“Harm” in the Harmful Digital Communications Act

The recent decision of Justice Matthew Downs about the Harmful Digital Communications Act seems to be misunderstood.  Ben Hill in the NZ Herald went so far as to state that the decision said that  posting intimate images on Facebook met the harm threshold detailed in the act. Far from it.

Some clarification might be helpful. The case involved a prosecution under one of the sections of the Harmful Digital Communications Act. Because of that a couple of basic criminal law propositions applied. First, the burden of proof was on the prosecution. Secondly to obtain a conviction the prosecution had to prove each of the three elements of the charge beyond a reasonable doubt.

A criminal trial can be divided up into two main phases – the prosecution phase and the defence phase. If the prosecution fails to provide any or sufficient evidence of any one of the elements of a charge, the charge may be dismissed.

In the case under appeal that is the point the case reached. Was there evidence of harm – serious emotional distress – suffered by the complainant? The District Court Judge looked at what was available and concluded that although there was evidence of emotional distress, he was not satisfied that it had reached the “serious” point. Because he concluded that there was insufficient evidence to support one of the elements the case was dismissed.

If that evidence had been available – that is evidence where a reasonable fact-finder, properly applying the law, could convict – then the Judge would have called upon the defendant to ascertain if he had evidence to add to the mix. It does not mean that the defendant was presumed guilty or that he had a burden to prove his innocence. But his evidence could help the Judge in the next step in the reasoning process which would be to assess whether or not the evidence satisfied him beyond a reasonable doubt that the complainant had suffered serious emotional distress. That is a different line of enquiry to that of ascertaining whether the evidence was present in the first place.

When the case went before Justice Downs on appeal by the Police there were two lines of argument. One was that the test applied by the District Court Judge was too high. That argument was rejected by Justice Downs. The second argument was that the Judge had not evaluated the available evidence properly when he concluded that there was no evidence of serious emotional distress.

This was the crux of the case. The District Court Judge had taken reactions by the defendant to the posting of her intimate images on a Facebook page – loss of sleep, tears, possible time off work, embarrassment – and concluded that individually these did not amount to serious emotional distress. Justice Downs said that was not the proper approach. The Judge should have looked at the total effect of all of these elements and taken them collectively. In addition he should have had regard to the context – a relationship breakdown, an apparently controlling and jealous husband who had threatened to put the pictures online. Looking at these factors collectively Justice Downs concluded that they did amount to sufficient evidence of serious emotional distress and therefore the prosecution had established a case that the defendant had to answer.

So the case is about how to evaluate whether or not a post has caused harm. In that sense it could be said that it is “lawyers law”. But does this mean that the defendant is automatically guilty. It does not. The case has been sent back to the District Court and the case for the defendant will be presented and argued. And then the Judge will have to consider whether the evidence takes him past the “beyond reasonable doubt” threshold to enter a conviction.

Prosecutions under the Harmful Digital Communications Act in the main have resulted in pleas of guilty. But each case must be looked at in the context of its own facts and circumstances. It may be morally wrong to post intimate images on a Facebook page. But there are a number of other elements that must be proven before that amounts to a criminal offence. One of those elements is that of actual harm – serious emotional distress as defined in the Act. If proof of that is lacking there is no offence. If the target of the communication dismisses the posting as of no consequence, no harm has been done.

And that is what the Act is about. It is not about the nature of the content. It is about whether or not the posting has caused harm as defined by the Act.

Justice Downs’ decision helps us in how the evaluation of harm should be approached.

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

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

 

Introduction

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

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

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

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

What the Court Had to Do

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

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

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

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

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

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

The Charges

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

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

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

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

COUNT 2 – Conspiracy to Commit Copyright Infringement[4]

Pathway Offences

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

Conspiracy to Defraud[5]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

(a) a structured group;

(b) of three or more persons;

(c) existing for a period of time;

(d) acting in concert;

(e) with the aim of committing;

(i) offences established in accordance with UNTOC; or

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

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

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

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

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

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

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

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

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

Section 131 Copyright Act[18]

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

Counts 5 – 8 – Other Copyright Infringement[20]

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

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

 

 Count 3 – Conspiracy to Commit Money Laundering[21]

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

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

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

Counts 9 – 13 – Wire Fraud[22]

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

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

 

Pathway Offences for Wire Fraud

Article II.16

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

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

Section 228 – Crimes Act[24]

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

Section 240 Crimes Act[26]

Section 240 of the Crimes Act creates the offence of obtaining or causing loss by deception. There are four circumstances in which the offence may occur, all of them requiring elements of deception on the part of the perpetrator together with an absence of claim of right.

