[59]  The trial was complex having been brought by the Serious Fraud Office. There were a number of grounds of appeal but the relevant one for the purposes of this discussion arose as a result of a a member of Court staff finding a printout from the Internet site http://www.answers.com containing definitions of the burden of proof and beyond reasonable doubt. These printouts were located between the conclusion of the defence evidence and final addresses and was in clear breach of the trial judge’s introductory remarks in which he specifically directed the jury not to undertake research on the matters arising during trial.

The printout was drawn to the Judge’s attention and he made reference to it in his summing up, pointing out that he was aware that there had been research despite his specific warning. The Judge pointed out in clear terms that the American approach to the matters researched differed from that of New Zealand and that the jury was to take instructions from him and from no other source.

The Court of Appeal observed that the research was in clear breach of the directions of the Judge but observed that the jury room was cleaned out on a daily basis and it was unlikely that the printout would have been available for an extended period of time. The Court noted the strength of the Judge’s direction and observed that juror research has shown that jurors generally follow judicial directions in summing up so the possibility of jurors applying the wrong test was remote.

Whilst the Court was concerned about the possibility of contamination of the jury it was of the view that the possibility was slight.

This case nevertheless demonstrates one of the difficulties about attempting to limit juror research. A take-down or non-publication order may dilute any possible prejudice to the defendant arising from the publication of previous convictions or prior offending. It is impossible to eliminate all possible information that might be the subject of an enquiry. In this case a strong judicial direction had a curative effect, at least as far as the Court of Appeal was concerned. But this remedy would be available only where the juror misconduct was discovered.

An example of the scope of juror research may be illustrated by the case of R v V.V. Reddy.[60]  That case involved an online enquiry by jurors about the process by which DNA matches were obtained. During the course of the trial the jury wanted to know how the accused’s DNA was in the possession of the Police and how he was identified as a suspect. Agreed facts were placed before the jury that stated that samples were kept on a National Database, but the process by which they were obtained was not disclosed. A member of Court staff noted that a juror was looking at information about DNA on his phone. The judge interviewed the jurors, two of whom indicated that they were not satisfied with the explanations given and had decided to make their own Internet-based enquiry. The Judge concluded that the problem could not be cured by direction and the trial was abandoned. Once again, that case was one where the prophylactic effect of take-down or non-publication orders would have been inadequate. However, the Judge chose not to impose any sanction upon the enquiring and unrepentant jurors whose breach was quite blatant.

These cases seem to confirm the overseas research that jurors are prepared to carry out their own Internet enquiries in the face of judicial direction and that the consequences of such enquiries can potentially prejudice the outcome of a trial or alternatively require that the trial be aborted.

The case of R v Skelton provides an example of risk management and the importance of judicial proactivity.[61] That was a case which involved issues surrounding the custody of a child who was abducted. The child care issues had been the subject of Family Court proceedings.

An application was made for stay or change of venue on the basis that details of the Family Court proceedings may be recalled by jurors. That was considered to be unlikely, but by the same token the Court considered that the Family Court judgments, which were publicly available on the Internet, should no longer be accessible. The Ministry of Justice was directed to remove the material from the Internet site. The Court recognised that it was impossible to prevent access to the web, but generally jurors would comply with directions not to carry out online research.

Thus the granting of a take-down order in respect of prejudicial webpages is an exercise in risk management and significantly reduces the risk of a compromise to the defendant’s fair trial right. Whilst not acting as a complete answer to juror Internet research it would be nevertheless all the more unlikely for a “googling juror” to access the prejudicial content.

VI.        Take Down Orders

Consideration will now move to the nature of takedown orders and then move to a discussion of the decisions in Lyttleton[62], Tarapata[63], Kahia[64] and Y v R[65].

A.   What are take down orders?

How does one deal with the quality of persistence of information – with a medium that allows for the continued storage and availability of recorded information. One approach is to make the information difficult to locate. The case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González [66] which dealt with the so-called “right to be forgotten” in Europe required Google to de-index information so that certain results would not be returned in response to particular queries. Following the decision of the European Court in Google Spain Google put in place a process whereby it would consider requests to de-index information.

De-indexing however only makes the information difficult to locate; it does not remove the information entirely. The public notice advertisement which was the subject of Sr Costeja-Gonzales’ case in Google Spain is still available from the La Vanguardia website in Barcelona.

A take down order requires that a website administrator remove content from its servers or disables access to the content so that it cannot be recovered by a link to its URL. The removal of such content or disabling access to it is a relatively straightforward technological exercise. As will be discussed at a later point in this article, there are significant freedom of expression issues, especially where a take down order is sought against a news media website.

In some respects, take down orders and non-publication orders under s200 of the Criminal Procedure Act 2011 are associated. Non-publication orders usually refer to the non-publication of details of those appearing before the Court and, on occasion, details of the offence and therefore relate to contemporaneous restrictions on publication. A take down order relates to information that may already be in the public domain on an Internet website. In such a situation it may be difficult to make an effective retrospective order, although a takedown order could feasibly be paired with a non-publication order.

The New Zealand Law Commission has discussed the issue of non-publication of prejudicial material in its report on Contempt of Court.[67] Among its recommendations it suggests an association between non-publication orders and take down orders of prejudicial material. The Law Commission proposes a three step process. First, there should be a statutory prohibition upon the reporting of an arrested person’s previous convictions for the purpose of preserving the right to a fair trial.[68]

Secondly, there should be provision for an order postponing publication of other information if it appears necessary to avoid a real risk of prejudice to a fair trial. Such an order could be made at any time after arrest and before the trial has been completed, but it could not extend beyond the completion of proceedings.

Thirdly, and importantly for the present discussion, there should be provisions authorizing the court to make an order that an online content host take down or disable public access to any specific information covered by the statutory prohibition in any suppression order made under the proposals above.[69]

The Law Commission recommendations are reflective of the problems posed by the Digital Paradigm. They recognise the fact that the quality of persistence of information coupled with the ready availability of Internet based content of an historical nature can potentially be prejudicial to the fair trial rights of the accused. Whereas a contemporaneous publication could conceivably amount to a form of publication contempt, historical material may well have been published legitimately but, in light of changed circumstances, have taken on a prejudicial element. In this respect the proposals by the Law Commission are prophylactic in nature.

As far at the Courts were concerned the issue of take down orders had not come to any prominence until the case of Lyttleton v R[70] which I shall discuss in greater detail below. However, that case established that the Court had jurisdiction to make a take down order as part of its obligation to protect the fair trial rights of an accused person. Since that case there have been a number of instances where take down orders have been considered by the New Zealand Courts.

B.   Some New Zealand Take Down Cases

In the three or so years between Lyttleton[71] and Y v R[72], there have been a number of cases involving the removal of material from the Internet. These have not been widely publicised. They illustrate that the Courts are prepared to grapple with the problems posed by the availability of Internet based information. The issue of juror compliance with directions was considered by Ellis J in R v Lyttle.[73]

  1. R v Lyttle

Mr Lyttle was charged with murder in May 2011. His trial was due to commence late in 2017. In 2012, he was convicted of 5 charges of obtaining money by deception. There was an application by the Crown to have these convictions admitted as propensity evidence. The convictions were ruled inadmissible. They had little probative value and would have been prejudicial to Mr Lyttle.

When the convictions were entered there was publicity including an article published on the Stuff website. It was one of the first “hits” on a search using the string “David Lyttle Builder” on both Google and Bing.

The Crown sought an order that the article and links to it be taken down during the course of the trial. The application was supported by the defence and opposed by Fairfax.

Ellis J considered the decision of the Court of Appeal in Lyttelton and the observations regarding the remoteness of a juror locating potentially prejudicial articles on the Internet and the comment that there was an expectation that jurors would comply with directions not to conduct their own enquiries. However, Ellis J drew attention to the earlier case of R v B where William Young P and Robertson J suggested it “must be commonplace” for jurors to make internet inquiries such as googling the accused, despite judicial directions.[74]  They went on to say:

[79]   A specific direction to jurors not to “Google” the defendant may put the possibility of doing so into the mind of a juror who might not otherwise have thought of it.  There may be scope for debate as to whether it is best for a judge to square up to the detail of the prejudicial material or to deal with the topic with generalities.  The reality is that there is no simple and foolproof way for a trial judge to address the availability on the internet of prejudicial material about a defendant.

Ellis J also referred to the District Court case of R v Scott where the Judge ordered that articles relating to Mr Scott’s previous convictions for sexual offending be taken down during his trial on sexual violation charges. [75] The Court of Appeal commented favourably upon the take-down order saying that, together with standard directions, it would be safe to mitigate any potential risk.[76]

Ellis J then went on to consider recent research on Internet use by jurors. She observed that the Court of Appeal in Lyttelton relied on 1998 research by the Law Commission but had not noted that the Law Commission in 2014, in its Issues paper on Contempt in Modern New Zealand, expressed the view that the 1998 finding underrepresented the extent to which jurors use the Internet to find information during a trial because of the increased use of the Internet in the twenty-first century. Indeed, Ellis J observed – correctly in my view – that “there is simply no meaningful comparison to be drawn between internet use in 1998 and its ubiquity now.”[77]

In allowing the take-down order, Ellis J considered the following matters to be relevant:

  1. The article was over 4 years old and there was no contemporary public interest in it. In addition, the take-down was of limited duration and the value attached to freedom of expression was lower than in other cases. This contrasts with the suggestion in other cases that the historical nature of the material mitigates against a take-down.
  2. There was only one article which would be the subject of the order and again the freedom of expression was very limited. The practicalities of take-down were straightforward.
  3. The matters in the article had been ruled inadmissible and were prejudicial, thus the content had been the subject of evaluation.
  4. Notwithstanding that faith in the jury system was predicated on the fact that jurors would comply with judicial directions, “there is empirical evidence (which was not before the Courts in Lyttelton) that strongly suggests that that is not always the case in relation to internet searches.”[78]
  5. The unusual circumstances of the case and the way in which the defendant was implicated may pique jury interest and prompt what the Judge referred to as “defendant googling”.

 

Arguments against the order were that it could be presumed that jurors would comply with directions, although the Judge was of the view that this could not be absolute. Coverage of the trial would not link to the earlier article although that would not address the “googling juror” problem. She did pause at the argument that the removal of the article would not remove it from a Google search in that the snippet may still be present, but it was acknowledged by Fairfax’s counsel that removal of the article would make it difficult, even for a determined juror, to locate.

Accordingly, a take-down order was made.

Lyttle was decided on 4 October 2017. Tarapata was argued on 30 October 2017 and Moore J released his reasons for his decision on 10 December 2017. Counsel in Tarapata referred to Lyttle which was noted by Moore J.[79] However, he placed faith in the power of the judicial direction as a means of mitigating the risk that jurors may carry out their own enquiries.[80]

Other cases decided, however, assume that there is such a risk.

  1. R v Tranter

In R v Tranter,  decided on 4 November 2015 there was an application for an order that Fairfax Media, courtsofnewzealand.govt.nz, newzeelend.wordpress.com, odt.co.nz, and 3news.co.nz  were to remove any article from the internet that named the defendant, David Stanley Tranter, together with details of any conviction, sentence or court appearance involving him.[81] The order was to subsist until the disposition of Mr Tranter’s trial.

The application was dealt with under urgency and subsequently Fairfax applied to have the order cancelled. This was opposed by the defendant and the Crown.

This was a case where it appears that specific articles were not identified. Fairfax had used best endeavours to comply with the order. The articles complained of were historic and related to the defendant. The only details of any evaluation of content were that it was considered that the content should not appropriately be viewed by jurors or potential jurors.

Gendall J referred to Lyttelton which was relied upon by Fairfax, especially the comments about juror compliance with directions. On the other hand it was argued that if the material did remain online the case was more serious than Lyttelton and if the order was rescinded the fair trial rights of the defendant would be adversely affected.

The Judge agreed, which suggests again that there had been some evaluation of the content and it was observed that the material could be prejudicial although the decision does not say why or how.

Once the trial was over and the defendant had been found guilty the take-down order came to an end.

  1. R v Scott

R v Scott was a decision of the District Court on 28 June 2017. [82] The case involved a joint application by the Crown and the defence for a take-down order in respect of information relating to the defendant who was to undergo trial for sexual violation. It was proposed that material be taken down from Google as well for a period equivalent to the length of the trial.

It was observed that although the defendant had the benefit of name suppression up until trial, that would not assist him because his identity would be revealed to jurors who may use his name as the basis of an Internet search.

Fairfax Media opposed the application. It conceded that the District Court had the inherent power to regulate its process and to make such an order.

Judge Butler referred to the competing points of view on whether jurors would seek out their own information – Lyttelton v R on the one hand where it was held that the Court must proceed on the assumption that jurors will follow those directions and resist the temptation to make their own enquiries on the Internet;[83] and the other, the observation in R v B[84]

“Jury research has established that jurors often make their own inquiries despite judicial directions not to do so.  Internet inquiries, perhaps just in the form of “googling” the defendant, must be commonplace.  This means that publicity about a defendant can no longer be assumed to be of only transitory significance.”

A specific direction to jurors not to “google” the defendant may put the possibility of doing so into the mind of a juror who might not otherwise have thought of it.  There may be scope for debate as to whether it is best for a Judge to square up to the detail of the prejudicial material or to deal with the topic with generalities.  The reality is that there is no simple and foolproof way for a trial Judge to address the availability on the Internet of prejudicial material about the defendant.

Thus, Judges could not be confident that jurors would not obey instructions to refrain from making their own enquiries.

Fairfax suggested that the risk was not as great as it may seem.

  1. What if there was an appeal – what would happen to the short term order.
  2. Floodgates – that there would be an increase of such applications in jury trials.
  3. Take-down assumed that jurors would breach their oath.
  4. The order would not prevent a dedicated investigator seeking the information out.

The Court ordered that the order apply to Fairfax and to Google.

It should be noted that in Scott there does not appear to be any identification of the content by way of reference to URLs or other specific identifiers, nor does there appear to have been any evaluation of the content to determine whether or not it would be prejudicial. From a risk analysis perspective, this step is an important one. It can be inferred from the fact that the application was a joint one by Crown and defence that there was a recognition of the prejudicial nature of the content. Finally, there is no express discussion of the tension between the risk of prejudice to a fair trial and the freedom of expression and the Press. It seems to have been assumed that the fair trial interests of the defendant would be prejudiced to such a degree that a take-down order was justified.

  1. McMahon v Fairfax Media

The case of McMahon v Fairfax Media was unusual in that it centered upon a suppression order. [85] The accused was charged with burglary. He unsuccessfully sought name suppression in the District Court, but in the High Court Lang J ordered that details of the offending be suppressed. It was noted that as long as the details were suppressed there was no reason to believe that members of the public would have cause to access the Internet.

Subsequently, Fairfax published a report on the “Stuff” website. The report detailed the charges against Mr McMahon without naming him. An application was made for a take-down order in respect of the article. Courtney J noted that the purpose of the suppression order was to ensure that details of the offending remained suppressed. She was of the view that that there was a distinct risk that members of the public would realise what had happened and connect Mr McMahon with the offending reported on Stuff. A take-down order was made.

Interestingly enough, no comment was made about what appears to have been a breach of the suppression order. However, the primary focus of the case seems to be that of ensuring the integrity of the order. There was no expression of concern about possible juror enquiry, although that was a matter which concerned Lang J and an unstated concern that there could well be a downstream effect of connection of the unusual offending with the defendant.

Tranter, Lyttle  and Scott demonstrate a willingness on the part of some Courts to accept that there is a risk that jurors will conduct their own enquiries on the Internet and that prejudicial material should be taken down.

However, there have been four decisions, starting with Lyttleton which suggest something of a resistance to the making of take down orders and a preference for a reliance upon judicial directions to deal with the issue of the “Googling Juror”

  • Lyttelton, Tarapata, Y v R and Kahia
  1. The Decision in Lyttelton

The case of Lyttelton is an unusual one. [86] It is important because it is the first case in which appellate consideration was given to the issue of Internet take-down orders.

Mr Lyttelton had been convicted of a number of violence charges to which he pleaded guilty and was sentenced to a term of imprisonment. There was media coverage of the case and articles about it were published in hard copy and online. Mr Lyttelton served his sentence and then appealed his convictions and a retrial was ordered.[87] An order was made prohibiting publication of any of the proceedings including the result in the news media, on the Internet or any other publicly available database until disposition of the retrial.

In March 2015, with support from the Crown, Mr Lyttelton applied to the High Court for orders that the historic online articles about his case be taken down, arguing that the availability of those articles would be prejudicial to his retrial. Orders were made by Lang J that the article in question be taken down from the various websites. The media organisations involved removed the material but sought recission of Lang J’s order and following a hearing Lang J revoked his earlier order.[88] The appeal by Mr Lyttelton was against that revocation.

Lang J made five findings.

First, the articles were historic in nature and did not automatically appear when an Internet user went to a media home page. It would be necessary to search the website or employ a search engine such as Google to locate the content.

Secondly, it was unlikely that members of the jury pool would have a residual recollection of the publicity accompanying Mr Lyttelton’s case in 2009 or 2010 and the suppression orders would ensure that the media would not report on the matter.

Thirdly, Mr Lyttelton’s identity would be unknown to jurors until they were empanelled. At that time they would receive directions from the Judge.

Fourthly, those directions would be firm and clear that the jury was only able to consider the evidence placed before the Court and that they were not to conduct their own research.

Finally, the risk of juror enquiry on the Internet would only arise after jury selection and by that time directions would be given. Lang J was of the view that the Court had to proceed on the assumption that jurors would follow those directions and resist the temptation to make their own enquiry on the Internet.

There was considerable discussion in the judgment about the nature of the case and the proper appeal track, along with the question of whether or not the Court had jurisdiction to make the orders. Once the nature of the appeal was settled the Court was able to turn to the substantive appeal.

For the media, submissions from Fairfax were considered. It was argued that there was no sufficient risk to Mr Lyttelton’s fair trial rights to warrant reinstatement of the order and that the matters addressed by Lang J were compelling. Further it was argued that research carried out by the Law Commission in 1999 found that jurors were rarely aware of pre-trial publicity, that they made an effort to focus on the evidence before the Court and there was no evidence that they were affected by media coverage. The media also gave undertakings that the material would be restored to its original URLs and that media coverage of the trial would not link to those articles.