It was conceded that the element of deception could be made out by virtue of false representations that were contained in emails. The element of obtaining was satisfied by the extended definition of obtaining which included retaining, as discussed above.

For the offence to be complete, property had to be obtained. Gilbert J held that the copyright protected films in digital file format were property and cited as authority the case of Dixon v R[27] – a decision of the Supreme Court.

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

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

Section 249 Crimes Act[29]

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

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

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

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

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

 

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

Count 1 – Conspiracy to Commit Racketeering[30]

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

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

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

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

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

 

Extradition Offences – Conclusion

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

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

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

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

Other Aspects of the Extradition Decision

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

Evidence to Justify Trial on Each Count[34]

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

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

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

Preservation of Evidence[37]

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

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

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

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

 

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

Other Matters

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

[5] Ibid. at paras [77] – [133].

[6] Ibid. at paras [87] – [112].

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

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

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

[10] Ibid. at paras [134] – [160].

[11] Above n. 8.

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

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

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

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

[16] Ibid. paras [161] – [168].

[17] Ibid. at para [166].

[18] Ibid para [169] – [192].

[19] Ibid. para [193] – [199].

[20] Ibid. para [200] – [201].

[21] Ibid. para [202] – [212].

[22] Ibid. paras [213] – [230]

[23] Ibid. para [217] – [219].

[24] Ibid. para [220] – [222].

[25] Ibid. para [220] – [222].

[26] Ibid. para [223] – [225].

[27] Above n. 8.

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

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

[30] Ibid. para [231] – [238].

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

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

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

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

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

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

[37] Ibid. para [254] – [259].

[38] Ibid at para [258].

[39] Ibid. at para [263].

[40] Ibid at para [273].

[41] Ibid at paras [274] – [294].

[42] Ibid at para [277].

[43] Ibid at para [279].

[44] Ibid at para [291].

[45] Ibid at para [294].

[46] Ibid at paras [302] – [386].

[47] [2005] HCA 58.

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

Digital Discourse

The case of Senior v Police [2013] NZFLR  356 has some interesting things to say about the nature of discourse on Internet social media platforms – Facebook in particular.

The case was about a breach of a protection order. Senior was subject to a domestic protection order. The protected person was his former partner. One of the terms of the protection order required Senior “not to engage or threaten to engage in other behaviour including intimidation or harassment, which amounts to psychological abuse of any person”.

Senior placed a post on his Facebook page. It was abusive of his former partner. She was not one of his Facebook friends so would not have automatically received notification of the post and its content. However, the niece of the protected person was one of Senior’s Facebook friends and drew the attention of the protected person to the post. She complained to the Police.

Senior was convicted and took the case on appeal. The issue was whether or not the appellant had, in legal terms, the appropriate mens rea, or intention, or reckless state of mind when lodging this abuse on Facebook.

The Judge, Justice Fogarty, held that very strong  personal abuse directed at a former partner, placed on Facebook, read by a large number of friends, some of whom would inevitably have contact in the natural social network with the person being abused, was at the very least highly reckless.

In coming to this conclusion the Judge took an interesting path and took judicial notice  of the fact that persons who use Facebook are very aware that the contents of the Facebook are often communicated to persons beyond the “friends” who use Facebook. When information is put on a Facebook page, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of “friends”. … It is somewhat improbable to say, which was not said here, “Oh, I never thought it was possible that the person I was abusing could possibly have known about this”.

Judicial notice is a tool used by Judges to recognise certain well known facts without expert evidence. Often judicial notice is deployed in cases of well  known and well recognised technologies. Judicial notice, for example, has been taken of the accuracy of a GPS device without the necessity of proof of accuracy or how it works.

The observations by Fogarty J constitute a technologically suspect assertion that ignores the nuances of privacy settings and the way in which a user may configure his or her page. For example, depending upon the privacy settings a user may not communicate content to anyone, but only receive messages.

But if we accept the very bald finding of Fogarty J it sends an interesting message about the nature of discourse using social media platforms which rely on the ability to share information among a coterie of, for want of a better word, associates.

Discourse has always involved coteries be they another individual or group of individuals. Oral discourse and communication by writing provide examples. In the past communication by letter between individuals carried a high expectation of privacy. On occasion, however, letters may be circulated to others or a group of others. But again the expectation was that publication would be limited to the coterie.

Edmund Plowden, whose case reports were published in 1571, clearly had circulated manuscript copies of his reports within a coterie of lawyers in the Inns of Court. It was a fear that they might find their way into the hands of a printer and be published without Plowden’s permission or supervision that prompted him to undertake the printing of his reports himself. The aversion to print was also expressed by John Donne whose controversial tract on suicide Biathanatos  was circulated within a coterie but Donne forbade its printing or its burning – at least during his lifetime.

The printing press enabled the wide dissemination of ideas and communications to a wider coterie – the public. Indeed the word “publish” means to make public. The discourse that followed in the form of tracts, arguments and counter arguments were a characteristic of the political and religious landscapes after the sixteenth century. This outpouring of discourse naturally attracted the attention of the authorities who in various ways attempted to moderate or suppress the discourse. One way was to attempt to regulated the technology in the form of the Licensing Acts from 1662 to 1696, the expiry of which led to the debate about the right to copy, culminating in the Statute of Anne in 1710.

The importance of printed discourse was recognised by the fledging United States Republic in the First Amendment to the Constitution prohibiting government interference with the freedom of speech or the press. The freedom of expression is incorporated into section 14 of the New Zealand Bill of Rights Act 1990 as the right to receive and impart information – a section that clearly recognises the importance of discourse and the exchange of ideas.

Following the printing press other forms of communications technologies such as radio and television have provided the ability to enhance the nature of discourse, although the degeneration of 21^st century mainstream television content may well challenge that proposition.

What the internet and digital technologies enable is a form of publication or dissemination that has two elements.

One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender.

Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before.

In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and photocopiers. Generally  dissemination was very small.

Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users.

News organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists.   Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This characteristic has been recognised by politicians and the recent use of Twitter by President Trump demonstrates the difficulty of articulating complex issues of policy – indeed some might say that any form of coherent articulation beyond 140 characters was beyond the capabilities of Mr Trump.

Internet based publication or dissemination exacerbates the quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.

It is possibly the potential for exponential dissemination to which Fogarty J refers in Senior and upon which he bases his sweeping assertion that people who post to Facebook know and therefore intend (or are reckless) that it will go further.

This assumption – and it can only be that – underlies The New Zealand Herald editorial of 7 January which laments the apparent lack of understanding on the part of a digital native who posted a comment on a social media platform and who then took the post down when she found “people were going a bit overboard with threats and racist comments”. Interestingly the editor asks the rhetorical question ” How many years of living on this web will it take before we treat it with more caution?”

The question is no longer relevant. That  particular horse has well and truly bolted, and despite the fact that the Herald, like so many other news outlets, now has an online presence, the editor fails to have grasped the fact that the medium itself – rather than its content – is the driver of changed attitudes to debate and indeed communication. As Marshall McLuhan said “we shape our tools and thereafter our tools shape us”.

For digital natives the verbal or face to face communication methods of the pre-digital paradigm are passe. Social media platforms enable communication with a wider coterie of digital acquaintances who may, in Facebook for example, be designated with the word friends.

In the same way that verbal discussions can develop a certain amount of heat, and often the way to resolve such confrontations is to disengage, so it is with social media platforms. The digital native in question simply disengaged.