The Court considered that there was no real prejudice demonstrated by Mr Lyttelton and that Lang J’s approach was persuasive. The case was not in the public consciousness and a juror would have to actively search to locate the material. This was considered to be a remote possibility and did not justify the “drastic measure of removing all coverage of his previous trial from their respective online platforms.”[89]

The Court observed that this was not a high profile trial like the retrials of Bain or Lundy where pretrial publicity was seen as inevitable and irremediable in terms of juror exposure to it. The absence of contemporary media interest was a factor the Court considered.

Importantly, the Court emphasised that it agreed with the observations of Lang J that if directions are given by a trial judge jurors can be expected to comply with them, and there was no suggestion that this was unlikely to occur.

  1. The Decision in Tarapata[90]

In 2015, Mr Tarapata was tried and convicted on two charges of murder.  His convictions were overturned on appeal and a new trial was ordered.  The re-trial was set for late 2017.  The 2015 trial had been extensively reported in the media.  Those reports were available on the Internet.

Shortly before Mr Tarapata’s retrial, counsel applied for extensive suppression orders, including orders requiring various media organisations to forthwith remove from their websites references to Mr Tarapata’s first trial, including all content and electronic links.

The basis for the application was that if any members of the jury at the retrial undertook an internet search, they would discover details regarding Mr Tarapata’s first trial, which was considered highly prejudicial and would compromise his fair trial rights.

Justice Moore made without notice interim orders but directed that the various media organisations be served, reserving leave for them to apply to revoke the orders.  Following service upon the media organisation, they filed notices of opposition and affidavit evidence.  During the course of the trial, the Judge heard argument from all parties and determined that the interim orders that he had made should not be continued and they were rescinded.  He reserved his reasons which were delivered on 19 December 2017.

1.   The Factual Background

On 19 July 2014, Mr Tarapata entered a pawn shop on Great South Road in Takanini.   He attacked the two victims with a knife and stabbed them both to death.  He then fled the scene with his partner and finally drove to a Police Station in Huntly, where he gave himself up.

It appeared that his motive for killing the men was that he believed they were having a sexual relationship with his partner.  This belief was wholly unfounded and was driven by an intense paranoia and jealousy caused by psychosis and the defence of insanity was advanced.  It was accepted that Mr Tarapata was delusional and psychotic.

The Crown’s case at the first trial was that Mr Tarapata’s psychosis was caused by an external influence, mainly his chronic use of methamphetamine.  The defence position was that Mr Tarapata’s use of methamphetamine actually exacerbated an underlying organic psychiatric illness, known as schizophrenia, so that at the time of the killing, he was suffering from a disease of the mind.

As far as moral wrongfulness was considered, it was claimed by the defence that Mr Tarapata was driven by religious delusions and believed that God, as a higher moral authority, had directed him to kill the two men.  The Crown on the other hand argued that although Mr Tarapata was psychotic and delusional, he knew exactly what he was doing and intended the consequences.  He was simply a jealous person, even though he was psychotic and delusional.

The jury rejected Mr Tarapata’s defence and found him guilty and he appealed to the Court of Appeal.  The Court of Appeal allowed the appeal and ordered a retrial.  There were criticisms of the way in which the psychiatric evidence had been adduced and, in particular, the fact that much of the psychiatric opinion had not been based on primary evidence produced during the trial and tested by cross-examination.  There were criticisms made in relation to what the Court determined was the unfounded opinion of the Crown’s psychiatric expert on the role and influence of methamphetamine on the question of a disease of the mind.

At the second trial, Mr Tarapata was represented by new counsel.  There was considerable co-operation and consultation between the Crown and the defence.  In contrast to the first trial, the Crown agreed not to lead any evidence relating to Mr Tarapata’s methamphetamine use and the defence and the Crown had agreed that Mr Tarapata was suffering from a disease of the mind at the time of the killings.  Thus, the second trial proceeded on a much narrower basis.  The only issue was whether or not the defence had proved, on the balance of probabilities, that at the time of the killings, Mr Tarapata did not know that his acts were morally wrong, having regard to the commonly accepted standards of right or wrong.

The first trial, as has been noted, was extensively covered in the media and there was a significant amount of emphasis in the media upon the evidence relating to his methamphetamine use.  Approximately 10 days before the second trial, the defence counsel filed a detailed Memorandum drawing the Court’s attention to the body of the material available on the internet from Mr Tarapata’s first trial, including a transcript of the Judge’s full sentencing decision.

It was argued that it would be in the interests of justice for this material to be removed to reduce the risk of jury members undertaking internet searches on their own, discovering that there had, in fact, been a previous trial but that Mr Tarapata had been convicted.  Accordingly, take-down orders were sought.  On the eve of the trial, defence counsel filed a further Memorandum, observing that since the earlier discussions, further investigations had been undertaken and screen-shots were provided from what was described as a quick and simple search of the internet using Mr Tarapata’s name.

The next day the trial commenced and the jury was empanelled. The Judge made remarks to the jury, emphasising the importance of bringing an open mind to the task of judging and directed the jury in stronger terms than usual not to undertake any enquiries of their own.  Special mention was made of a prohibition upon undertaking internet and social media searches.  The Judge’s directions followed recommendations of the Law Commission in its discussion paper “Reforming the Law of Contempt of Court”.

The Judge also made interim orders, directing that the various media organisations, whose websites contained various references to Mr Tarapata’s 2015 trial, were to remove all content and electronic links relating to him and his trial.  The interim orders that were made are important because they set the scene for what was to follow and give important context to the approach of the media organisations and their opposition, as well as the way in which the Judge subsequently dealt with the matter.  The interim orders read as follows:

“I am prepared to make the interim orders sought on a without notice basis.  I direct that they are to continue until further order of the Court.  Accordingly, I direct as follows:

 

The listed media outlets below and any other media outlets served with this order forthwith remove from all websites within their direct and indirect control all references to the 2015 trial of the defendant, Zarn Tarapata, in this matter, including all content of electronic links to related material:

Television New Zealand

TV 3

Radio NZ

Maori Television

Fairfax Media

NZME

NZ Newswire

 

The operators of the search engines known as Google, Yahoo and Bing and any other operator of a search engine served with this order forthwith disable any and every link between a search term using the words “Zarn” and “Tarapata” (individually or in combination) and a website to the effect that users will not be directed to any websites that report any aspect of the defendant’s trial in 2015 in this matter, including subsequent sentencing; and

 

These orders will continue until the conclusion of the trial, or such other times the Court may direct.

 

If any party wishes to oppose the continuation of the orders, it is to file and serve a notice of opposition, setting in full the grounds of such opposition. That notice is to be filed and served within 48 hours of the making of these orders.

 

In the event of opposition, it will be necessary to convene a hearing and, if necessary, hear evidence.  I emphasise that the present interim orders are in order to preserve Mr Tarapata’s fair trial rights in the context of my assessment of the prejudicial material contained in the media reports I have been referred to.  Given the limited time within I have been obliged to deal with this matter, that assessment has not been as full or as considered as I might have wished.  It is possible that following any hearing my provisional view might change.

 

I direct that the orders be served electronically to the email addresses set out above”.[91]

 

Once the orders had been served, references to Mr Tarapata and his first trial were removed from the websites.  Google searches using Mr Tarapata’s name led to links which did not allow access to or the downloading of material.

However, in response to the opportunity to be heard, the news media organisations opposed the making of the orders. The Judge summarised the 13 objections by the news media, which fell into a number of generalised categories.[92]

First, the argument was advanced that the take-down orders were an unreasonable limitation on the media’s right to freedom of expression. It had not been demonstrated that there was specific prejudice or extreme circumstances from which the Court should infer prejudice to Mr Tarapata’s fair trial rights. No risk of prejudice had been demonstrated by the continuing availability of the historical articles relating to the first trial online.  Thus, the take-down orders were not necessary to ensure fair trial rights were preserved.

Secondly, the objection was raised that the jury could be expected to follow judicial directions.

Thirdly, the media also submitted that there was prejudice to the media in terms of compliance with the take-down orders, which involved extensive effort by the news media to identify likely material that should be taken down.  Furthermore, there was no guarantee that all of the material could be located, given the published articles they had copied, scraped or commented upon by third parties on other websites and on social media.

The Judge, in coming to his conclusion, first considered that the risk of prejudice to fair trial rights had to be a real one and that that risk would remain despite the strong direction given to the jury that they should not undertake any enquires of their own.

Furthermore, in assessing the risk of prejudice of fair trial rights, the Judge made reference to the fact that this was not a notorious case and that it was unlikely that jurors would bring any residual memory or knowledge of the earlier trial of Mr Tarapata to the first trial, thus meaning that their curiosity would not be piqued so that they would undertake an internet search.

On several occasions throughout his Judgment, the Judge emphasised the importance of residual memory or absence of public consciousness and used this to bolster his conclusion that it would be unlikely in that event that jurors would undertake an internet search.[93]  He considered that there was no real or substantial risk that a determined or irresponsible juror might undertake his or her own internet enquiries.

2.   Compliance Issues

The Judge’s orders were broadly expressed, as can be seen from the text above.  Essentially, what the order required was for media organisations to search their content management systems for key terms, such as Mr Tarapata’s name. This might not necessarily identify every piece of published content which might forward in the scope of the take-down order.

In addition, there was no control over what results Google or other search engines could display in response to a particular search and even when content was taken down, there may be snippets of information scraped from a particular article which might appear on the search results.

There were added compliance difficulties in terms of eliminating from the video content of news reports any specific content that related to Mr Tarapata’s trial.  Essentially, an entire news report would have to be taken down to eliminate access to a particular part of the video record – what the Judge referred to as deleting the historical record.

This led to the conclusion by the Judge that compliance with the orders was oppressive to the media organisations and that considerable resources were required to be re-directed from core business functions.

But the real problem, as far as this case was concerned, is articulated at paragraph [61] and following.

It was pointed out by Google New Zealand that the interim orders did not identify the content with sufficient specificity to enable a search engine provider, such as Google, to determine what content was required to be removed.  The search engine provider requires a full and complete URL in order to prevent the web pages of those URLs from being returned as search results.  Without URLs being specified, a search engine provider can only speculate as to which particular web pages may be covered by the orders.  Thus, search engine providers had difficulty in identifying specific content, as it was not part of their function to carry out a search for particular content and then determine whether or not the search engine would identify it.

In this commentator’s view, the absence of specific URLs that could identify content raise a number of issues:

(i)      As has been pointed out, it is difficult for search engine providers, such as Google, to de-index specific content without a URL.

(ii)     It is, perhaps, a tribute to the news media organisations that they were able to search their content management systems to locate potentially prejudicial material and take it down.

(iii)    However, the absence of specific items meant that it was not possible for the Court to carry out an evaluation of the material to determine whether or not it was sufficiently prejudicial to warrant a take-down order.  Without being able to consider the various items on a case by case basis, a proper evaluation and balancing of fair trial rights against freedom of expression and freedom of the press could not have been undertaken.

It is this writer’s view that this, in and of itself, could justify Moore J in rescinding the take-down orders.  However, as has been noted, there were other factors surrounding the outcome of the Tarapata decision.

  1. The Decision in Y v R

The case of Y v R[94] was an application for take-down orders in respect of 9 identified online articles published local news websites[95].

The applicant was charged with the murder of M in Northland in March 2016. His trial was due to commence in July 2018. Initially the take-down application was very wide, but, by the time it came on for hearing, it was refined to 11 identified articles. There was a further refinement during the hearing so that 9 articles were the subject of the application.

The argument on behalf of the applicant was that if jurors were to carry out an Internet search based on the name of the applicant, the address where the murder was alleged to have taken place or of some identified names, it would become clear that:

  1. The applicant was a member of a gang
  2. He had faced and still was to face other charges
  3. He was on the run from the Police for some time
  4. At that time he was considered armed and dangerous
  5. He was involved in another shooting where a person had died but in respect of which there was no causative link between the shooting and the death.

It was argued that, given the nature of the case, there was a real risk that a juror might become curious and seek out information about the applicant on the Internet and that risk existed irrespective of the direction that a Judge may make.

The media argued that the material was historic, implying that there was little currency in the material and that there was little public interest in the content. That meant that a juror would have to undertake a search for it and any risk that he or she might do so would be mitigated by appropriate directions by the trial judge. There were also freedom of expression issues raised by the case which the Court had to take into account.

Wylie J identified the tension between freedom of expression and fair trial rights that were raised by the take-down application which underpinned the fact that the inherent jurisdiction to make a take-down order should not be exercised lightly, but only where the risk to fair trial rights was a real one, rather than a remote possibility.[96] A real risk is one that is more than speculative in that there must be a likelihood of prejudice to the administration of justice.[97]

In a comprehensive decision which contained citations not only of New Zealand but also Australian authority, Wylie J assessed the issue of reality of risk under a number of heads. First, he observed that there was nothing remarkable about extensive pre-trial publicity. However, it was possible for any potential prejudice to be mitigated by the trial Judge. In some respects, this reflects the reality of partial obscurity.

Secondly, and associated with the first point, the Judge could direct jurors to take into account only the evidence that was heard in Court. This was an important consideration for Wylie J. There was a stated assumption that jurors would comply with directions and their legal obligations in considering whether there was a sufficiently real risk to warrant a take-down order. Similarly, the judge referred to Australian authority which holds that the court must be of the view that jurors may be inclined to seek access to material on the Internet, despite directions by the Judge.[98]

Thirdly, in determining whether there is a real risk of prejudice, the Court must consider the likelihood of material coming to the attention of a juror who wants to seek it out. Wylie J drew a distinction between a high profile case where there was relatively recent material with that which was less prominent in the public eye or where the material was historic. Wylie J referred to the decision of the Court of Appeal in Lyttelton v R.[99] In that case, the Court was of the view that there was an absence of real prejudice in that the articles in question were old and were not immediately available on the websites of the media organisations. It was noted that for a juror to search for them, a degree of proactivity would be required, using either the defendant’s name or that of the victims which the Court considered was a remote possibility. The Court considered that the case was not in the public consciousness and was unlikely to be the subject of significant pre-trial media coverage in a way that would make juror exposure inevitable.[100]

There were other matters which may be taken into account in determining the risk of prejudice, including the likelihood of innocent non-compliance, the oppressive nature of compliance and the alteration of the historical record, if it was unlikely that the material may not be restored to the Internet. On the other hand, commercial considerations would take second place to fair trial considerations.

In coming to his conclusion that the take-down order was not justified, Wylie J observed that the 9 identified items were historic in nature, having been published on the Internet in February, March and April of 2016. Historic articles, he concluded, were rarely searched although they could be found. Specific search terms were required such as the names of individuals, or addresses. If that information was not held or was unknown, it was unlikely that a person would be able to identify historic articles, even using specific searches.

Another significant factor was that the likelihood of a person carrying out a search before being selected as a juror was remote given that such a person, if summoned, would have no advance knowledge of the cases set for trial, nor details which might enable a search to be carried out. If there is to be a risk, it is once the jury is empaneled and Wylie J placed considerable store on the efficacy of careful and detailed directions. If pre-trial publicity was a concern, directions could be extensive including advice to jurors that carrying out independent enquiry would be a breach of court orders, could amount to contempt and render them liable to penalties. In addition, jurors could be directed to bring a breach by another juror to the attention of the trial judge. In the case before him, Wylie J concluded that there was no evidential basis for assuming that jurors would ignore such directions.[101]

Innocent non-compliance was not an issue in this case, given the way in which the articles had been refined and media representatives confirmed that the mechanics of take-down were not difficult. It was observed that there were difficulties with search engines and with those who may have republished potentially prejudicial material meaning that prejudicial material may remain on the Internet. In the same way that material was easy to take-down, it could easily be restored, thus meaning that the historical record would not be lost.

In the final analysis there was nothing which justified interfering with the freedom of expression by making a take-down order.

The approach in this case is similar to that in Tarapata. In Y, however, the content was identified and was evaluated. As it stood, the content was potentially prejudicial. Like Tarapata, there was a strong emphasis upon the efficacy of judicial directions and the associated matter that a casual enquiry by a juror was unlikely to uncover the material. Thus, there would have to be a degree of determination and a wilful flouting of a judicial direction to construct the necessary search strings that would locate the material.

D. The Decision in Kahia

Moore J, who decided Tarapata, also decided the takedown application in Police v Kahia.[102] In December 2014, Kahia was convicted of murder.  His conviction was overturned by the Court of Appeal the following year.  The matter was set down for re-trial which commenced on 14 May 2018.

At the first trial, the identity of the person who caused the fatal injuries to the deceased was the key issue and would be the key issue at the re-trial.  At the first trial, the defence was that the defendant was not the killer, who may have been any one of a number of other people that he was with that evening.

When the matter came up for re-trial, it became clear that the defence would be argued with greater particularity, in that it would be argued that it was not Mr Kahia who inflicted the fatal wounds but another specified person.  Thus, Crown witnesses would be examined a good deal more comprehensively about the nature of their prior relationship and their relationship with previous co-defendants.

An application was made for take-down orders of publicity about the 2014 trial.  It was supported by an affidavit.  This listed the available on-line material relating to Mr Kahia’s first trial, convictions and sentence.  The deponent, Ms Opetaia, undertook a Google search of the words “Hendrix Kahia”.  She also searched other word combinations, including “Hendrix Kahia murder”, “Gang Related Taupo Murder” and “Wiremu Birch.”  As a result, 17 articles were located.  The URLs were provided.  Four of the articles related to the offending itself and the charges brought against Mr Kahia and his co-defendants.  A further four related to evidence given during the first trial.  Three related to Mr Kahia’s conviction.  One result was a YouTube interview with one of the witnesses.  The other articles reported upon the imposition of a sentence of life imprisonment upon Mr Kahia.

Moore J observed that take-down orders had been considered by senior Courts on three previous occasions.[103]  He discussed the case of Lyttleton v R,[104] his own decision of R v Tarapata,[105] as well as the decision of Ellis J in R v Lyttle.[106]

Moore J considered that an analysis of the case law revealed the following principles:

  1. A Court must be careful to balance the right to freedom of expression with a right to a fair trial, conscious that the extent to which the interests will be engaged will depend upon the context of the application.
  2. Because the right to a fair trial is absolute, the context may require an order impinging upon the media’s right to freedom of expression by ordering the removal of new stories until the conclusion of the trial.
  3. The threshold question is whether there is a real risk that the applicant’s fair trial rights will be adversely affected if the material remain available. The test is whether there is a real or substantial risk a determined and irresponsible juror might undertake internet enquiries (citing Tarapata[107]).
  4. In resolving that question, the following factors will be relevant:

(a)     The level of notoriety, that is whether pre-trial publicity will be inevitable and simply irredeemable in terms of jury exposure to published material.