What the Herald editor has done has been to apply the pre-digital concept of coterie communication to a paradigm that dictates a re-evaluation of the nature of discourse and of the expectations of information and its communication. Digital natives are aware that their posted information MAY be shared and it MAY be that information will go viral. Whether they actually intend that outcome is another matter and to ascribe that intent merely by posting is perhaps a bridge too far. Digital technology have redefined our expectations and our use of and our relationship with information.

In the case of the digital native in the Herald article the digital paradigm enabled distribution of her content to a much wider coterie than she initially expected. The level and quality of the debate increased exponentially.  In these days of unreason, many of the attacks were ad hominem (or perhaps ad feminam would be more accurate). It is a sad reflection of discourse that the messenger rather than the message becomes the target.

The digital native, as I have observed, disengaged and walked away from the extended coterie –  a sensible thing to do. She had made her point and exercised her right to freedom of expression.  Others exercised theirs. Had she suffered serious emotional distress as a result of the various posts which she received, she may have had a remedy under the Harmful Digital Communications Act 2015. But that is something of a nuclear option. But she chose rather to disengage.

Fine Tuning the Internet?

New Zealand Herald Tech Blogger Juha Saarinen has written an interesting piece in the technology column of today’s Herald. He blames the Internet for 2016 and is gloomy about the future.

He focusses upon cybecrime, ransomware, malware and the hostile nature of the environment, conveniently forgetting that the kinetic world is a hostile place. Social media comes in for a hit, providing a platform for extremists as well as posing a threat to privacy.  Hatefulness is poison – no doubt – but I am always reminded when I hear calls to “shut them down” of the title of a book by Anthony Lewis – “Freedom for the Thought That We Hate”.

Freedom of speech is nothing if it is the freedom to say things with which we agree, and the echo chamber seems to be a phenomenon of the ghastly post-truth world. One’s commitment to freedom of speech is tested when one is confronted with something truly disagreeable but which, nevertheless, the speaker or writer is free to express. I have always subscribed to Thomas Jefferson’s marketplace of ideas theory. The good ideas will receive traction. That bad ones will fall away. Idealistic? Yes, but rather better than muzzling.

Juha closes by suggesting that the Internet is sliding towards bad things and needs fine tuning to fit people better, arguing that next year wouldn’t be too soon to start on that process.

This sounds like a call for some sort of Internet regulation. Juha properly recognises that the Internet in fact is just the communications backbone. In that respect it is content neutral. It is merely a means of transporting data. It is what is “bolted on” to the backbone that is where the interest lies.

Permissionless innovation has always been a positive characteristic of the development of Internet platforms. Perhaps it is this aspect that needs regulation. Perhaps Tim Berners-Lee should have had to go through a bureaucratic process before letting the Web protocol loose on the Internet. Similarly Google – a group perhaps of code and consequence vetters should ensure that the platform is fit for purpose and “safe” to use – oh and by the way, if you want to make any changes to the code you will need to have out approval.

Permissionless innovation and the lack of red tape accompanying bolting a platform on to the backbone has been one of the strengths of the Internet.

A few years ago I used a phrase – unadvisedly in the particular context – which I will repeat here. We have met the enemy and he is us. The Internet is not the problem. We are. And if that were not enough, factor in a level of disinhibition that seems to accompany on-line behaviour like trolling and it becomes clear that the problem is people – or rather some people.

We have laws in place already that deal with online behaviour. The controversial Harmful Digital Communications Act 2015 – an example of Internet exceptionalism – regulates behaviour online. The computer crimes sections of the Crimes Act 1961 – getting a bit creaky now after 13 years – deal with online fraud, hacking and systems compromises. Spam is covered by the Unsolicited Electronic Messages Act 2007. Unauthorised file sharing is dealt with under the Copyright Act 1994. Child porn falls within the Films Videos and Publications Classification Act 1993. These examples visit consequences upon users who breach the legislative provisions. The laws are there. I seriously doubt that the Internet itself needs further regulation if indeed you can do that to such a diverse and distributed network

In the same way that people take steps to protect their property by putting security systems in place to stop burglars or fraudsters or other villains with vile intent facilities are available to ensure that the work or home systems are as secure as they can be.

But there is one thing you can do if the Internet gets to be too much and that is pull the plug. That is rather harder to do in the kinetic space. The real world which is REALLY scary is a lot harder to switch off.

Big Data and Implications for Information Governance and E-Discovery

This is a paper that I presented at the Singapore Academy of Law Technology Law Conference 2015: The Future of Money and Data.

It examines the phenomenon of Big Data and the contribution that will be made to that data by the Internet of Things. It is suggested that an understanding of Big Data will provide businesses and organisations with significant opportunities to use informational datasets in many aspects of their activities.  A significant contributor to already existing Big Data datasets will be the Internet of Things (IoT) allowing for information gathering on a hitherto unprecedented scale. The proper management of this data to make it meaningful and useful for an organisation is the purpose of Information Governance. It is argued that Information Governance is an essential business strategy that not only enables a business to use data effectively but also lays a significant preparatory foundation for compliance with e-discovery obligations in the event of litigation. It is suggested that rather than being viewed as a discrete process, e-discovery should be seen as a part of an overall Information Governance strategy.

The full paper can be seen here:

View this document on Scribd

TV Content Delivery – Collisions in the Digital Paradigm VI

This article has been posted before but I have updated it in light of subsequent events like the settlement of the Global Plus Case. I had occasion to recall it as a result of a very interesting session at Nethui on 10 July about – you guessed it – copyright.

I have blogged before on the problems of market segmentation and regionalisation of content – especially in the context of access to downloadable content. Like many I am of the view that the Digital Paradigm has swept away many of the preconceptions that may once have existed about the distribution of music and video content. As services become available, more and more people are eschewing the covert downloading of material and opting for a paid service. Netflix is an example. Even so, some content distributors just haven’t got it right.

Take Television New Zealand and TV3 for example. They boast an “On-Demand Service” that really is not very satisfactory at all. All the content is available for a short term only and then it vanishes. The opportunity to watch a whole series of “back to back” episodes is just not available. To make matters worse, some of the content, such as “American Crime” is not available on “free to air” TV thus making it impossible to time shift using MySky and watching an episode or a number of episodes at a convenient time. Rather like broadcast TV, if you can’t make it in front of a screen when the network is prepared to make the content available, you miss out. To make matters even worse, if one is travelling within the “window of opportunity” that the networks allow us to view an episode or episodes, regional blocking means that the content is “not available” in the US, UK or the Continent and who wants to go through the proxy or VPN hassle when one is travelling. Hardly a satisfactory way of delivering content in a Global environment.

I understand that broadcast and screening rights are governed by licensing arrangements and it seems to me that these licensing arrangements contribute to the market segmentation-regionalisation problem. One would have thought that when Netflix arrived in New Zealand one of its big selling points would be the third series of “House of Cards”. But no. Netflix in New Zealand doesn’t have the rights. Nor, it would seem, does anyone else. Astonishing!

There are some that I know who resolve this problem by anonymisation or VPN and take out subscriptions to US based content providers like Hulu or Netflix. All perfectly legal (up to a point) in that the fees have been paid and there is no suggestion of downloading content for free via bit torrent. The only issue is a contractual one – misrepresentations have been made as to location. Yet no one loses, especially when the content (like “House of Cards Series 3) is simply not available in New Zealand.

The networks have put in place other measures to discourage piracy. Broadcast series like “The Walking Dead”, “Arrow” and “Game of Thrones” are broadcast simultaneously in New Zealand – whether this is to prevent piracy by downlaoding or to prevent fans from seeing “spoilers” on their Twitter feeds or Facebook pages I know not – there is already a spoiler out for “Game of Thrones” – a book in fact, but it is rather large and requires a considerable attention span not possessed of many in these days of instant on-line gratification.