(b)     The likelihood that despite compliance with the take-down order material out of the control of the media will, nevertheless, remain available on line, which is in contravention of the order.

(c)     Whether interim suppression orders will have the practical effect of permanently removing material from the public historical record and the imposition on the media in terms of the cost of compliance.

Moore J noted the conflicting High Court authority on the question of whether in assessing the real risk a jury member might undertake their own enquiries.  He noted the Court should consider empirical evidence.

He referred to the decision of Ellis J in Lyttle,[108] noting that there was in fact empirical evidence that was not always the case that jurors would obey jury directions and that the presumption that they would do is not absolute.  However, by contrast in Tarapata, Moore J concluded it must be expected that a juror would adhere to very firm and tailored directions and that was a fundamental principle upon which the criminal justice process was founded.  Although it may be likely that disobedient jurors would undertake their own enquiries despite a judicial direction, there has to be judicial satisfaction that the real risk threshold had been crossed.

The Judge observed that pre-trial publicity necessarily carries a risk of prejudice to fair trial rights but the question was whether or not there was a real risk to those fair trial rights.

The Judge discussed the issue of whether jurors may be expected to adhere to judicial directions.  Even with the presence of adverse publicity and widespread media interest, there was authority which suggested that, notwithstanding this, jurors would focus on the evidence before them, as the material most immediately and recently to hand for their assessment and it was not to be assumed that jurors would ignore judicial directions to put to one side matters they may have heard outside the court.  Experience showed that jurors were responsive to judicial directions and tended to be more robust than defence counsel often assume. [109] Once Moore J had disposed of the issue of whether or not jurors might carry out their own enquiries in the face of strong judicial directions prohibiting such action, the outcome was quite predictable. If jurors were not going to “google”, what possible prejudice might there be?

There are some observations that should be made about Moore J’s approach in Kahia. Clearly the decision in Kahia reinforces Moore J’s approach in Tarapata.  There are some elements of nuance present in this decision that were not available in the earlier one, including a consideration of the conflicting approach of Ellis J in Lyttle. The Judge goes to some pains to distinguish that case primarily upon the nature of the information that was the subject of the take-down order and the amount of it.  Interestingly enough, he impliedly accepts that in Lyttle the real risk threshold had been crossed but it is suggested that a significant element was the prejudicial nature of the material.

What is of concern is the dismissive approach to the empirical evidence that is available.  Some (but not a great amount) of the research material available was presented to the Court.[110] The material submitted from the United States was in the nature of news articles than any careful empirical or academic studies, a number of which are readily available.  Nevertheless, it seems that Moore J has preferred to follow the established rubric articulated in Lyttleton, rather than shift his position on his reliance upon jury directions.

The question must be whether there may be a concern on the part of the Judge that to acknowledge that judicial directions may not be followed may  strike at the heart of the jury system itself.  If jurors are going to Google in breach of jury directions, are they more likely to ignore other directions about more fundamental aspects of the jury role?  Perhaps Moore J is concerned that by acknowledging the fallibility of judicial directions in this area that he perceives a potential erosion of the jury trial process.

There are a couple of other matters that arise from this decision.  One is that there seems to be a suggestion in the judgment that the take-down orders will remove prejudicial material.  This, of course, ignores the exponential dissemination quality of information on the internet.  What is sought to be achieved is a dilution of prejudice rather than a complete removal of it.  A court needs to understand how search engines work and the way in which removed material, coupled with the indexing in the page ranking system used by Google, will mean that other incidents of prejudicial material are less likely to appear in a Google search.

In addition it is suggested with respect that the reliance upon the “historical record” argument is a red herring.  A media content management system will easily be able to replace an article that has been taken-down and it is for that reason that it is suggested that take-down orders should be finite in duration to enable media organisations to replace the material once the order has expired.

  • The Themes Arising from the Cases

The four cases discussed have a number of common factors to them which can be expressed as general themes that underly the decisions.

 

  1. Juror Compliance with Judicial Directions

The first theme is of the issue of compliance by jurors with judicial directions not to engage in private research and especially online research. This theme seems to resemble an article of faith by judges and is seen as the prophylactic against jurors conducting their own research or carrying out their own enquiries.

 

There may, however, be a deeper concern. As I have observed, if a Judge is prepared to accept that jurors may ignore a prohibition against online research, perhaps implicitly there is a lack of confidence that jurors will follow other directions given during the course of the trial or, even more importantly, during the summing up.

 

The concern can be addressed in two ways. The first relates to modern reliance on technology discussed earlier in this article. The tendency for reliance upon devices is to obtain immediate access to information. Thus the Internet may be accessed to obtain details about a particular location from a maps application or Google Earth,  about one of the lawyers involved in the case, from a Google search or a review of Facebook, or about an accused from a Google search that might turn up an article containing details of previous convictions.

 

However, despite the concerns already expressed about the democratisation of information and the erosion of authority, it is suggested that judicial authority will add weight to directions on matters of law, such as the burden and standard of proof and the elements of an offence. In addition, visual aids such as question trails give added reinforcement to judicial directions on matters of law, thus demonstrating a difference in the quality of information that may be sought by way of a Google search.

 

  1. The Quality of Digital Information

The second theme relates to the nature of information on the Internet. Contemporaneity and notoriety of reporting on cases is contrasted with what is referred to as “historical material” which is unlikely to remain in the residual memory of a juror. This is akin to what has been referred to as the “fade factor” and involves consideration of pre-Internet assumptions about the nature of information, wrapped up in the terms “practical” and “partial obscurity”. These assumptions are challenged by the qualities of digital information in the Digital Paradigm, especially the availability of information by use of a search engine which is one of the most common navigation tools on the Internet.

 

The problem that must be recognised is that our assumptions about information and the validity of partial and practical obscurity must change and reflect the fact that we live in a new information paradigm where “historical” information is readily available and appears fresh and in the same format as when it was first made available. This is an issue that will increase as more and more information is digitised by default and “hard copy” becomes the exception.

 

  1. Freedom of Expression vs Fair Trial Rights

The third theme – a very important one – lies in the tension between freedom of expression and the freedom of the press to report Court proceedings with the right of an accused person to a fair trial. [111] In the cases for fair trial rights to trump freedom of expression, there must be a real possibility of prejudice as opposed to speculation. The “real possibility” argument has been addressed in the cases by reliance upon juror compliance with directions and the unlikelihood of jurors breaching those directions and locating the prejudicial information.

 

With the exception of Y v R, very little, if any, consideration has been given to the specific identification of potentially prejudicial content and an evaluation of that content for prejudice. Once the assumptions involving compliance with directions and the determination of a juror to locate content have been put to one side, there must be an identification of the individual items of content and an evaluation of that content for prejudice.

 

D. Media Compliance

 

A fourth theme involves the issue of compliance by media organisations with identifying content, taking it down and restoring it with associated considerations of possible interference with the historical record. Given the sophisticated content management systems employed by mainstream media organisations and the ease with which information may be located and relocated in the digital space, the “historical record” will receive but minimal interference given that a take down order will be of limited duration, after which the media organisation will be at liberty to restore the information once the order has expired. If there is a concern that might not happen and that a media organisation may overlook the opportunity to restore the historical record, it is suggested that this is an issue that reflects more on the information management systems of the media organisation than as a justification for refusing a take down order. Furthermore, the sanctity of the historical record cannot be seen as inviolate, given the developing concept of the right to be forgotten and the new provisions in the EU General Data Protection Regulation which replaces the former “right to be forgotten” with a right of erasure.[112]

 

  1. Searchability

 

The fifth theme involves dealing with the quality of searchability of content using a search engine and whether or not search engine platforms such as Google and Bing may comply with deindexing requests. It should be emphasised that in Tarapata what Google was required to do went beyond the de-indexing of identified content and required Google to evaluate content which it was reluctant to do. I shall address the issue of de-indexing below.

 

  1. Efficacy of Take Down Orders

The final theme which is addressed in the conclusion is that of the efficacy of take-down orders. Information persistence is a quality of Internet information together with that of exponential dissemination. There may well be cases where information about a case has spread beyond news media websites and may be located in unusual and little-known internet locations. If the information is available on Facebook, Twitter, Instagram and similar platforms, it can be identified and consideration given to its removal. But it must be emphasised that in the context of the Internet, a take-down order is not going to eliminate prejudice. It is only going to dilute its prejudicial impact.

  1. Freedom of Expression

A take-down order against a media outlet impinges upon the freedom of the press and the freedom of expression enjoyed by news media organisations as guaranteed by s 14 of the New Zealand Bill of Rights Act 1990.

The freedom of expression must be balanced against other affirmed rights and freedoms.[113] This applies not only to those contained in the New Zealand Bill of Rights Act, but in other areas, such as minimum standards of criminal procedure and fundamental principles of law, such as the protection and promotion of the free and impartial administration of justice.[114]

Parallels arise between take-down orders of prejudicial material pre-trial and elements of what the Law Commission refers to as “publication contempt”. Indeed in its recent report on the law of contempt, the Law Commission recommended a reform of the law to enable the “take-down” of online content, such as the previous convictions or publication of other material that may prejudice a fair trial.[115]

The tension between freedom of expression and fair trial rights arises frequently. The freedom of expression right protects open justice and the reporting of court proceedings. At the same time, the fair trial rights of a defendant have received recognition and may require an exception to the open justice principle.[116]

Section 5 of the New Zealand Bill of Rights Act 1990 confirms that a freedom such as that of free expression, ought to be restricted only so far as necessary to protect a countervailing right or interest, in that the freedoms contained in the Act are subject only to such reasonable limitations as are prescribed by law and are demonstrably justified in a democratic society.

Within the context of fair trial rights, the issue is whether the particular interference with the administration of justice is so serious as to override the freedom of expression.[117] Using the law relating to contempt as an example, especially that of “publication contempt,” the objective – protection of a fair trial or the administration of justice – must be sufficiently important to justify limiting the freedom of expression.[118] The limitation imposed must interfere with the freedom as little as possible.

In the case of Gisborne Herald Co Ltd v Solicitor General it was held that where there was a real risk that the publication of an article would prejudice a fair trial, freedom of speech rights and the importance of a fair trial and the proper administration of justice could be accommodated by deferring publication until after the trial[119].

The overriding importance of a fair trial in the context of the administration of justice was exemplified in the case of R v B (CA459/06)[120] where the tension arose in the shape of an application for a non-publication order and in respect of which Baragwanath J stated that “a fair trial trumps all”.[121]

It is suggested that the making of a take-down order amounts to a justified limitation of the news media’s rights and is supported by authority. Emphasis is placed upon the word “limitation”. A take-down order should be limited only to the duration of the trial and no longer – such time as is necessary to ensure protection of the defendant’s fair trial right and to ensure that a self-informing juror is unable to find the articles the subject of the order[122]. Once the trial is over, access to the material can be re-enabled.

Similarly limitations consistent with ensuring a level of free expression that aligns with the administration of justice and the right to a fair trial could be addressed by restricting the scope of the order solely to material that details the fact that a defendant has previous convictions or material from which that may be inferred and which would interfere with the presumption of innocence and associated fair trial rights.

The obligation on counsel to carefully consider and assess the prejudicial content is considerable. If evidence is going to be adduced, for example, of a defendant’s gang connection, it is unlikely that a take-down order would be made in respect of such information. This is because although publication of such information could be prejudicial, it would be raised within the context of the trial. On the other hand, if an earlier article included details of a defendant’s trial on a similar matter, including details of his previous convictions and criminal conduct, and there was to be no propensity application, such information could be prejudicial.

In some respects, the quality of information persistence that characterises Internet based information, together with that of searchability, places earlier publications of potentially prejudicial material into a grey area between the protection of a fair trial by means of a take-down order of prejudicial material and “publication contempt” which, in pre-Internet times was concerned more with inflammatory material that was published in mainstream media while a trial was pending or a case was sub judice.

X.          The Law Commission, Publication Contempt and Take Down Orders

The Law Commission in its recent discussion paper and report on Contempt was of the view that the current common law rules surrounding publication contempt do not contain any “bright line” directions and are unclear.[123] The scope of publication contempt is considered to be uncertain which may have a chilling effect on public discussion. On the other hand, an overly robust approach could be taken which could compromise fair trial rights.[124]

The clear principle emerging from the Law Commission report on contempt is the primacy of the importance of the fair trial as a justification for interfering with the freedom of expression.

One of the problems identified by the Law Commission was when those reporting events get it wrong and compromise fair trial rights. The problem is that it is difficult to remedy such a problem after the fact. If it becomes apparent that there is some form of publication prejudice, trials may have to be abandoned at considerable expense and inconvenience, not to mention speedy trial rights and an erosion of public confidence in the ability of the Courts to deliver justice. Further difficulties arise where a breach of fair trial rights is uncovered after conviction and sentence, revealing an unsafe conviction which must be set aside and a retrial ordered.

The Law Commission expressed some concern about the “real risk test”. It was suggested that there should be a separation between assessing whether there is a risk and determining whether or not that risk can be mitigated.

Finally, the Law Commission recognised the way in which information use and expectations have changed in the Internet age. Anyone may publish information or post images and video at any time. This strengthens the need for certainty and clarity in the law surrounding contempt.

The Law Commission proposals for prohibitions upon the publication of an arrested person’s previous conviction, for other information that should be suppressed to protect fair trial rights and an associated power to make take down orders[125] have been discussed above[126]:

 

It was recognised by the Law Commission that publication of previous convictions before trial would normally amount to common law contempt. It recognised that there was potential harm that arose from disclosure of this information and that the freedom of expression gave way to fair trial rights.[127] The temporary limitation of a suppression order recognises the importance of fair trial rights.[128] Although the proposal by the Law Commission is more restrictive than the common law, it clarifies the limitations that may be placed on pre-trial publicity and would deter publication of material that might jeopardise a fair trial.

 

The proposal for take-down orders against an online content host, requiring it to take-down specific material if it was necessary to protect fair trial rights would, if enacted, remove the take-down regime from Judge-made law to statute. A take-down order was recognised as a temporary measure for a particular purpose.

 

It was recognised that take-down orders would not be a perfect or complete solution, nor would they deter or prevent the determined internet user but the Law Commission concluded that they could go some way towards minimising the impact of an offending publication.

 

In summary therefore, publication pre-trial of previous convictions would be prohibited, although the prohibition should be kept under review. The postponement of publication of other material could be prohibited to avoid a real risk of prejudice to a fair trial and take-down orders could be made in respect of these two classes of information.

 

The essence of the Law Commission proposals recognises the importance of a fair trial and that displaces freedom of expression. However, the displacement is only within the context of the trial and the limitation of the freedom of expression is clearly circumscribed. Following conclusion of the trial, publication prohibition would no longer apply and material the subject of a take-down order could be restored.

 

  1. Identification and Evaluation of Content

It will be clear, especially from the discussion about freedom of expression issues, that an application for a take-down order should be made only in the most obvious cases of prejudice. This means that counsel should evaluate the content of the material carefully and be sure that the prejudice relates to the particular defendant and the issues that are before the Court. The precise identification of content does not appear from the decision of Moore J in Tarapata[129], although 9 specific articles were identified by Wylie J in Y v R[130]. In this writer’s view, one can only demonstrate a justified limitation on the freedom of expression by precisely identifying material and aligning it with the issues at trial to establish prejudice.

Once prejudicial content has been identified, the likelihood of retrieval will have to be demonstrated. The first step will be to develop search parameters and undertake careful searches for information based on those parameters. A record of the search parameters must be kept because the methodology of the process will have to be explained to the Court.

The record should include not only the search parameters but the date and time of the search. It would be advisable to take “screen dumps” of the search results to validate the results of searches. The results acquired by the searches may result in different rankings for the same material. A careful record of the rankings must be kept and the searches should be repeated over a period of days or even weeks to determine consistency of rankings and return. This exercise will identify possibly prejudicial material and establish a pattern of rankings that will provide an indication of the likelihood of retrieval using the various search parameters identified.

The search process and methodology, together with the results, should be recorded in an affidavit together with copies of the articles and their Universal Resource Locators (URL) and the search result screen dumps exhibited.

Alternatively, if the trial budget allows it, the services of a reputation management consultant could be obtained to carry out an extensive search and analysis of all potentially prejudicial material present on Internet platforms. Such an exercise might go well beyond mainstream media websites and include posts on Facebook, Instagram, Twitter and other social media platforms.

Because the substantive case is a criminal trial, any application that is made will be ancillary to the criminal proceedings. The reality is that although the principal parties will be the Crown and the Defendant, the online content hosts, be they news media websites or otherwise, will have to be served. Thus, in addition to an application for a take-down order, there should be an application for directions as to service of the take-down application upon the interested parties.

A comprehensive memorandum in support of the application clearly identifying the nature of the prejudice and the necessity for orders should be prepared and filed.

The order sought should only be as wide as necessary to dilute the prejudicial effect of the content. The maximum time frame for a take-down order would be for the duration of the trial and until the jury returned a verdict. Then access to the material could be restored. Thus, the order sought would be along the lines that the identified web-page content and associated URLs be removed from the website, or access thereto be disabled from the date of commencement of the trial until such time as the jury at the trial returns with a verdict.

  • Desirability of an Order and Meeting the Google Problem

It was clear from the decision in Tarapata that Google LLC, based in California, did not consider itself subject to the order that was made by Moore J. [131] In the view of this writer, part of the problem lay in the fact that the scope of the order was too wide, and went beyond the deindexing process that Google has put in place.

 

The difficulty with the order in Tarapata[132] was that Google was treated as a content provider, rather than as the provider of a means of locating content on the Internet. The roles may seem similar but in fact are substantially different. A mainstream media organisation such as the NZ Herald or Stuff are online content hosts. They have sophisticated content management systems which can be used to locate the content of a particular article. Google, on the other hand, scours the Internet for content and rather than preserve it (other than in a cache) indexes it and links to the particular source of the content. Other than a brief description or “snippet”, Google does not make the content available.

 

The primary source of reference for a Google search is a URL which enables a linking from the search result to the webpage where the content is located. The Google deindexing process means that the search results – the URL and hypertext link – do not appear in any searches for the content. Google removes those URLs from its search index.

 

Thus, in seeking a take-down order, the specific content should be identified by URL, not only for the purposes of prejudice evaluation, but also because it will be of assistance in a subsequent approach to Google.

 

Once the application is successful and an order is obtained the next step is to approach Google to deindex the content. This approach is necessary because a juror may conduct a search which returns a result and a Google snippet of the content, but trying to obtain the content by hyperlink would be unsuccessful. The prejudice is that the juror would be aware that at some time content of interest was available. Thus the ability to obtain such a result may be constrained by deindexing.

Following the “right to be forgotten” decision in Google Spain instituted a process whereby requests can be made to deindex content[133]. The process may be initiated at Google’s Legal Removal Requests page.[134] A copy of the Court Order for temporary removal of the content will have a persuasive effect upon Google’s decision to deindex. The process suggested would obviate the necessity for a deindexing application to be made which would be a complex, time consuming and expensive process involving, to start with, service upon Google in the United States.

 

  • The Future of Take-down Orders

The necessity for take-down orders will probably increase as Internet use continues and the availability of information online becomes an accepted way of informing oneself. The trend, at least in recent politics, which suggests that citizens are not simply prepared to accept the say so of an authoritarian figure means that jurors are more likely to go online to augment or verify the information that they hear in Court. Short of sequestering the jury, a restriction on the availability of prejudicial information would seem to be the only solution.

However, as has been suggested in this article, this is a remedy which should be used sparingly and only in the clearest cases. The Courts will be careful to scrutinise applications for take-down orders, mindful of the tension between the freedom of expression and fair trial rights. Nevertheless, it should be observed that although this article has directed attention primarily at mainstream media websites, the rise of the “citizen journalist”, the ready availability of Internet based publication platforms and their ease of use, and the development of private commentators on justice matters means that prejudicial material in these “new media” locations may need to be considered. One aspect of the matter that must govern whether or not a Court will interfere with this information is its ease of location utilising a search engine.

The final observation that should be made is that any prejudice that may be occasioned by the existence of online material may only be diluted and not totally eliminated by its removal and de-indexing. The solution of a take-down order may only mitigate or dilute prejudice, but it may nevertheless go part of the way towards ensuring a fair trial and addressing the problem of the Googling Juror.

[1] LLB (Auckland) MJur (Auckland) PhD (Auckland); Judge of the District Court (Acting Warrant); formerly Director, New Zealand Centre for ICT Law and Part-time lecturer in Law and Information Technology, Faculty of Law, University of Auckland. I acknowledge the assistance and inspiration provided by Justin Harder, Adam Holland and Katherine Maxwell together with Rosemary Tobin. I also acknowledge the assistance of Sarah Watt who offered a number of helpful suggestions on an earlier as well as the final draft. Sections of this article have appeared in another form in a discussion of injunctions and publication restraints in R Tobin and D Harvey Entertainment and Media Law in New Zealand (Thomson Reuters, Wellington, 2017) at p 89 et seq.

[2] David Harvey “The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm” [2014] NZ L Rev 203.

[3] For a detailed discussion see David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford 2017) especially at Ch 2 p 16 et seq.

[4] Harvey above n 2 at p 226.

[5] Other terms to describe the nature of the order sought include “gagging order”, although the context of the granting of a prior restraint injunction to prevent publicity of defamatory, confidential or private information occupies a different space in the control of publication of information.

[6] Sam Hurley “Google thumbs its nose at New Zealand Courts” 23 May 2018 NZ Herald https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=12056284 (last accessed 24 May 2018).

Sam Hurley “Considerable Concern at Google’s Unwillingness to follow Court Orders” 23 May 2018 NZ Herald https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=12057169 (last accessed 24 May 2018).

[7] R v Bailey High Court, Auckland CRI 2007-085-007842, 23 April 2010 per Winkelmann J.

[8] Iti v R [2012] NZCA 492.

[9] Bailey, above n 7 see especially paragraphs [50] et seq.

[10] R v Reddy [2016] 3 NZLR 666 at [65].

[11] Reddy above n 10.

[12] The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989).

[13] For a recent discussion of practical obscurity in the context of the availability of personal information in on-line court records see Jane Bailey and Jacquelyn Burkell “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2017) FIMS Publication 159 p. 168-169 http://ir.ib.uwo.ca/fimspub/159 (last accessed 29 April 2017).

[14] Gisborne Herald v Solicitor-General [1995] 3 NZLR 563 at 567. For a discussion of the law relating to contempt of court and publication contempt, see Rosemary Tobin and David Harvey New Zealand Media and Entertainment Law (Thomson Reuters, Wellington, 2017) at Chapter 6. See also New Zealand Law Commission Reforming the Law of Contempt: A Modern Statute R140 (New Zealand Law Commission, Wellington, 2017) http://www.lawcom.govt.nz/our-projects/contempt-court?id=1417 (last accessed 27 August 2017).

[15] Viktor Meyer-Schonberger Delete: The Virtue of Forgetting in the Digital Age (Oxford University Press, Oxford 2010).

[16] For a full discussion of the qualities of digital information see David Harvey Collisions above n 3 at Ch 2 and especially p 22 et seq. In developing a taxonomy of qualities each is broadly classified as environmental, technical and user associated.

[17] Harvey above n 3 at p37.

[18] Steps to limit or restrict the operation of search engines, as was the case in the “right to be forgotten” case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (2014) ECJ Case-131/12 http://curia.europa.eu/juris/liste.jsf?num=C-131/12&language=EN have a significant and detrimental effect upon the overall utility of the Internet.

[19] Ronald N Kostoff “Expanded Information Retrieval Using Full Text Searching” (2010) 36 J Information Science 104.

[20] Filippo Menczer “Complementing Search Engines with Online Web Mining Agents” (2003) 35 Decision Support Systems 195; Bailey and Burkell, above n 13 at p. 170 http://ir.ib.uwo.ca/fimspub/159 (last accessed 29 April 2017).

[21] See Y v R [2018] NZHC 489.

[22] A Gibson, and others “The Internet in New Zealand 2013” (Institute of Culture, Discourse & Communication, AUT University Auckland 2013) https://icdc.aut.ac.nz/__data/assets/pdf_file/0005/73445/wipnz2013final.pdf (last accessed 10 August 2017).

[23] C Crothers, and others “The Internet in New Zealand 2015” (Institute of Culture, Discourse & Communication, AUT University Auckland 2016) p. i. https://workresearch.aut.ac.nz/__data/assets/pdf_file/0003/71328/WIPNZ-Report-060515.pdf (last accessed 10 August 2017).

[24] A Techatassanasoontorn and others Karimikia “World  Internet Project New Zealand – Internet in New Zealand in 2017 (New Zealand Work Research Institute, Auckland 2018) especially at 5 https://workresearch.aut.ac.nz/__data/assets/pdf_file/0009/174915/Internet-in-NZWIP-2017.pdf (last accessed 7 September 2018) – see also InternetNZ The State of the Internet 2017 (InternetNZ, Wellington 2018) https://internetnz.nz/sites/default/files/SOTI%20FINAL.pdf at p. 4 – 8. (last accessed 7 September 2018)

[25] Cheryl Thomas “Are Juries Fair?” (Ministry of Justice Research Series 1/10, February 2010) https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf (last accessed 10 August 2010)

[26] Above n. 25 at p. viii.

[27] For other examples of Internet misuse by jurors see New Zealand Law Commission Reforming the Law of Contempt: A Modern Statute above n. 14 at para. 4.14 p. 73.

[28] Cheryl Thomas “Avoiding the Perfect Storm of Juror Contempt [2013] Crim LR 483

[29] Thaddeus Hoffmeister “Google, Gadgets and Guilt: Juror Misconduct in the Digital Age” (2012) 83 U Colo L Rev 409.

[30] Hoffmeister above n 29 at 414 – 415 (footnotes omitted). For other examples of juror misconduct see above n 2.

[31] Hon Antoinette Plogstedt “E-Jurors: A View from the Bench” (2013) 61 Cleveland St L Rev 597 at Part V.

[32] Robbie Manhas “Responding to Independent Juror Research in the Internet Age: Positive Rules, Negative Rules and Outside Mechanisms” (2014) 115 Michigan L R 809.

[33] Nicole L Waters and Paula Hannaford-Agor “Jurors 24/7: The Impact of New Media of Jurors, Public Perceptions of the Jury System and the American Criminal Justice System.” National Center for State Courts Center for Jury Studies http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Jurors_%2024-7_REV011512.ashx (last accessed 8 September 2018).

[34] Paula Hannaford-Agor, David B Rottman and Nicole L Waters “Juror and Jury Use of New Media: A Baseline Exploration” (National Centre for State Courts, Williamsburg, 2012) http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/New%20Media%20Study/NCSC-Harvard-005-Juror-and-Jury-Use-of-New-Media-Final.ashx

[35] Above n 34 at p 8.

[36] Harvey above n 2 at 208 – 209.

[37] For examples see Gareth S Lacy: Untangling the Web: How Court should Respond to Juries using the Internet for Research” (2011) 1 Reynolds Court and Media Law Journal 169 at 173-176. http://issuu.com/rnccm/docs/reynolds_courts_and_media_law_journal_vol_1_issue_/43?mode=embed&viewMode=magazine. (last accessed 8 September 2018). See also the examples cited in Harvey above n 2 footnotes 26 – 38.

[38] Hon Amy J St. Eve and Michael Zuckerman “Ensuring an Impartial Jury in the Age of Social Media” (2012) 11 Duke L & Tech Rev 1; Hon Amy J St Eve, Hon Charles P Burns and Michael Zuckerman “More from the #Jury Box: The Latest on Juries and Social; Media” (2014) 12 Duke L & Tech Rev 64.

[39] Hannaford-Agor, Rottman and Waters  above n 34.

[40] Viktor Meyer-Schonberger above n 15.

[41] For example see David R Johnson and David Post “Law and Borders – The Rise of Law in Cyberspace” (1996) 48 Stanford LR 1367;

Jack Goldsmith “Against Cyberanarchy” (1998) Univ Chicago LR 1199;

Judge Frank H Easterbrook “Cyberspace and the Law of the Horse” (1996) Univ Chicago Legal Forum 207;

Laurence Lessig Code and Other Laws of Cyberspace (Basic Books, New York 1999);

John Perry Barlow “A Cyberspace Independence Declaration” available at https://www.eff.org/cyberspace-independence (Last accessed 6 September 2018);

A.M. Froomkin “The Internet as a Source of Regulatory Arbitrage” in B Kahin & C. Nesson (eds) Borders in Cyberspace (MIT Press, Boston, 1997);

Henry Perrit “The Internet as a Threat to Sovereignty? Thoughts on the Internet’s Role in Strengthening National and Global Governance” (1998) 5 Ind J Global Legal Stud 423. For critical comment see J Goldsmith “The Internet and the Abiding Significance of Territorial Sovereignty (1998) 5 Ind J Global Legal Stud 472;

Molly Land “Towards an International Law of the Internet” (2013) 54 Harvard Int LJ;

Lawrence B Solum “Models of Internet Governance” in Lee A Bygrave and Jon Bing (eds) Internet Governance: Infrastructure and Institutions (Oxford University Press, Oxford 2009) at  48.

[42] For a discussion of the quality of delinearisation of information see David Harvey Collisions above note 3 at chapter 2.

[43] John Suler “The Online Disinhibition Effect” (2004) 7 Jnl of Cyberpsychology and Behaviour 321.

[44] Above n 43 at 321.

[45] Above n 43 at  321.

[46] Above n 43 at 322.

[47] Above n 43 at 322.

[48] Cited in Suler above n 43 at 323. In some respects this lends weight to the perception that different rules apply online.

[49] Above n 43 at 324.

[50] Above n 43 at 324. For further discussion, see below under the heading “Internet Democratisation and the Erosion of Authority”

[51] Above n 43 at 324.

[52] This phenomenon is not restricted to Internet based research. Despite “practical obscurity” issues, jurors have visited the scene of a crime (R v Gillespie CA 227/88, 7 February 1989), conducted experiments to work out how long it takes for a car engine to cool down (R v Taka [1992] 2 NZLR 129 (CA)). or how much heroin could be concealed in shoes (R v Sangraksa CA 503/96, 3 July 1997) and enquired of chemists about the availability and price of ephedrine. (R v Bates [1985] 1 NZLR 326 (CA)). None of these cases resulted in a prosecution for juror contempt.

[53] R v Harris CA 121/06, 27 September 2006

[54] R v Tarapata [2017] NZHC 3209

[55] Police v Kahia [2018] NZHC 1023

[56] R v B (CA 459/06) [2008] NZCA 130; [2009] 1 NZLR 293 at [78] – [79].

“Jury research has established that jurors often make their own inquiries despite judicial directions not to do so.  Internet inquiries, perhaps just in the form of “googling” the defendant, must be commonplace.  This means that publicity about a defendant can no longer be assumed to be of only transitory significance.”

“The reality is that there is no simple and foolproof way for a trial judge to address the availability on the internet of prejudicial material about the defendant.” [79]

[57] M v R [2016] NZCA 37.

[58] R v Harris above n 53.

[59] R v Harris above n. 53.

[60] R v V.V. Reddy [2016] NZDC 10437.

[61] R v Skelton HC Hamilton CRI-2006-019-006530 9 July 2008

[62] [2015] NZCA 279; [2016] 2 NZLR 21; [2015] 1 PRNZ 1.

[63] R v Tarapata above n. 54

[64] Police v Kahia above n. 55

[65] Y v R above n. 21

[66] Above n. 18.

[67] New Zealand Law Commission above n 14.

[68] There should be a requirement that the pre-trial or trial court to keep the prohibition under review and authorise the court to lift, extend or vary the prohibition as necessary in any particular case. The prohibition should apply from the time a person is arrested and only where the person is arrested for an offence for which he or she is liable to be tried by a jury (a category 3 or 4 offence).

[69] New Zealand Law Commission above n 14 at p.7.

[70] Lyttleton v R above n. 62.

[71] Above n. 62

[72] Above n. 21

[73] R v Lyttle [2017] NZHC 2426.

[74] R v B (CA 459/06) above n 56 at [78]. For further on R v B see below in the discussion about New Zealand cases of juror misconduct.

[75] R v Scott [2017] NZDC 13939.

[76] Scott v R [2017] NZCA 357 at [9] and [15].

[77] R v Lyttle above n 73 at [17].

[78] R v Lyttle above n 73 at [19](d).

[79] Tarapata above n 54 at [40].

[80] Tarapata above n 54 at [46].

[81] R v Tranter [2015] NZHC 2727.

[82] R v Scott above n 75.

[83] Lyttelton v R above n 62.

[84] R v B above n 56.

[85] McMahon v Fairfax Media [2017] NZHC 1812.

[86] Above n. 62

[87] Lyttelton v R above n 62.

[88] R v Lyttelton [2015] NZHC 763 (HC).

[89] Lyttelton v R above n 62 at para [64].

[90] Above n 54

[91] Tarapata above n 54 at para [24].

[92] Tarapata above n 54 at para [26].

[93] Above n 54 at paras [44] and [48]

[94] Y v R above n. 21

[95] Y v R above n. 21.

[96] Y v R, above n 21 at paras [27] – [28]; Gisborne Herald Co Ltd. v Solicitor-General above n. 74 at 567.

[97] Solicitor-General v W & H Specialist Publications Ltd [2003] 3 NZLR 12 (HC) at [19].

[98] Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 at [77] and [100].

[99] Lyttelton v R, above n 62.

[100] Lyttelton v R, above n 62 at [64] – [65].

[101] Y v R, above n 21 at [43].

[102] Police v Kahia above n. 55.

[103] There have in fact been others – see R v Tranter above n. 81; McMahon v Fairfax Media above n. 85 and Y v R above n. 11. There is also the District Court case of R v Scott above n. 75.

[104] Above n. 62.

[105] Above n. 54.

[106] Above n. 73.

[107] Above n 54. The decision of Wylie J in Y v R above n. 21 articulates this test.  The Court must be satisfied that a real risk exists, despite a direction to the jury not to undertake enquiries of their own.

[108] R v Lyttle above n 73.

[109] See R v Rickards HC Auckland CRI-2005-063-1122, 28 November 2005

[110] For details of the material that was available as at 2014 see Harvey above n 2.

[111] I shall discuss the important issue of freedom of expression below.

[112] General Data Protection Regulation, Article 17.

[113] Solicitor-General v Radio New Zealand Ltd [1994] 1 NZLR 48 (HC) at 59, and see comments in R v Chignall & Walker [1990-1992] 1 NZBORR 179.

[114] Solicitor-General v Radio New Zealand Ltd, above n 113; Duff v Communicado Ltd [1996] 2 NZLR 89 (HC).

[115] New Zealand Law Commission Reforming the Law of Contempt of Court: A Modern Statute above n 14 p 36 – 51. For a summary of the proposals for take-down orders see p 7 R 3.

[116] Siemer v Solicitor-General [2013] NZSC 68; [2013] 3 NZLR 441 at [158] – [159]; L v R [2015] NZCA 279; [2016] 2 NZLR 21 at [24].

[117] Duff v Communicado Ltd above n 114 at 100.

[118] Solicitor- General v Radio New Zealand Ltd above n 114.

[119] Gisborne Herald Co Ltd v Solicitor General above n 14 at 575.

[120] R v B above n 56.

[121] R v B above n 56 at [2 ].

[122] A similar approach was adopted in Gisborne Herald Co Ltd v Solicitor General above n 14.

[123] NZ Law Commission above n 14.

[124] NZ Law Commission above n 14 pp. 46 – 47.

[125] Above n 14 p. 48 para 2.55

[126] See the discussion above under the heading of VI Take Down Orders.

[127] Above n 14 p. 48 para 2.58

[128] Siemer v Solicitor-General above n 116.

[129] Tarapata above n 54.

[130] Y v R Above n 21.

[131] Tarapata above n 54.

[132] Tarapata above n 54.

[133] Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González  above n.66.