But what has happened in recent times is a further move to cement in market segmentation and regionalisation of content delivery. Internet service providers who have made a “global” option available so that their subscribers can view overseas content via Hulu are in the firing line from the major players in the content delivery field in New Zealand. Lets just say that the legal position is an interesting one and will provide lawyers with some novel arguments in the area of copyright and copyright licensing. For those who desire certainty in the law, the fact that the case settled is a irritating

But to what avail. Should the major players be successful they will have shut down one way by which Digital Natives get their content. In the spirit of Michael Froomkin’s concept of regulatory arbitrage, those who seek content will find it via VPN or other anonymisation techniques. Perhaps it is time for the majors to realise that old style market segmentation and content delivery methods have had their day. Digital delivery has been adopted by most, but still with the tattered trappings of pre-digital thinking. A global approach to content delivery  should be adopted, together with a more meaningful local “on-demand” business model. All that is required is a shift in thinking.

Technology and the Courts – CTC2013 in Baltimore – Day 1

Every two years the National Center for State Courts runs a Courts Technology Conference. These are enormous gatherings, bringing together people involved in all aspects of justice delivery both from the US and internationally.

This year the Conference is being held in Baltimore and the first day has been envigorating and exciting. The day got started with an exciting keynote by Alec Ross, formerly with Hilary Clinton when she was Secretary of State. Some interesting observations came out of this session. One example involved the use of social media whilst State Dept representatives were on a mission in Syria. One member of the delegation sent a flippant tweet involving a frappacino – nothing remarkable but the news media picked up on it and there was a lot of criticism which lasted for a news cycle but resulted in embarrassment for the delegation. The upshot? Ross used this as an example of treating mistakes as misdemeanours rather than felonies. Was this a career ending “offence”. Of course not. In fact Ross said that Hilary Clinton’s response was that if you don’t take fire you are bombing the wrong target. Worth thinking about when mistakes are made and there is a possibility for overreaction. I guess in these days of social media we may all have our “frappacino” moments.

There are a number of streams at CTC2013. My primary interest has been in the Judicial stream but not exclusively. In the first session I attended, Judge Martin Gonzales and Judge Dory Reiling talked about technology turn offs. Rather than this being a hate session about technology and the courts it was more off a cautionary  discussion. Judge Gonzales emphasised the importance of ensuring that litigants did not become aspects of data. The Court process is a human process where Judges must engage personally with litigants and Judge Gonzales gave some salutary examples. So yes, technology can be a tool, but it should not take over.

Judge Reiling described ways in which technology can be applied in the litigation process as a facilitatory tool towards achieving an outcome be it by way of settlement or judicial decision. Using a matrix she was able to demonstrate where technological interventions may take place. One interesting development that she noted was a system used by the English Court system where individuals may file claims for debt online – essentially a tool for self-represented litigants.

That segued nicely into the next session I went to which was about the ways in which technology may assist represented litigants file and progress their claims. The presenters identified SRL needs and then suggested ways in which technology may meet these needs. The basic model is for Courts to have an access portal for SRLs remembering that access must be effective in that those with disabilities need to be catered for, that legal language be avoided, that procedures are simply explained,that there’ve effective help facilities provided including on line advice. Given the increase in SRIs especially with the cuts that have been made to legal aid there must be ways in which SRIs can have meaningful access to the Court system.

At the moment I am listening to a discussion about social media. Moore of a general discussion about social media rather than specific applications within the justice system. It is an interesting day, but CTC days always are.

The IT Country Justice. 17 September 2013.

The Law of Unintended Consequences

Every year between March and June I teach Law and Information Technology two evenings a week at Auckland University Law School. When I was asked to take on the class in 2000 after the departure of Mark Perry from the faculty, I thought that it would be about  five years before other courses absorbed most of the issues that seemed to be “new”. Issues of Internet Governance would become part of Public Law, Internet Jurisdiction would fold into Conflict of Laws, Computer Crimes would become part of the Criminal Law paper, whether the postal rule applies to email contract formation would become part of contract, Internet Defamation would fall into Tort or Media Law and so on.

But no….I was wrong, and I am pleased to say that the course continues. It continues to develop. In 2000, Napster was going strong. Now we have the graduated response rules to address file sharing. Facebook and Twitter hadn’t been invented. Google wasn’t around – other search engines like Altavista, Dogpile and Hotbot were the places to go to find stuff. So in many respects the course changes as new technologies, apps and protocols come on stream and raise questions that involve or impact upon legal principles. The teaching year ends in June with examination marking, but teaching doesn’t end there.