[134] https://support.google.com/legal/answer/3110420?visit_id=1-636293565525935582-2797058458&rd=1 (last accessed 3 May 2017).

Kids, Privacy and Social Media

In mid-December 2002 Mrs Marie Hosking, recently separated from her broadcaster husband, was photographed walking her children down a street in Newmarket, a suburb in Auckland. The photographer in question was one Simon Runting who had been commissioned by a woman’s magazine to take the photos for a proposed article. Both Mr and Mrs Hosking were very protective of the privacy of their children. They were entitled to their privacy. So Mr and Mrs Hosking commenced proceedings.

First they had to establish that there was a cause of action – a tort or civil wrong based around a right to privacy.

Secondly, if such a cause of action was available, did the circumstances of the case fall within it which would allow the Court to provide a remedy.

A full Bench of the New Zealand Court of Appeal agreed that New Zealand law recognised a tort of invasion of privacy. Tipping J expressed the tort in summary as follows:

I would therefore summarise the broad content of the tort of invasion of privacy in these terms. It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it. (Hosking v Runting [2005] 1 NZLR 1 at para [259]

However, although the Hoskings were successful in establishing that there was a right to privacy which could be invaded, the Court held that in this case there was no expectation of privacy and they failed to establish a breach of privacy. As Tipping J succinctly put it

I am of the view that neither Mr and Mrs Hosking, nor the children themselves, had a reasonable expectation of privacy in the photographs in question. They were taken in a public place. There is no evidence which satisfies me that publication would be harmful to the children, either physically or emotionally. There is, in my view, no greater risk to the safety of the children than would apply to a photograph of any member of society taken and published in a similar way. Any other conclusion would be based on speculation rather than reasonable inference from evidence. I doubt whether many members of society would regard the Hoskings as having expectations of privacy in current circumstances in respect of their children. I cannot accept that any such expectation as might be held would be reasonable in all the circumstances. I cannot see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility. (Hosking v Runting [2005] 1 NZLR 1 at para [260]

The facts of Hosking’s case were clear and not in dispute and involved a claim against another actor for privacy infringement – the photographer was a person who was entering what Hosking claimed was a zone of privacy for the children and intended, by publication of the photos, to extend that zone to a wider audience. The case fell upon the fact that in a public place – a street – there is no expectation of privacy.

The Internet and Social Media present a set of circumstances which challenge the use and control of personal information.

One phenomenon that has attracted some publicity is that of parents who place details of their family life on-line and especially include photographs of their children. Now this seems to run entirely counter to the approach of the protagonists in Hosking v Runting who wanted to keep their children OUT of the public eye.

Two recent articles highlight the issue.  One – “The Rise of the Instamums”  is about a number of individuals who place carefully selected and curated photos of their children online and who manage to make a bit of money in the process with endorsements and product placement. The other, from Australia – “How Roxy Jacenko Inadvertently Became a Pin-Up Girl for Oversharing on Social Media” – demonstrates the dangers that may arise.

Like anything that is posted on social media, once it is there, it is there – the concept of the document that does not die.

The other issue is that once content has been posted, one loses control of it, so that it may be modified and doctored, as was the case with images of Ms Jacenko’s daughter Pixie.

Ms Jacenko, a PR consultant, has been criticised for commercialising her child, but apart from that there seem to be a number of other issues which arise particularly in the context of privacy which need to be considered.

Control and privacy is particularly relevant. Privacy is all about what information or aspects of one’s personal life one is prepared to disclose or share with others. There may be a number of reasons for disclosing such information, much of it to do with self-image, definition, how one wants to be viewed in society and the like. Social media may interfere with that significantly. Images of children, posted for the purposes of pride or as a form of journal of a child’s progress  may be hi-jacked for nefarious purposes (or worse). They may serve to identify a child and possibly provide associated information that may help to locate a child who may be of interest to one who, shall we say, has other than the best interests of the child at heart.  And then the photos can be used for revenge or harassment or abuse.

One hesitates to draw an analogy between the on-line and the real word – they are so different – but it has been observed that posting pictures of children online is the same as walking down a street passing out those pictures to complete strangers. When viewed in that light the posting of photos of children online takes on a different and indeed somewhat sinister dimension.

A propos of the “document that does not die” life for all of us goes on. The carefully curated photos of a child posted by a proud parent may, in a few year’s time, become a considerable source of embarrassment as the child grows into maturity. The photos could become the source of taunts, shaming or cyberbullying. It is doubtful that the target of such behaviour would relish the presence of his or her pictures on-line.

Given the ability to search out information within this everlasting informational context, it may well be that New Zealand law will have to develop a “Right to be Forgotten” to enable these kids as adults to attend to their own self-definition.

Privacy for children is something about which  Mr and Mrs Hosking were concerned. The Court held that there was no expectation of privacy in a public street. Likewise, there is no expectation of privacy on a social media site. Perhaps kids should have that private space within which to grow and develop. And then they can make the choice about whether photos of them remain in the family album at home or online.

Facebook Friends on Appeal – Murray v Wishart

In an earlier post I discussed the decision of Courtney J in Wishart v Murray and dealt specifically with the issue of whether the “owner” of a Facebook page was the “publisher” of defamatory comments made on that page by third parties. The case was appealed to the Court of Appeal (Murray v Wishart [2014] NZCA 461). The judges unanimously held that a third party publisher – that is the owner of the Facebook page that contains comments by others – was not liable as publisher of those comments. They rejected the suggestion liability should attach because the owner of the page “ought to have known” that there was defamatory material, even if he or she was unaware of the actual content of the comment. The Court adopted a more restrictive approach, holding that the host of a Facebook page would only be liable as a publisher if there was actual knowledge of the comments and that there was a failure to remove them in a reasonable time in circumstances which could give rise to an inference that responsibility was being taken for the comments.

However, the approach of the Court, and its apparent recognition of some of the problems posed by the new Digital Paradigm, is of particular interest. In addition the decision leaves open other aspects of publication on platforms other than Facebook such as blogs.

The Background to the Case

Mr Wishart was the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner’s report found that the twins had died while in Mr Kahui’s sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.

Mr Murray learned of the impending publication of Mr Wishart’s book in June 2011. He established a Facebook page called “Boycott the Macsyna King book.”  He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people.

Mr Wishart commenced proceedings for defamation. He alleged a number of instances but one cause of action related to a claim against Mr Murray in relation to third party statements made by persons posting comments on the Facebook page. This post will be restricted to the way in which the Court dealt with that cause of action.

In the High Court Mr. Murray applied to strike out this cause of action. He was unsuccessful for the extensive reasons and analysis given by Courtney J and discussed in an earlier post. Hence, he appealed.

The Approach of the Court

The Court started by considering the following test applied by Courtney J and articulated by her as follows:

Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory. (Para 117)

This holding identified two tests – the “actual knowledge” test and the “ought to know” test. It was argued for Mr Murray that the actual knowledge test should be the only test for publication. As a first stet the Court considered how the Facebook page worked. This is an important and necessary first step in determining the proper application of existing rules. The Court said (at para 84)

An analysis of the positions taken by the parties requires a careful consideration of exactly what happened in relation to the Facebook page and on what basis it is pleaded that Mr Murray became the publisher of the statements made by third parties on the Facebook page. Although Courtney J described those posting messages on the Facebook page as “anonymous users”, that was not correct on the evidence. In fact, most of the users who posted allegedly defamatory statements identified themselves by name, are named in the statement of claim and could be traced by Mr Wishart if he wished to take action against them. So his action against Mr Murray is not the only potential avenue for redress available to him, though it was obviously more practical to sue Mr Murray for all the offending comments rather than sue many of those commenting for their respective comments.

The Court went on to discuss the way in which the page was set up and operated by Mr Murray. It noted that Courtney J had noted that Mr Murray not only could, but did, take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate, and also blocked particular individuals whose views he considered unacceptable. She found that he could not, therefore, be perceived as a “passive instrument”. Furthermore, Courtney J found that Mr Murray blocked Mr Wishart and his supporters from the Facebook page, which made it more difficult for Mr Wishart to identify and complain about potentially defamatory material. This impacted upon whether Mr Murray ought to have known of the defamatory postings.

The Use of Analogy

After considering the factual background to Courtney J’s finding, the Court went on to consider the legal path by which she reached her conclusion, her reliance upon the decision in Emmens v Pottle (1885) 16 QBD 354 (CA) and discussed at length the various decisions to which she referred. The Court then made the following significant comment  (para 99):

The analysis of the cases requires the Court to apply reasoning by strained analogy, because the old cases do not, of course, deal with publication on the internet. There is a question of the extent to which these analogies are helpful. However, we will consider the existing case law, bearing in mind that the old cases are concerned with starkly different facts.

The Court then went on to consider the factual background to a number of cases that had been discussed by Courtney J. (paras 100 – 123) and the decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47 which was decided after Courtney J’s decision. That case considered whether a host of an internet discussion forum is a publisher of defamatory statements posted by users of the forum. Although the main focus of the decision was on the availability of the innocent dissemination defence, the Court also considered whether the forum host was a publisher. It rejected the analogy with the notice board or graffiti cases, because in those cases the person posting or writing the defamatory comment was a trespasser. Since the forum host played an active role in encouraging and facilitating the postings on its forum, they were participants in the publication of postings by forum users and thus publishers.

The Court of Appeal then considered the various authorities that had been referred to by Courtney J and found that they provided limited guidance because the particular factual situation before the Court had to be the subject of focus. The reason for this was that the Court’s analysis of the authorities showed how sensitive the outcome may be to the particular circumstances of publication, and the fact that many of the authorities related to publication in one form or another on the internet did not provide any form of common theme, because of the different roles taken by the alleged publisher in each case.

The Court went on to examine the drawing of analogies , especially from authorities which did not involve the Internet. While noting that analogy is a helpful form of reasoning they may not be useful in particular cases. The Court observed that it was being asked to consider third party Facebook comments as analagous with:

  1. the posting of a notice on a notice board (or a wall on which notices can be affixed) without the knowledge of the owner of the notice board/wall;
  2. the writing of a defamatory statement on a wall of a building without the knowledge of the building owner;
  3. a defamatory comment made at a public meeting without the prior knowledge or subsequent endorsement or adoption by the organiser of the meeting

The Court then considered the circumstances in Emmens v Pottle which established that a party can be a publisher even if they did not know of the defamatory material. The holding in that case was that a news vendor who does not know of the defamatory statement in a paper he or she sells is a publisher, and must rely on the innocent dissemination defence to avoid liability.

The Court of Appeal considered that news vendor in Emmens v Pottle did not provide an apposite analogy with a Facebook page host. It observed that a news vendor is a publisher only because of the role taken in distributing the primary vehicle of publication, the newspaper itself. This contrasts with the host of a Facebook page which is providing the actual medium of publication, and whose role in the publication is completed before publication occurs. The Facebook page is in fact set up before any third party comments are posted.

So was the Facebook page more like the “notice on the wall” situation described in Byrne v Deane [1937] 1 KB 818 (CA)? This analogy was not perfect either. In Oriental Press Group the Court found that posting a notice on a wall on the facts in Byrne v Deane  was a breach of club rules and therefore amounted to a trespass. The Court of Appeal did not consider that the breach of the club rules was a factor affecting the outcome but rather that the club and its owners had not posted the defamatory notice and, until they became aware of it, were in no position to prevent or bring to an end the publication of the defamatory message. If a case arose where the defamatory message was posted on a community notice board on which postings were welcomed from anyone, the same analysis would apply. Furthermore, in Byrne v Deane the post was truly anonymous. There was no way by which the person posting the notice could be identified. In the case of the Facebook host, posting messages in response to an invitation to do so is lawful; and solicited by the host. Similarly, the Facebook host is not the only potential defendant whereas in Byrne v Deane, as has been observed, the poster of the notice could not be identified.

The Court also considered that drawing an analogy between a Facebook page and graffiti on a wall was also unhelpful. The owner of the wall on which the graffiti is written is not intending that the wall be used for posting messages. A Facebook host is.

One argument that had been advanced was that an analogy could be drawn with a public meeting – although there is a danger in equating the physical world with the virtual. It was argued that if Mr Murray had convened a public meeting on the subject of Mr Wishart’s book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others’ statements himself. The court felt the analogy was useful because it incorporated a factor that neither of the other two analogies do: the fact that Mr Murray solicited third party comments about Mr Wishart’s book. In addition speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. However, the public meeting analogy is not a perfect one in that statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page but it did illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting.

Problems with the “Ought to Know” Test

The Court then expressed its concerns about the “ought to know” test and Facebook hosts. First, an “ought to know” test put the host in a worse position than the “actual knowledge” test. In the “actual knowledge” situation the host has an opportunity to remove the content within a reasonable time and will not be a publisher if this is done. In the “ought to know” case publication commences the moment the comment is posted.

What happens when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment? On the “actual knowledge” test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the “ought to know” test he or she is a publisher as soon as the comment is posted.

Another concern was that the “ought to know” test makes a Facebook page host liable on a strict liability basis, solely on the existence of the defamatory comment. Once the comment is posted the host cannot do anything to avoid being treated as a publisher.

A further concern involved the need to balance the right of freedom of expression affirmed in s 14 of the NZ Bill of Rights Act 1990 against the interests of a person whose reputation is damaged by another. The Court considered that the imposition of the “ought to know” test in relation to a Facebook page host gives undue preference to the latter over the former.

A fourth issue concerning the Court was that of the uncertainty of the test in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk.

Finally the innocent dissemination test provided in s. 21 of the Defamation Act would be difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all aimed at old media and appear to be inapplicable to internet publishers.

Thus the Court concluded that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher.

Thus the decision clarifies the position for Facebook page hosts and the test that should be applied in determining whether such an individual will be a publisher of third party comments. But there are deeper aspects to the case that are important in approaching cases involving new technologies and new communications technologies in particular.

The Deeper Aspects of the Case

The first is the recognition by the Court of the importance of understanding how the technology actually works. It is necessary to go below the “content layer” and look at the medium itself and how it operates within the various taxonomies of communication methods. In this regard, it is not possible to make generalisations about all communications protocols or applications that utilise the backbone that is the Internet.

Similarly it would be incorrect to refer to defamation by Facebook or using a blog or a Google snippet as “Internet defamation” because the only common factor that these application have is that they bolt on to and utilise the transport layer provided by the Internet. An example in the intellectual property field where an understanding of the technology behind Google adwords was critical to the case was Intercity Group (NZ) Limited v Nakedbus NZ Limited [2014] NZHC 124.. Thus, when confronted with a potentially defamatory communication on a blog, the Court will have to consider the way in which a blog works and also consider the particular blogging platform, for there may well be differences between platforms and their operation.

The second major aspect of the case – and a very important one for lawyers – is the care that must be employed in drawing analogies particularly with earlier communications paradigms. The Court did not entirely discount the use of analogy when dealing with communication applications utilising the Internet. However it is clear that the use of analogies must be approached with considerable care. The Digital Paradigm introduces new and different means of communication that often have no parallel with the earlier paradigm other than that a form of content is communicated. What needs to be considered is how  that content is communicated and the case demonstrates the danger of looking for parallels in earlier methods of communication. While a Facebook page may “look like” a noticeboard upon which “posts” are placed, or has a “wall” which may be susceptible to scrawling graffiti it is important not to be seduced by the language parallels of the earlier paradigm. A Facebook “page” or a “web page” are not pages at all. Neither have the physical properties of a “page”. It is in fact a mixture of coded electronic impulses rendered on a screen using a software and hardware interface. The word “page” is used because in the transition between paradigms we tend to use language that encodes our conceptual understanding of the way in which information is presented. A “website” is a convenient linguistic encoding for the complex way in which information is dispersed across a storage medium which may be accessible to a user. A website is not in fact a discrete physical space like a “building site”. It has no separate identifiable physical existence.

The use of comfortable encoding for paradigmatically different concepts; the resort often to a form of functional equivalence with an earlier paradigm means that we may be lured in considering other analogous equivalencies as we attempt to try to make rules which applied to an old paradigm fit into a new one.

The real deeper subtext to Murray v Wishart is that we must all be careful to avoid what appears to be the comfortable route and carefully examine and understand the reality of the technology before we start to determine the applicable rule.

Facebook Friends: 3rd Party Comments and Publication for Defamation

When will the host of a Facebook page become a publisher of comments by third parties for the purposes of a defamation action? This was the issue which confronted Courtney J in the case of Wishart v Murray.( HC AK CIV-2012-404-001701 19 March 2013)

The background to the case was this. In a high profile case a young man by the name of Chris Kahui was charged with the murder of his twin baby children. He was acquitted after a highly publicised trial. During the trial he suggested that the babies’ mother, Macsyna King, had inflicted the fatal injuries. Although a coroner later found that the twins had died while in Mr Kahui’s sole care, this suggestion retained some currency in the public arena.

The plaintiff, Ian Wishart, an investigative journalist and writer, wrote a book about the case entitled Breaking Silence. Ms King collaborated in the writing. As publication of the book became imminent  the first defendant, Christopher Murray, established a Facebook page called “Boycott the Macsyna King Book”. He posted comments on Twitter and on the Facebook page criticising Mr Wishart and Ms King.

Mr Wishart commenced defamation proceedings against Mr and Mrs Murray. One of the causes of action related to comments made by third parties that were posted on the Facebook page. The cause of action could only succeed if (among other things) Mr Murray was found to be a publisher of those postings. Mr Murray maintained that, as a mere host of a Facebook page, he could not, at law, be the publisher of statements that he did not author. Mr. Murray applied to strike out this cause of action (along with others with which this post is not concerned).

The issues to be determined were these:

1. What is the correct legal test  for determining whether the host of a Facebook page is the publisher of statements posted on it by other users.

2. Whether, on the facts as pleaded and the non-contentious evidence that was before the Court  Mr Wishart had a tenable case in respect of Mr Murray’s ability as the publisher of comments posted by others on the Facebook page.

The Role Played by Mr Murray

The Court first considered Mr. Murray’s role and the creation of the Facebook page. Mr. Murray outlined the position in his affidavit in this way:

4. While I created the Facebook page, the site is not mine as such. Facebook offers users the ability to create pages, but retains ownership of the service base and ultimate control over the contents. Content on these pages is published using Facebook processes.

5. Comments can be posted on Facebook pages by other Facebook users. The creator of any individual Facebook page is unable to exercise meaningful editorial control over comments before they are posted. That is, there is no function on Facebook by which a site creator can vet comments before they are published.

6. It is correct, however, that a creator of a Facebook page has some control over comments published on the page as he/she can, once aware of comments published, retrospectively remove individual comments and block specific Facebook users to prevent them from publishing further comments.
7. It should be noted, howeve, that a block on a user functions only in respect of the relevant Facebook account. It cannot prevent the relevant individual from establishing a new Facebook account and post further comments.

8. Contrary to the plaintiff’s allegations I did at no point encourage, invite or consent to, abusive, threatening or defamatory comments being posted on the site and I did take steps to moderate any such comments that I became aware of.

9. The information section included my Twitter account to allow people to contact me. Once it became apparent that some comments posted were abusive I posted comments on the site myself asking that viewers report such comments to me via the Twitter account so that I could block the relevant users. I received around ten reports that way and acted on all of them.

10. I also regularly visited the site, read comments published on it and blocked users who posted abusive or clearly defamatory comments. All in all, I banned 50 users from the page so as to moderate abusive comments.

11. The site attracted some 250,000 in total, which was far more than I ever expected. As a result, it was increasingly difficult to review them all and remove all potentially abusive or defamatory comments. Facebook also uses an auto-update function. This means that the site is constantly updated with new comments while you view it, which refreshes the screen in a way that makes it very time consuming and difficult to keep track of existing comments when they are so frequently being supplemented. Given the number of comments and the speed with which they were posted, this made it slow and difficult to review historic comments and block relevant users.

12. I finally took the site off line on or around 13 August 2011

In a further affidavit Mr. Murray acknowledged that he had blocked Mr. Wishart’s ability to post comments on the site and explained it in this way:

However the purpose of doing this was not to prevent Mr Wishart from telling his side of the story. His comments, and those of some of his supporters generated a significant number of responses, including some abusive and inappropriate comments. Once it became apparent to me that this occurred I blocked Mr Wishart and a small number of his vocal supporters as a way to discourage misuse of the page. To keep the debate as balanced as possible I posted links to pages setting out Mr Wishart’s version of events (see for example p36 of exhibit A5 to Mr Wishart’s affidavit in support of his statement of claim dated 28 March 2012).

At para 24 of his 30 May 2012 affidavit Mr Wishart alleges that he alerted me to alleged inaccuracies on the Facebook page at a time when I had fewer than 200 people registered on the page. I am uncertain as to what Mr Wishart means by “registered”. I do, however, have no recollection of Mr Wishart contacting me about any inaccuracies. In any event, I do not believe that any statement of which I am the author is defamatory of Mr Wishart. I also blocked any users who posted abusive or otherwise inappropriate comments as soon as possible after becoming aware of such comments having been posted.

What is the Test to Determine Whether the Facebook Host is Publisher of Other Users” Statements

The Judge stated the general principle that a person who participates in or contributes to the publication of another person’s defamatory statement is, prima facie, liable as a publisher, subject to the defence of innocent dissemination and which was stated in the case of Emmens v Pottle (1885) 16 QB 170. However in that case – which dealt with the sale of a newspaper that contained libellous material – the defendants did not know that the paper contained a libel. They were unaware of the content of the medium that they were disseminating. Lord Esher in Emmens made the following remark which Courtney J considered significant.

I am not prepared to say that it would be sufficient for them to show that they did not know of the particular libel … Taking the view of the jury to be right, that the defendants did not know that the paper was likely to contain a libel, and what’s more, that they ought not to have known it, having used reasonable care – the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel.

In this statement the issue becomes clear. Publication is one thing and innocent dissemination may be entirely another. But can publication take place without knowledge of the content OR of that fact that it has been made available? Given that defamation is a strict liability tort the answer would appear plain. But the new technology introduces a factual matrix which may differ from those conceived in the print paradigm , and which require examination. It is for this reason that Courtney J focussed upon Mr Murray’s statements about how the Facebook page worked.

In essence the Judge reasoned by analogy from earlier cases. After an extensive review and discussion of relevant authority, Courtney J considered that the notice board analogy is apt in considering publication via Facebook. She found that the host of a Facebook page establishes the digital equivalent of a notice board and has the power to control content by deleting postings and to block users.

She held that hosts of such pages will be regarded as publishers of postings made by anonymous users if,

1. They know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it (a request by the person affected is not necessary), and

2. Where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.

Thus the contention that Murray was the publisher of the defamatory statements was tenable.

Is this a different outcome to the well established distinction that arose between moderated and unmoderated bulletin boards in the classic cases of Stratton Oakmount Inc v Prodigy Services Co (1995 WL 323710 (NY Sup Ct 1995)) and Cubby Inc v Compuserve Inc (776 F Supp 135 (SD NY 1991))?  In Cubby the ISP Compuserve provided an online information service which allowed subscribers access to electronic bulletin boards, interactive online conferences and topical databases.

Management of these fora was contracted out to a third party which had the power to review, delete, edit and generally control content in accordance with editorial standards established by the defendant. The manager had, in turn, engaged an independent contractor to provide a daily newsletter.

Compuserve successfully resisted a defamation action based on statements made in the newsletter on the basis that it had no knowledge of the statements and was a distributor only, rather than a publisher. The Court accepted that the defendant had no greater editorial control over what was published in the newsletter than any public library or bookstore and was the “functional equivalent” of a traditional news vendor.

Courtney J, in considering Cubby, observed that the holding was inconsistent with Emmens v Pottle which held that a library or a bookstore could be a publisher, but could have recourse to the innocent dissemination defence. Another factor was that the reasoning on Cubby was based on the constitutional guarantees of freedom of speech and the press as precluding strict liability for publication. Courtney J concluded:

This decision does not, therefore, assist in identifying a test that might fit into the existing parameters of UK and New Zealand common law.

Courtney J also discussed Stratton Oakmount. In that case the factual matrix differed from that of Cubby in an important respect in that the defendant Prodigy moderated and exercised a different extent of control over the content that appeared on its bulletin boards.

The facts were that Prodigy, the defendant, maintained a bulletin board service and had a company policy that the general content of the bulletin board would reflect family values. It developed content guidelines and removed material that it considered unacceptable. These controls were found to put Prodigy in a significantly different situation from the defendant in Cubby and resulted in Prodigy being a publisher. Interestingly, the issue of knowledge does not seem to have been a factor in the decision and the case seems to have proceeded on the basis that Prodigy did not have actual knowledge of the postings that were the subject of the action. It was the decision to assume a level of editorial control that was critical. The Court in Stratton Oakmount observed:

By actively utilising technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and “bad taste”, for example, PRODIGY is clearly making decisions as to content … And such decisions constitute editorial control. If such control is not complete and is enforced both as early as the notes arrive and as late as the complaint is made, does not minimise or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role in determining what is proper for its members to post and read on its bulletin boards. Based on the foregoing, this Court is compelled to conclude that for the purposes of Plaintiffs’ claims in this action, PRODIGY is a publisher rather than a distributor …
It is PRODIGY’s own policies, technology and staffing decisions which have altered the scenario and mandated the finding that it is a publisher. PRODIGY’s conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice.

However, a consequence of this approach was that it would be safer for ISP’s or content providers to avoid any suggestion of editoral control. The Court in Stratton Oakmount rejected this as a serious risk on the basis that it “incorrectly presumes that the market will refuse to compensate a network for its increased control and the resulting increased exposure”. Nevertheless, the difficulties faced by website hosts controlling huge volumes of postings, led to legislation in the US (Section 230 Communications Decency Act 1996) which protects interactive computer services in relation to the publication of information by third parties.

Thus the Courts in the United States had adopted an “editorial control” test, akin to that exercised by newspaper proprietors. A different approach was suggested by Cynthia Counts and Amanda Martin in an article entitled “Libel in Cyberspace: A framework for addressing liability in jurisdiction issues in this new frontier” (1996) 50 Alb L. Review 1083. They referred to two pre-Internet cases from the United States – Heller v Bianco (111 Cap App 2d 424 (1952)) and Tacket v General Motors (836 F 2d 1042 (7th Cir 1987)) These have been referred to as “graffiti cases” arising from their facts.

In Heller the Court of Appeal of California held that the proprietors of a tavern were liable for the publication of a defamatory statement inscribed on the men’s bathroom wall after the bar-tender was told of it and failed to remove it. The knowledge that was regarded as sufficient was the knowledge of the barman, attributed to the proprietors. However, the issue of liability was determined upon the basis of a breach of a duty. This approach is not permitted in New Zealand (see Bell-Booth Group v AG [1989] 3 NZLR 148)

Tacket concerned a sign affixed outside a motor vehicle plant. The Judge cited from both Hellar and distinguished it on the basis of the “steep discount” that readers tend to apply to statements on restroom walls and the cost of frequent re-paintings. He went on to say:

A person is responsible f or statements he makes or adopts, so the question is whether a reader may infer adoption from the presence of the statement. That inference may be unreasonable for a bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls of a manufacturing plant over which supervisory personnel exercise greater supervision and control. The costs of vigilance are small (most will be incurred anyway) and the benefits potentially large (because employees may attribute the statements to the employer more readily than patrons attribute graffiti to barkeeps).

Given the actual knowledge on the part of the defendants  it seems unlikely that liability based on assumption of responsibility could have been established without it.

The approach adopted by Counts and Martin in their Law Review article was that applying these cases by analogy, knowledge of defamatory postings on a website would be a pre-requisite for liability as a publisher. They said:

In Hellar and Tacket courts considered knowledge by the defendants and the defendants’ allowance of the statement to remain, to be critical. In Scott the Court added the requirement that for imposition of liability to be proper, the defendant must somehow invite the public to read the allegedly libellous statement.
Applying these principles to cyberspace publishing would result in potential liability if the sysop [systems operator] were aware of an allegedly libellous posting and undertook some action to ratify the communication. Conversely, these principles show that a sysop’s cyberspace activity would not result in potential liability if he does not know of the posting or did not take any action to ratify the communication.

In its 1999 report “Electronic Commerce Part 2”. The Law Commission recommended a test that required actual knowledge based on the so-called “graffiti principle” derived from a line of US cases and ejected as unfair and not feasible an alternative test based on the extent of editorial control. It was significantly influenced by the risks that flowed from the approach taken in Stratton Oakmont v Prodigy and considered that the “degree of editorial control approach” was undesirable because it would discourage screening for offensive material and such a test was not sufficiently precise to provide a predictable criteria on which ISPs could base their practices.

However, what has happened in England is that the law has developed to a position consistent with the approach in Emmens v Pottle, although that development has not been without controversy.

The line of cases referred to by Courtney J starts with the well-known case of Godfrey v Demon Internet [2001] QB 201 and Bunt v Tilley [2006] EWHC 407 (QB), both of which concern the liability of ISPs. What should be observed is that in fact Bunt v Tilley mitigates the somewhat rigorous position adopted by Morland J in Godfrey. Secondly, as Courtney J observed, the position of an ISP is quite different from that of a Facebook page host. However she considered the decisions are significant in the development of the law as it stands in relation to website hosts. It is encouraging to see the recognition by the Judge of the difference between the various types of activity on the Internet, rather than attempt to consider the matter as an overarching set of principles applicable to the Internet in general.

In Godfrey the defendant internet service provider offered a “Usenet” facility which allowed subscribers to access bulletin boards from the internet service provider’s news server. Demon was notified of a defamatory posting and asked to remove it. It could have done so immediately but did not. The posting remained on the news server for a further 10 days or so until it expired.

Moreland J rejected Demon’s argument that it was merely the owner of an electronic device through which postings were transmitted and not to be regarded as a publisher. He allowed the application to strike out the defence that the defendant was not a publisher. The claim only applied to that period of time after notice had been given and the Judge noted that the defendant had an editorial function:

I do not accept [the] argument that the defendant was merely the owner of an electronic device through which postings were transmitted. The defendants chose to store “soc.culture.thai” postings within its computers. Such postings could be accessed on that news group. The defendant couild obliterate and indeed did so about a fortnight after the receipt.

Then he went on to make a more generalised statement about the common law position regarding publication, suggesting that Demon would have been a publisher without knowledge of the defamatory statement:

At common law liability for the publication of defamatory material was strict. There was still publication if the publisher was ignorant of the defamatory material within the document. Once publication was established the publisher was guilty of publishing the libel unless he could establish, and the onus was upon him, that he was an innocent disseminator.

That general comment caused a considerable amount of concern within the internet community, although it should be observed that Godfrey was a case involving an interlocutory application to strike out a defence and did not address the substance of the claim (which was later settled). It dealt with a preliminary albeit necessary element of the tort of defamation.

The decision in Bunt v Tilley took a different approach, perhaps bringing into play a little progress and an understanding of the way in which information flows take place on the Internet. Bunt v Tilley was not concerned with material that was hosted by an ISP but with content of which the ISP was a carrier and in respect of which the ISP played a passive role. Eady J made the observation, referring to Emmens v Pottle :

….for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.

I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence … There a defence is needed because the person is regarded as having “published”. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers; thus they do not need a defence.

Eady J took this approach forward in two further cases that he decided. In Metropolitan International Schools Ltd v Designtechnica Corporation ([2009] EWHC 1765 (QB), [2011] 1 WLR 1743) he considered the cases of Google’s liability for the automatic function that was provided by its search engine of providing “snippets” from other websites in response to search enquiries by users. Eady J held Google’s function as a search engine, with no human input into the selection of snippets shown, meant that it could not be regarded as a publisher of them. The automatic process together with the lack of human or editorial control seemed determinative. But the judge went further. He considered that, even after notification of defamatory material, Google was still not a publisher because of its lack of control over future searches that might continue to throw up offending material.

This approach was continued in the case of Tamiz v Google [2012] EWHC 449(QB) although this case did not deal with search results but an entirely different utility offered by Google that it made available on the Internet. The service offered was called Blogger. It allowed any Internet user to create an independent blog. Courtney J observed that it was similar to the service offered by Facebook by which people could create and control their own Facebook page. As a starting point I agree with the Judge, but is is there that the similarity end, for much depends upon the way in which a user configures a blog or a Facebook page. Furthermore, there is a difference between a service provider and the host of a Facebook page. The reality of the matter is that the real host of the page is Facebook and the creator of the Facebook page uses Facebook’s hosting facilities.

In Tamiz, Eady J held that in its role as a platform provider Google was entirely passive. It had a policy of not removing offending material even when notified, but merely passing the complaint onto the blogger concerned. Although Eady J made no reference to the graffiti principle established in the US, he nevertheless likened Google’s position to that of the owner of a wall that had been graffitied in that, although the owner could have it painted over, its failure to do so did not necessarily make it a publisher.

Tamiz went on appeal to the English Court of Appeal and the developing principles in the  line of cases developed by Eady J  mitigating the strictness of defamation law for Internet hosts hit a “speed bump”.  The Court held that, although Eady J’s conclusion in Bunt v Tilley that an ISP was not a publisher was correct in the circumstances of that case, Google could not be regarded as a purely passive communicator of information in the case of Tamiz.

The Court of Appeal observed as follows:

[23] … I respectfully differ from Eady J’s view that the present case is so closely analogous to Bunt v Tilley as to call for the same conclusion. In my view the Judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google in relation to continued publication of the comments in issue.
[24] By the Blogger service Google Inc provides a platform for blogs, together with the design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its choice and it can readily remove or block access to any blog that does not comply with those terms … As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

[25] By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge or, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article, nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed …

[26] I am also very doubtful about the argument that Google Inc’s role as that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory: Emmens v Pottle (1885) 16 QBD 354, 357-358; Vizetelli v Muddie’s Select Library Ltd [1990] 2 QB 170, 177-180; Bottomley v S W Woolworth & Co Ltd (1932) 48 TLR 521. There are differences in the reasoning in support of that conclusion but the conclusion itself is clear enough. The principle operated in Bottomley to absolve Woolworth from liability for publication of a defamatory attack in a consignment of remaindered American magazines that it distributed; the company did not check every magazine for defamatory content, there was nothing in the nature of the individual magazine that should have led it to suppose that the magazine contained a libel and it had not been negligent in failing to carry out a periodical examination of specimen magazines. Since it cannot be said that Google Inc either knew or ought reasonably to have known of the defamatory comments prior to notification of the appellant’s complaint, that line of authority tells against viewing Google Inc as a secondaary publisher prior to such notification. Moreover, even if it wer to be so regarded, it would have an unassailable defence during that period under s 1 of the 1996 Act considered below

The Court then referred to the decision of Judge Parkes QC in Davison v Habeeb [2011] EWHC 3031 (QB) In that case Google was sued in respect of defamatory statements posted on a blog hosted by Google itself. The Judge distinguished Bunt v Tilley, although the distinction would be obvious because Google, in posting statements on a blog would fill the role of content provider, whereas Bunt v Tilley was concerned not with a content provider but and ISP – a content carrier, demonstrating the importance of distinguishing between the nature of the services provided and the protocols used on the Internet. That point was recognised by Judge Parkes QC

Blogger.com, by contrast, is not simply a facilitator, or at least not in the same way as the ISPs. It might be seen as analogous to a giant noticeboard which is in the fifth defendant’s control, in the sense that the fifth defendant provides the noticeboard for users to post their notices on, and it can take the notices down (like the club secretary in Byrne v Deane) if they are pointed out to it. However, pending notification it cannot have the slightest familiarity with the notices posted, because the noticeboard contains such a vast and constantly growing volume of material. On that analogy, it ought not to be viewed as a publisher until (at the earliest) it has been notified that it is carrying defamatory material so that, by not taking it down, it can fairly be taken to have consented to and participated in publication by the primary publisher. The alternative is to say that, like in Demon Internet in the Godfrey case, it chose to host material which turned out to be defamatory and which it was open to anyone to download so that at common law it was prima facie liable for publication of the material, subject to proof that it lacked the necessary mental state.

Perhaps the distinction demonstrates the fact that not all of the services offered by Google may comfortably fall under a generalised “Google” rule. However, Davison is helpful because it addresses the nature of blog publication, and the circumstances under which liability may attach.