One of the other aspects of my relationship with the Law Faculty is the supervision of dissertations and this involves one on one contact with a student and the chance to help ideas develop and critique them as the dissertation takes shape. There have been all sorts of topics. One of the early ones was whether US contributory copyright infringement formed part of New Zealand law. The conclusion was that it didn’t and following from that Napster should have located its servers in Aotearoa instead of San Jose, California. Recently I had the pleasure of watching ideas about the imposition of a consumption tax on on-line goods (in Second Life or World of Warcraft) develop – that was very interesting and reminded me of one of the underlying themes in Neal Stephenson’s Reamde.

A third aspect of teaching is the chance to watch one’s students fly. There have been occasions when former students have appeared in my Court, as counsel of course  – always punctual – they remembered the first lecture! In June and August I had the enormous honour of sharing a stage with two former students who were presenting on aspects of Technology Law for the New Zealand Law Society. I salute them all.

In the movie Dances With Wolves the Lakota, Kicking Bird, would express joy with the phrase “my heart leaps to see you” and although its is not clear whether or not he had read Wordsworth’s Rainbow it is a sentiment that I share on occasion, although at my age one has to be careful that the heart doesn’t leap too high or it might not come down! But there are occasions when my heart leaps – often in association with achievements of my students or former students and this week has been one of them.

Three of my students from class this year (two ladies and one man) are front of camera on a video called “Defined Lines” and another of my students filmed the clip. It is a parody originally performed at the Law School Revue – a fertile breeding ground for humour, satire, edgy skits and some really clever performances. In fact when one considers that Law School is designed to teach one to think like a lawyer (in some circles this is called brain washing but never mind) it is clear that there are some serious areas of free thinking and creativity alive and well in the minds of law students. Long may that continue. But then, don’t forget that it is often said of litigators that they are frustrated actors who are constantly on their feet before an audience.

“Defined Lines” as I said is a parody. It is also rapidly becoming something of a feminist anthem, given that, as at the time of writing this piece, it had nearly 1.5 million hits on You Tube – and it has been up only a week. It is sassy, a tad raunchy, slightly edgy but a whole lot of fun, and I get the sense that everyone involved – and I mean everyone – really enjoyed themselves.

But along with 1.5 million hits comes a bit of a problem. It isn’t enough for a video to go viral but there are other unintended consequences – like the media gets interested. So far the story of “Defined Lines” has featured on New Zealand TV and has been mentioned in other countries. There has even been legal commentary on the copyright implications from Rick Shera (@lawgeeknz). The story has spread virally among news media and blogs and @LawRevueGirls already have quite a following on Twitter. And I understand that the requests for interviews and commentary continue. We  talked about the viral nature of content as a unique property enabled by the Internet in class, and I think that the message has come home with a vengeance. But the deeper message that they put out is an important one and I am willing to bet that @LawRevueGirls didn’t expect that they would get quite the audience that they now have.

So my heart leaps for them, and it is a great joy to see them fly. You really go, @LawRevueGirls.

But that ain’t all. The Law Revue produced another neat piece of video parody of Snap Chat called Smack That. You have to listen very carefully to the lyrics because they tumble out like a waterfall, but this too is a very clever piece of work. So wonderful to see such creativity. What exciting times we live in.

The Crimes Amendment Act 2003 and the Government Communications Security Act 2003 – An Interrelated History

In 1999 the Government introduced the Crimes Amendment Bill (No 6). The Bill contained, among a large number of other changes to the law, provisions relating to computer crimes. The changes proposed seemed reasonable and were designed to address some issues that had been identified by the Law Commission in its 1999 report “Computer Misuse”.

Then a new Government introduced Supplementary Order Paper No 85 which radically changed the landscape not only of computer crime by adding a provision criminalising unauthorised access to computer systems (without associated dishonest acts or intentional damage) but also addressing changes to the provisions of the Crimes Act relating to crimes involving privacy and the circumstances under which law enforcement and intelligence agencies might be exempted from the proposed unauthorised access to computer systems provisions.