In Tamiz, Google could not be considered a passive provider. Richards LJ picked up on Judge Parkes QC’s approach in Davison, observing as follows:

[33] … I have to say that I find the noticeboard analogy far more apposite and useful than the graffiti analogy. The provision of a platform for the blogs is equivalent to the provision of a noticeboard; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the noticeboard and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the noticeboard. Most importantly, it makes the noticeboard available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms.
[34] … Those features bring the case in my view within the scope of the reasoning in Byrne v Deane. Thus, if Google Inc allows defamatory material to remain on a Bloggerblog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for the continued presence of that material on the blog and thereby to have become a publisher of the material. Mr White QC submitted that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane makes such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint. Those are certainly matters fore argument but they are not decisive in Google Inc’s favour at this stage of proceedings where we are concerned only with whether the appellant has an arguable case against it as a publisher of the comment in issue.

Thus the creation of a blog on the Blogger platform is not a passive activity, according to Courtney J. As far as the provider of content is concerned that is clear. According to Courtney J, although Tamiz dealt with Google’s liability it is implicit that parties who actually create and control the content of the blogs are also to be regarded as publishers of comments posted on them once they know or ought to know of them. Courtney J also made reference to the Australian case of Trkulja v Google [2012] VSC 533 where it was held that the proposition that an ISP cannot be a publisher was rejected because it would cut across the principles that have formed the basis for liability in the news agent/library type cases, and the cases in which the failure by a person with the power to remove defamatory material gives rise to an inference of consent to the publication.

Trkulja dealt with aspects of the Google search engine. One aspect dealt with the provision of images as a search result and some unflattering images that suggested that Mr. Trkulja had associations with the Melbourne criminal fraternity. The other aspect dealt with search results that led to further information suggesting criminal associations on the part of Mr Trkulja. Now the reality behind Trkulja is that it deals with an aspect of the principal service offered by Google and that is its search engine. In providing this service Google is not an ISP. In fact, Google in fulfilling its role as a search engine a form of content provider, although direct human intervention with the results of a search is not present. Search results derive from the algorithms created and employed by the Google programmers. Beach J dealt with the publication aspect of a Google search as follows:

In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.

What then about knowledge? Does the “publication test” require actual knowledge of the defamatory statement? The cases discussed so far suggest otherwise and certainly such a proposition would be inconsistent with Emmens v Pottle. The “notice board” cases assisted Courtney J in her approach.

The starting point is the case of Byrne v Deane ([1937] 1 KB 818 (CA)). This case concerned an anonymous notice that was posted on the noticeboard of a gold club. The club rules prohibited notices being posted without the secretary’s consent. The defendants had seen the notice but did not remove it. The Court of Appeal held that those with control over the noticeboard were publishers of material posted on it if it could be inferred that they had taken responsibility for it. They had the power to remove the notice and failed to do so.

Greene LJ observed:

It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me to be this: having regard to all of the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it has been put?

Byrne v Deane was followed by the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council & Anor. ((1991) Aust Torts Reports 69). This case concerned defamatory posters glued to bus shelters under the defendants’ control. The defendant had actual knowledge of the posters and had been requested to remove them. Courtney J considered that Urbanchich held that there should be proof of facts from which the fact-finder could infer that the defendant had taken responsibility for, or ratified, the continued publication of the statements. The defendant in Urbanchich did in fact have actual knowledge and was asked to remove the material but treating these facts as prerequisites for the defendant to be treated as a publisher does not accurately reflect the reasons for the decision.

Byrne and Urbancich were followed in New Zealand in Sadiq v Baycorp (New Zealand) Ltd. (HC Auckland CIV-2007-404-6421, 31 March 2008). The plaintiff complained of defamatory statements regarding his creditworthiness on a debt collector’s website. The material had been placed on the website by the previous owner of the website. Doogue AJ considered that the defendant in that case had to know of the material for the inference to be drawn that it had taken responsibility. He made the following comment about publication:

The key to whether Byrne can be extrapolated to this case, essentially depends on whether inferences can possibly be drawn that the first defendant possessed knowledge of the defamatory statement and the ability to bring about its cessation, leading to a final inference that failure to do so indicates that the first defendant in some way allies itself with the statement …
… it would not seem to be logically possible to conclude that a defendant was complicit in the publication, in the absence of knowledge that the publication had actually occurred. Where the facts are simple – the defendants could see with their own eyes that the offending notice has been attached to the wall as in Byrne – the inference may readily arise. The position, however, may be different in a case where, as here, the defendants’ actual knowledge that there had been a publication is moot.
Publication in this case would have occurred when subscribers to the website accessed Mr Sadiq’s file … It is not sufficient for the plaintiff to invoke a vague concept such as that the defendant took over the debt collection files of its predecessor, which predecessor had been responsible for actual publication. There would need to be evidence that some human agent of the defendant adverted to the presence of the statement on the website and nonetheless took no steps for its removal.

This seems to equate at least with an awareness of content existence athough not necessarily the content of the content (if I may put it that way) In resolving the authorities Courtney J said:

[L]imiting the circumstances in which a defendant is to be viewed as a publisher of other’s statements to those in which the defendant had actual knowledge is not consistent with Emmens v Pottle; under the general principle I respectfully think that the defendant in Sadiq ought to have been viewed, prima facie, as a publisher, with the real issue being whether it either knew or ought to have known that the publication contained a defamatory statement for the purposes of the innocent dissemination defence.

Courtney J’s Conclusion

Courtney J considered that the analogy of the notice board applied to considering whether the host of a Facebook page is a publisher. The host of such a page may establish what is essentially a noticeboard which may be public and to which anyone may post comments or which may be private and restricted to posting from a specified group. In either case the host may control content and delete postings and may also block users. Furthermore she held that those who host Facebook pages are not passive instruments (as was the case in Bunt v Tilley which ,as noted, dealt not with content providers but content carriers) or mere conduits of content on the page. She held that there are two circumstances where they will be publishers of content.

1.If they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary.

2.Where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.

So was it possible to argue that Mr Murray was a publisher of the anonymous comments. The Judge’s starting point was Mr Murray’s affidavit. He couldn’t control the posting of comments (other than blocking access to individuals) but he had considerable control over whether or not they remained. In his affidavit it was clear that he not only could, but did take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate. He also blocked particular individuals whose views he considered unacceptable. Mr Murray could not, on the available evidence, be viewed as a passive instrument. The auto-update facility used by Facebook presented Mr Murray with some problems but it did not prevent him from culling abuse or inappropriate postings – it only slowed down the process.

The Judge found two other significant aspects. The first was that Mr Murray blocked access to the page by Mr Wishart and his supporters which had the effect of making it difficult for Mr Wishart to identify defamatory content. The second was that Mr Wishart had warned Mr Murray bout defamatory positings. ALthough this fact was in dispute it appears that there was a level of dialogue ebtween Mr Murray and Mr Wishart. Depending upon the ultimate factual finding that issue might also be relevant to whether Mr Murray should have known that defamatory postings were being made.

Thus, within the context of the strike out application, Courtney J was satisfied that the pleading that Mr Murray was a publisher of the anonymous statements was tenable.

Comments

The decision of Courtney J is important for a number of reasons.

1. In approaching the application of existing law to the new information paradigm one of the important tools of analysis is whether or not an existing rule can be applied if not directly, then by analogy. If that approach fails or provides an inconclusive outcome, one must then go behind the rule and attempt to ascertain the policy reasons for the rule in attempting to locate the problem within existing policy and the set of rules that surround it. Courtney J’s decision is a clear example of the analogy approach. She adopts a conventional legal position, disposing of the various alternative arguments or dispensing with those that do not add up. Rather than deal with the matter on the basis of authority that derives from the digital paradigm itself, she reasons by analogy, using authorities decided in the pre-digital paradigm and applies the principle accordingly. Her approach cannot be criticised. It is a near-perfect example of the way in which the common law allows for development and adaptation.

2. The second matter of importance is the way in which Courtney J reviewed the various lines of cases on publication, and importantly, her analysis of the Internet cases. This case provides a useful coverage of the various cases that have been decided in this area and synthesises the threads of principle that have developed. Although the American line of Cubby and Stratton Oakmount do not apply in New Zealand for a number of reasons, the discussion undertaken by the Judge on these and on other cases points to the reasons why. By the same token, both those cases suggest some overarching approaches and helpful tests that can be considered. The function of moderating comment is present in Wishart and plays a role.

However, the authorities sometimes cover aspects of Internet defamation rather than presenting a “bright line” rule applicable to all. For example the cases of Godfrey and Bunt v Tilley apply to ISPs who host material on their servers. There are substantial differences between an ISP – a provider of Internet services – and the individual host of a Facebook page. In that respect the Google cases seem to represent a halfway house between ISP-type providers on the one hand and services built on the Internet backbone such as those provided by Google on the other. The Trkulja case considers Google as publisher by way of an information provider – providing search results by way of human created algorithms. Given the findings in that case, one wonders whether the case of Metropolitan International Schools Ltd v Designtechnica Corporation (the snippets case) would be decided in the same way in Australia. As matters stand at present its seems to me that outcomes will differ depending upon the position occupied by a potential defendant in the Internet framework.

3. The third point is that, like other cases in this area such as Godfrey and Gutnick this was an interlocutory or procedural matter. It had to do with whether or not, given certain extant facts, it was arguable that Murray was a publisher. The case did not decide the point as a factual matter. This a significant pouint because it means that although it is more likely than not that later cases will be decided in a similar way, the developments of the law in this area must be incremental and must depend upon individual factual circumstances. The variety of circumstances that present themselves in the new communications technologies that are present means that a variety of different fact situations will need to be considered. What this case decides is that in the circumstances before the Court Mr Murray was not only a publisher of his own material – and that does not seem to be at issue – but that he was responsible for the content that was published on the Facebook page that he hosted. It was not necessary for him to know the quality of the content that was posted in the same way that the bookseller or the newspaper seller does not need to know the quality of the content in the book or newspaper, but only that there is content present. Mr Murray did go a step further and vetted the third-party content and took some of it down. Thus the issue went beyond awareness of mere content and covered quality of content.

I now want to step  away from the legal analysis and looks at the nature of the Facebook page and its purposes and raison d’etre. What I argue is that by an analysis of the purpose of the technology, one arrives at the same result.

The Law Commission in its Issues Paper  “News Media meets New Media” in December 2011 made the following observation:

In essence, the web has placed the tools of publishing in the hands of every individual with access to it. And, just as critically, platforms such as Facebook, which now boasts over 700 million users worldwide, allow those individual voices to connect and aggregate, creating virtual global “communities of interest”. Thanks to the disruptive nature of the web, these cyber crowds are capable of wielding levels of power and influence hitherto reserved for the mass media and those with access to traditional sources of economic and political power.

The medium in which this great proliferation of publishing is taking place possesses a set of quite unique characteristics which together help explain the game-changing nature of this technology. These include the following:

  • publication on the internet is both instantaneous and global;
  • once published, digital content is virtually un-erasable;
  • users can publish and participate in online activities without revealing their real identities;
  • there is an almost infinite capacity to store data of every kind, from the millions of “tweets” broadcast each day, to the world’s largest libraries;
  • the development of powerful search engines and web browsers allows instant, and perpetual, retrieval of this data, the vast bulk of which can be accessed freely;
  • the decentralised architecture of the internet and the speed and frequency with which data is saved, copied, cross-referenced, routed and re-routed around the globe makes the system highly resistant to attempts to control how users behave or to interrupt or prevent the uploading and downloading of content from the vast network of servers and computers which comprise the web.

The properties of the new communications technologies enabled by the Internet and especially by the web are directed to just that – communication. In addition the Internet has enhanced communication between users by virtue of the quality of permissionless innovation which allows entrepreneurs to “bolt on” a utility or an application and “see how it flies”. The early internet community centres such as Usenet news groups gave way, with the introduction  of Web 2.0, to interactive websites and the rise of Social Media of which Facebook was one.

The very nature of social media is to enable people to communicate with one another, and although initially this was grounded in the continuation of “real-world” associations in cyberspace, the reality is that social media often allow for “cyber-relationships” to develop between people who have never met. More recently social networks have been seen as an opportunity for commercial entitles to market products and operate as another form of web presence for the purposes of brand identification, customer feedback and interaction.

Social media sites allow for a number of differing forms of communication between the host (the person who creates the site) and those who visit the site or wish to maintain an association with it (friends is the term on Facebook). The ability to post messages, make comments, post photos, mark and forward photos, for friends of friends to participate and many many more are all possible in the realm of social media.

But the most fundamental purpose of social media is the communication of information within a group. The size of the group may be very small or apocalyptically large. The purpose remains the same – the communication of information. And within the legal context that amounts to publication – making information available to a wider group. Within the context of defamation, the size of the group may be relevant for certain purposes, but this does not detract from the overall purpose of social media. In that respect, there is little difficulty in concluding that the host of a social media site or a Facebook page is a publisher of information that he or she posts there.

A host may allow others to comment or put up posts. The extent of the ability of others to post material depends upon the way in which the host has configured the site. For example, this blog is set up so that comments on posts are referred to me before I will allow them to be posted. This is a good thing because most of the comments that I receive are spam and marketing material that would clog this site and reduce its usefulness. And, of course, by allowing a comment to become public and available to readers, I am a publisher in the most absolute sense of the word. Not only do I allow the content to go onto the site, but I also exercise an editorial power, and evaluate the content of the comment.

This is part and parcel of the overall communicative purpose of a Facebook page or any other social media. Communication necessarily involved publication to the communicants, and, in the case of a Facebook page, that may be to anyone who accesses the page. If the host of the page chooses to allow comments to be posted and does not undertake editorial or moderating activity, what has happened is that he or she has provided a means by which people may comment, and in this respect Justice Courtney’s notice board analogy is apt. But even without the analogy the host, by providing the means by which others can post their views, takes on responsibility as publisher. This is not a case of a neutral carrier, as was the case of the ISP in Bunt v Tilley. The Facebook page is specifically created for a communicative purpose. The whole function to is communicate and to enable others to do so. Knowledge or awareness of the precise nature of the content is not necessary. In the case of Wishart, the Facebook page was put up for the specific purpose of protesting against the publication of Mr. Wishart’s books and to encourage people not to buy it. It was by no means a “passive” site. Its purpose was to communicate Mr. Murray’s point of view and that of others who wished to be associated with it.

Thus, if one looks at a Facebook page from a purposive perspective, one reaches the same point as did Courtney J when she used the tools of conventional legal analysis.

Note:

The issue of on-line defamation is not an easy one. The principles of defamation law – and especially libel law [including the use of seditious libel to silence or tio intimidate protest] – developed within the context of the print paradigm. For example, William Prynne faced proceedings for seditious libel arising from the publication of a book that he wrote entitled Historiomastix in 1632 and for which he was tried before Star Chamber in 1634. The history if libel has been largely associated with printed content and concepts such as publication and dissemination have developed within the properties or qualities of that particular information technology. As I have argued elsewhere, digital communications technologies have entirely different or enhanced properties or qualities. It is suggested that as the law continues to develop in this area, these properties or qualities will come into play.

In a future post I intend to revisit the area of defamation law and will deal with the issue of whether posting a link to an article containing defematory content is publication. Watch this space

The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm

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.

  

 

Social Media and the Judiciary

Introduction

Twitter Justice
Twitter Justice
From http://www.londonlovesbusiness.com/business-in-london/law/londons-20-most-influential-tweeters-law/1118.article

Should Judges involve themselves with social media, maintain or contribute to blogs, have Twitter accounts or otherwise utilise the numerous communication platforms offered on the Internet? This post will consider some of the issues surrounding judicial engagement with social media and particularly judicial blogging

In a Twitter exchange @cearta posed the question “should judges be warned off blogging”, referring to Lucy Reed’s post on her Pink Tape blog which was more widely published in the Guardian, reporting that guidance has been issued to all judicial office holders warning them off blogging. (For the full text see the end of this post) The answer “no” came back from @MauriceDockrell and @cearta asked “why?” @John_gilhooley joined the debate asking “why confine an understanding and interpretation of the law solely to written judgements? We don’t ban …judges from addressing law societies in(sic) universities, why ban the written and not the oral.” @MauriceDockrell replied “Because in front of law societies etc judges can speak ex tempore whereas in writing can be held to account…look at the difficulty Carney J got into a few years ago – blogs etc would cause controversy.”

I must confess that I am unfamiliar with Carney J’s difficulties but the exchange made some interesting points about judges and “out of court” discussions in a public forum – because blogs, tweets and other social media platforms are certainly public.

The Issues

The debate has arisen as a result of the guidance that has been issued to the English judiciary, a few of whom maintain blogs. The story broke in a blog run by an English Magistrate. It spread quickly through the English blawgosphere – see for example Legal Cheek and Obiter J. An important paragraph of the guidance reads as follows:

“Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”

 Adam Wagner at the UK Human Rights Blog can be relied upon for a thoughtful analysis although it is not hard to anticipate where he might stand on the issue.

“The main problem here is the starting point. It appears that someone has identified a problem, being the potential (but until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary.”

I think Adam is correct in using the word “potential” because I am unaware of any research suggesting that there is such a problem and that it will lead to the undermining of public confidence in the judiciary. But by the same token it cannot be said that there is an absence of risk that social media engagement by a Judge could go horribly wrong. Some examples from the US appear below. A hasty or badly expressed tweet could have regrettable consequences. At least a blog may be subjected to a more deliberative process with opportunities to review and edit – or to decide not to publish a post at  all. But certainly, given the quality of information persistence that characterises the Internet, the position should be that once published the contents of a tweet, a Facebook comment or blog post cannot be withdrawn.

But risks aside, why shouldn’t Judges blog about aspects of their jobs, professional issues and the like as long as nothing is said that might compromise the appearance of neutrality in a case. Should a Judge be prohibited from blogging about topics associated with the judicial role such as the history of the judicial robes (an aspect of the job unrelated to any suggestion of partiality on a case) or topics unrelated to the law such as the habits of the local sparrows (a different form of twittering), the Albigensian Crusade, the Hundred Years War or the deeper mythological themes underlying Tolkien’s Middle-earth writings? And what possible objection could there be to the Judge who blogs or writes on such subjects being identified as such. One might extend the topics into the professional sphere.  There are many uncontentious areas where a Judge may inform public understanding of the judicial role and that of the Court. As Obiter J puts it

“For my part, I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary.  There is of course the potential for it to do so but that depends on what is published and it is probably wise for the blog owner to retain control over comments placed on the blog by others.”
(The emphasis is mine)

The educational aspects of judicial blogging are emphasised by Adam Wagner:

“But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the starting point in the United States, where the President of the National Judicial College has said this:

“As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice”

Adam closes with the suggestion by Lord Neuberger,the newly appointed President of the UK Supreme Court that the Judiciary should:

“foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”

It cannot be said, however,  that the statement is an endorsement of judicial blogging. But it does clearly call for a better informed debate about the role and activities of the Courts.

Other Jurisdictions

So what is happening elsewhere in the common law world? What guidelines are available that may assist in determining the approach that may be adopted? Certainly most jurisdictions have a set of guidelines for judicial behaviour.

Australia and New Zealand

Australian and New Zealand judicial guidelines recognise the role of the Judge in an open society, and the shift in perception from the earlier position that judges should undergo civic and social isolation upon appointment to one of more open participation and engagement. But the guidelines also emphasise the need for care and restraint in public comment.

Australia

The Australian Institute  of Judicial Administration has published The Guide to Judicial Conduct (2nd ed. 2007). There are no specific provisions about engagement with social media but there is a section about activities outside the Courtroom. The section dealing with Public comment by Judges (5.6) and Participation in Public Debate makes useful reading.

Guideline 5.6.1 states:

5.6.1 Participation in public debate
Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.

Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.

Considerable care should be exercised to avoid using the authority and status of  the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute to public debate on any matter include the following:

      • A judge must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice;
      •  The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause;
      • There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge even in areas apparently unconnected with the original debate; A distinction might be drawn between opinions and comments on matters of law or legal principle, and the expression of opinions or attitudes about issues or persons or causes that might come before the judge;
      • Expressions of views on private occasions must also be considered carefully as they may lead to the perception of bias;
      • Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court;
      • A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate;
      • A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge’s terms.”

The Guidelines prohibit, as might be expected, entering into debate about a decision, even to clarify ambiguity. The decision must speak for itself.

However, Guideline 5.7 deals with contributions to newspapers and periodicals and appearing on the media. These Rules could apply, mutatis mutandis to social media engagement.

Guideline 5.7 reads:

5.7 Writing for newspapers or periodicals; appearing on television or radio
There is no objection to judges writing for legal publications and identifying themselves by their title.

There is no objection to articles in newspapers or non-legal periodicals and other contributions intended to inform the public about the law and about the administration of justice generally but before agreeing to write such an article, it is desirable that the judge should consult with the head of the jurisdiction.

Judges are occasionally asked to take part in radio talk-back or television programs on matters of public interest. Such activities, if they are to take place, are best carried out by or after consultation with the head of the jurisdiction, and should usually be restricted to matters affecting the administration of justice. The matters raised in par 5.6.1 will usually require consideration.

There seems to be no objection in principle to a judge writing in a private capacity on a non-legal subject.”

Thus it seems that there is no objection to involvement in discussion about the law and the administration of justice or in writing about legal topics as long as care is exercised.

New Zealand

The New Zealand Guidelines for Judicial Conduct (June 2011) contain rules on participation in public debate which are not as detailed as those in Australia and read as follows:

“If a matter of public controversy calls for a response from the judiciary or a particular court, it should come from the Chief Justice or head of jurisdiction or with his or her approval. In other cases it may be beneficial to public debate for judges to provide information relating to the administration of justice and the functions of the judiciary. Such participation is desirable but requires care. In particular a judge should avoid political controversy unless the controversy is about judicial function. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by particular organisations or causes. It is important to avoid expressing opinions on matters which may arise in litigation and which may lead to concern about the impartiality of the judge.”

Paragraphs 33 and 34 of the New Zealand Guidelines state:

“The days are past when appointment to the judiciary compelled social and civic isolation. Effective judges are not isolated from the communities they serve. Communities are not well served by judges whose personal development is arrested by judicial appointment. Judges are also entitled to private and civic lives which are not stunted or disadvantaged by office.

On the other hand, a judge’s conduct, both in and out of court, inevitably attracts closer public scrutiny than that of other members of the community. And the standing of the judiciary is adversely affected by conduct which, in someone else, would not excite serious criticism. Judges therefore have to accept some restrictions on conduct and activities as a consequence of appointment. Where the balance should be struck is a matter of reasonable difference of opinion.”

The rules relating to writing and media comment are similar to those in Australia and are covered in paragraphs 58 and 59 of the New Zealand Guidelines which read as follows:

“Articles or interviews which inform the public about the administration of justice generally are not objectionable and indeed may well be beneficial in raising public understanding about judicial function. They carry risks however if the Judge expresses views which may be taken to pre-determine issues which may arise for judicial determination or which cross into areas of political controversy. Publication in legal journals is not objectionable but requires care to avoid expressing firm views on matters which may come before the court for determination.

Participation in radio or television programmes should generally be discussed with the head of jurisdiction before an invitation is accepted.”

The United States of America

The Courts Technology Conference 2011 held at Long Beach had a session about social media and the courts although the discussion was wide ranging and included the use of social media by courts administration.

One of the presentations was by Judge Kevin Burke of Minnesota who blogs for the American Judges Association. His blog started in September 2011 and its purpose  may be found here. Nearly 12 months down the track and Judge Burke is still going strong, his latest post being on August 15 2012.

Judge Burke, together with Judge Steve Leben, David Rottman and Tom Tyler are contributors to the Procedural Fairness Blog. The blog is part of a wider project details of which appear on the Procedural Fairness website. The aim of the project is stated as follows:

“We focus on helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses. In addition, we look at policing, currently the focus of the majority of criminal justice research on procedural fairness, but we retain an emphasis on the courts.

We also seek to bridge the gap between academic research and actual practice. This site is a collaborative effort by judges, researchers, and university professors who share a belief that an emphasis on procedural fairness can make judges and court managers more effective decision makers, improve compliance with court orders, and increase public satisfaction with the court system. Yet we also share a desire to engage with one another—as well as a broader community—to test our ideas. So we provide a forum linking judges and court managers to the academic and research community engaged in the study of procedural fairness.

The Procedural Fairness Blog will offer a forum to discuss current issues and events through posts by founding participants, other staff from the National Center for State Courts, and periodic guest bloggers drawn from the judiciary, court management, and the academy.”

 Justice Judith Lanzinger of the Supreme Court of Ohio maintains a blog entitled Justice Judy. She makes her position very clear in what may be called a “mission statement” stating the scope and purpose of her blog.

“As a former teacher and a judge, I take very seriously my obligation to fulfill the mandate in the Ohio Code of Judicial Conduct, which requires that “A judge should initiate and participate in activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this code” 1.2 (Comment 6).

This blog is a carefully balanced medium for me to fulfill this obligation using the latest information technology. Studies show that today’s young people are the most plugged in generation ever. Blogging offers an opportunity to connect with these young people where they now spend most of their time: Online.

On pages of the Justice Judy blog you will find simple, straightforward explanations of judicial concepts and processes, as well as discussions about current developments in the legal profession and the law.

You will not find political commentary, interpretations of judicial decisions, or anything else that would carry even the remote possibility of violating the other judicial canons, which are in place to ensure that we have an independent, fair and impartial court system.

By allowing comments to be posted, I am able to interact with the public I serve to further the cause of an understandable and accessible judiciary. By moderating the comments, I ensure that the discussion is appropriate and thoughtful. I hope you will become a regular reader and tell me what you think.

– Justice Judy”

However, the downside of social media use by the judiciary may be seen in these examples from a post about Judicial Use of Social Media:

“A Georgia judge recently resigned after that State’s Judicial Qualifications Commission investigated the judge’s Facebook messaging with a defendant appearing in a pending matter before him.

Late last year, a New York judge was reassigned after allegations surfaced that he was updating his Facebook status from the bench and that he once took a picture of his crowded courtroom, posting it on his active, public, Facebook page.

In late 2009, Florida authorities issued a judicial ethics advisory opinion concluding judges cannot “friend” lawyers on social network websites like Facebook or MySpace. But South Carolina’s judicial ethics advisory committee concluded a judge could “friend” law enforcement officers and court employees if they were not discussing anything related to the judge’s position.

The North Carolina Judicial Standards Commission concluded in 2009 that a judge should not utilize a listserv to obtain advice on a legal topic that was applicable to a proceeding before that judge.”

In an article (or possibly a blog post) published on the National Association of State Judicial Educators website Justice Daniel J Crothers makes the following observations about the American approach:

 “Can judges and court personnel make blog postings or participate in listservs?

The general answer to each of these questions is “yes,” but….

A judge’s actions are constrained by the American Bar Association Model Code of Judicial Conduct, derivations of which are in place in most United States jurisdictions. The Code requires, in some instances pertinent to use of social media, that the judge exercise reasonable direction and control over attorneys and staff who report to the judge.

The Code generally allows judges to engage in extra-judicial activities that do not demean the judicial office, that do not cast reasonable doubt on the judge’s impartiality and that do not interfere with the performance of judicial duties. Therefore, judges and court staff, like most other people, can use the internet for lawful purposes, including maintaining and using social networking tools and sites like Twitter, Facebook and MySpace as long as those uses stay clear of courts, court business and matters that frequently appear in the courts.

But the Florida Committee noted, “While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office.”

For example, judges have an obligation under the Code not to lend the prestige of judicial office to advance the private interest of the judge or others, nor to convey or to permit others to convey the impression they are in a special position to influence the judge. On this basis a majority of the Florida Ethics Advisory Committee concluded that a judge would act unethically by “friending” a lawyer on a Facebook page. Florida’s conclusion was based on the Facebook feature that mutual “friends” appear on each other’s page, even with the highest privacy settings invoked. At a minimum, these mutual “friends” are visible to other “friends” of the respective subscriber. Absent use of the highest privacy settings, the judge-lawyer “friend” status is viewable by all internet users.

So too are judges and staff prohibited from participating in improper ex parte communications in a pending or impending matter. This was one of the reasons for the disciplinary investigation of the Georgia judge.”

Justice Crothers concludes with the sage observation:

 Until the law in your state is clarified or until you request a judicial ethics advisory opinion (if you are able), all judges and court staff using social media websites would do well to remember the advice given in the 1980s television show Hill Street Blues by dispatch Sergeant Phil Esterhaus:“Hey, let’s be careful out there…”

The Social Media Today Blog contains some examples of State rules about judicial engagement with social media:

“On June 12, 2012, the Maryland Judicial Ethics Committee published an opinion providing guidance regarding the judiciary’s use of social media. The main point of the decision is that, “a judge must recognize the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct, and, therefore, proceed cautiously.”

The Florida Supreme Court’s Judicial Ethics Advisory Committee’s opinion that prohibited judges from adding lawyers who may appear before them as “Facebook Friends” demonstrated a lack of understanding of social media. If judges can be friends in the real world and join the same social clubs as lawyers who appear before them they should be able to be Facebook Friends. California, New York, Kentucky, Ohio and South Carolina have taken a different position than Florida and their rules appear to generally demonstrate a better understanding of how online relationships are analogous to real world relationships.

The Maryland Judicial Ethics Committee appears to have taken a position that generally follows California, New York, Kentucky, Ohio, and South Carolina. The Maryland Judicial Ethics Committee stated “the mere fact of a social connection does not create a conflict” while referring to online social media connections. The bottom line is that Maryland once again has demonstrated an understanding of how social media intersects with the law.”

A very helpful keynote address by Judge Herbert B Dixon at the ABA Conference in Toronto in 2011 reported by Connie Crosby highlights some of the difficulties and suggests some solutions for lawyers, jurors and judges. (There is also available the wonderful Social Media Revolution video based on Eric Qualmann’s Socialnomics with the inspiring soundtrack “Baba Yetu” composed by Christopher Tin (it is in fact the “Lords Prayer” in Swahili) that Judge Dixon used in his presentation and yes, I have used the same clip myself.)

The CCPIO New Media Survey for 2012  found as part of its survey that most judges agreed that using social media sites in both their personal and professional lives doesn’t necessarily compromise the professional code of conduct. Justice Lanzinger blogs “While students are more than comfortable with social media sites, a new national survey says more judges and courts are using Facebook and Twitter now too.”

A Nature of the Blogosphere

So what does all this tell us? The first thing is, as the New Zealand Guidelines point out, that Judges are a part of society and not aloof from it. Judges are an essential part of a functioning society under the Rule of Law. That said, Judges must keep up with changing trends and developments in society and recognise them.

Herein lies the problem. I have argued elsewhere that new technologies bring about behavioural changes that may influence shifts in values. But new technologies will not change such fundamental values as the importance of a fair trial,  the need for an impartial tribunal or adjudicator and the right to be heard in a cause. These are essential properties of our shared justice system. Furthermore, it is well recognised that the Courts, of the three arms of Government, lack the power of the purse or the sword. Their legitimacy relies on public confidence. Actions by Judges that undermine that confidence, that give a suggestion of partiality, that may even unintentionally appear to give a taste that there is other than a fair system undermine public confidence. By the same token, public confidence may also be undermined by a lack of understanding of the judicial role or the law and how it works. The problem is finding the point of balance, and that is something that Judges do.

The various guidelines for behaviour suggest that there are occasions where judicial engagement outside the Court room may be welcomed but not at the expense of public confidence in the system or the erosion of trust in a judge’s performance of his or her role. That must be the primary guide for judicial engagement with social media and especially the judicial blogger.

A factor the must be taken into account is the nature of the “blogosphere.” Blogs and new media were examined by the New Zealand Law Commission in its report “The News Media Meets New Media”. The focus of the discussion was to consider whether there should be some form of regulatory framework for the blogosphere and when such framework, if any, should be engaged.

The observations of the Law Commission were informative. Irrespective of purpose, blogs are an aspect of a “new media” for information dissemination and bloggers may at times fall into the general category of “citizen journalists.”

In the chapter addressing on-line media the Commission considered blogs under the heading “The Blogoshpere – From Hard News to Gossip”. It observed

“Blogs vary greatly in terms of professionalism, readership and 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. (Para 2.86)

New Zealand has an active blogging community straddling this spectrum. Among the specialist subject bloggers are respected and influential communities of legal and technology bloggers including, for example, barrister and media lawyer Steven Price (Media Law Journal), Victoria University lecturer Dean Knight (Laws 179 Elephants and the Law), Professor Andrew Geddis (Pundit), Mauricio Freitas’ technology blog, Geekzone, and Richard McManus’s seminal blog ReadWriteWeb, to name but a few. (Para 2.87)

Alongside the specialist subject bloggers there is a growing number of individual and collective blog sites whose primary focus could broadly be defined as “news and current affairs.” The blog site Tumeke! publishes rankings of many of New Zealand’s most well-known political and news blogs and since the survey began in 2007 the number of blogs included in the current affairs category has risen from 164 to 203  (Para 2.88)

In contrast with mainstream journalists in the past, bloggers frequently develop strong communities of followers with whom they actively engage. The quality of blog postings on sites like Pundit and Public Address is often matched by the calibre of the commentary they attract. A blogger’s influence is often measured not just by the number of unique viewers the blog site attracts but also by the number of participants and the number of external sites linking into it (Para 2.97)

The blog’s administrator (who is the author of the blog) sets the parameters for user engagement, deciding whether to moderate comments and where to set the boundaries around questions of tone, taste and decency. Standards and the levels of control vary widely: the internet culture’s aversion to censorship is often evident in the lack of moderation. This can sometimes see commentary descend into highly derogatory and abusive exchanges between different commentators. (Para 2.98)

At paras 2.100 – 2.110 the Law Commission examines other social media platforms.

Publication on the internet via a blog bears means “going public” and depending upon the nature of the post and its subject matter the blogger may move from an abstract discussion to commentary upon an issue of public interest or importance. In the blogosphere the line is blurred between mere information and becoming a commentator in the “new media” – akin to writing an op-ed piece for a newspaper. The only difference is that the circulation of the “newspaper” – and therefore the commentary –  is worldwide.

There are other qualities surrounding Internet content that must be taken into account. (For an earlier discussion of Internet qualities see my post “Why Do Jurors Go Online” under the heading “The Internet, Information Technology and Drivers for Change”) I have already referred in this post to the persistence of information and that content on the internet is akin to the “document that does not die”. Other characteristics are those of searchability and retrievability of information – both associated with its persistence. Search engines enable the instant location of information and views expressed in the past may return as fresh as the day they were published – even although those views may have modified over the years. But debate or comment on current content may contain reference to a possibly “previous inconsistent statement”. Another aspect, to which reference has been made, is that blogs are often collaborative, and the Law Commission refers to the commentary that blogs attract. Most blog providers allow the administrator to vet and monitor comments and choose whether to post them or not, but then the debate becomes one of whether or not the administrator is indulging in unnecessary selectivity or even censorship. The blogosphere audience is in the main very wedded to concepts of free, open and vigorous speech as the Law Commission observes.

Given the nature of the Internet, this means that the judicial blogger is heading into an unfamiliar territory. Although judgments are public and are made available on-line, their publication and content are surrounded by a number of conventions, and the judge or judges are aware that the reasons for a decision will be scrutinised by academics, politicians, news media and the public. That all comes with the conventional judicial territory. By writing an opinion on a blog, the judge runs the risk of the same analysis and critique which will be accompanied by a recognition of the role that accompanies the writer rather than the expression of the view that may be contained on the content. The writer, in such a case, becomes more important than the message. Because the blog is authored by a judge, the potential problem for unfavourable comment, vigorous on-line  debate or even discussion in the mainstream media becomes enhanced. These are factors that Judges must take into account if they contemplate venturing into the blogosphere.

Conclusion

Given the issues that have been discussed it may well be that the Senior Judiciary in England are suggesting that judges avoid engagement with blogs and social media precisely because of the risks attending upon such activity. On the other hand there seems to be a view that there should be greater engagement by the Judiciary, especially in the area of education about the judicial role and the Rule of Law. A debate about the issue can only be useful. As ObiterJ suggests “I suspect that this matter may have some distance to run.”

Appendix

In the interests of completeness, the advice from the Senior Judiciary in England reads as follows

Blogging by Judicial Office Holders

Introduction
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.

Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.

Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.

Any queries about this guidance should be directed to [name removed] at Judicial Office – Tel: 0207 [removed] Email: [removed].