In the process the potential for state surveillance, enabled by digital technology, was expanded and it also became necessary and desirable for an organisation that had been involved in intelligence gathering, the GCSB, to have statutory recognition and oversight. While the Legislature followed up on enacting the GCSB Bill – a process that took some two years – the Crimes Amendment Act languished until its enactment in mid-2003.

It has long been my view that had it not been for the addition of the unauthorised access offence in SOP 85, it may not have been necessary for the GCSB to have moved into the picture and indeed it may not have been necessary – at least at that time – for it to have had its own legislation. But in a startling example of the law of unintended consequences that seemed to have been the case.

I decided, since I had a little time on my hands, to have a closer look at the history of the two pieces of legislation and their interrelationship. I based my research on the various Bills, Supplementary Order  Papers, Debates from Hansard and materials and reports I had in my own possession which I gathered at the time. The lack of on-line material from the Government prior to 2003 meant that some of my researches had to follow alternative sources. I should also add that my researches did not include any policy documents so the introduction of the GCSB Bill relies on the statements of Michael Cullen MP in Hansard when the Bill was first read.

I think that it can be inferred from the material that I have put together that the changes proposed by SOP 85 resulted indirectly in the passage of the GCSB Act 2003. Although SOP 85 set out prescriptions whereby the GCSB may be exempted from criminal liability for accessing computer systems (and these were stated as exemptions rather than authorisations) it obviously became necessary for the GCSB to have statutory recognition. The importance of this was pointed out by the Privacy Commissioner Mr Bruce Slane in his submission on the Crimes Amendment Bill (No 6) in December of 2000.

The other related issue was the way in which some of the scope of the powers of the GCSB and other authorities were extended by changes to definitions that allowed digital systems to be included in search and surveillance activities. Further enabling of such activities came into effect with the passage of the Telecommunications Interception Capability Act 2004.

I want to make it clear that in putting together this information and writing it up I am acting, as Christopher Isherwood put it, as  “a camera with its shutter open, quite passive, recording, not thinking.” although I do offer some conclusions on the evidence and raise some questions on the wider issues of the nature of liberty in the Digital Paradigm and whether, with the constant disruptive change that characterises that Paradigm, our understanding of liberty may change from Jefferson’s Enlightment agrarian ideal to something else.

A further point must be made. I have incorporated a number of quotations from Members of Parliament in Hansard. Keith Locke MP features regularly. The use of his speeches or of any other Member should not be taken as an endorsement of the political views of that member or of his or her party. As I said, “I am a camera”.

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Access to Court Documents in Criminal Proceedings

Court documents and files are valuable primary resources for the purposes of research and are an essential first stop for journalists covering court proceedings or following the course of a case from its inception through to its conclusion. But there are a number of competing interests that must be taken into account in considering whether or not there should be access to Court documents – both personal and systemic. This paper describes recent changes to the rules relating to access to court documents and files in criminal proceedings. It is an overview. Those who wish to investigate the matter further are referred to the Criminal Procedure Rules 2012.

Introduction

The changes to criminal procedure in New Zealand that have followed the introduction of the Criminal Procedure Act 2011 have necessitated changes to the rules surrounding access to Court documents in criminal proceedings.

The rules relating to such access were set out in the Criminal Proceedings (Access to Court Documents) Rules 2009.These have been supplanted by the Part 6 of the Criminal Procedure Rules 2012. I have discussed access to Court documents in an earlier post  and have covered civil and criminal proceedings. This purpose of this post is to describe the current rules relating to access to Court documents in criminal proceedings following the changes made by the 2012 Rules.

The 2009 Rules approached access to court documents in criminal proceedings on a staged approach, and the level of access depended upon which stage the proceedings had reached. Cases that were proceeding to trial by jury had an intermediate committal stage before trial. The prosecution had a discretion whether or not to lay a charge indictably in many cases which meant that an accused automatically went to trial before a jury, and had no choice in the matter. Some charges, such as aggravated robbery, were purely indictable. Once again, an accused had no choice in electing either trial by jury or trial before a Judge alone. That has all changed under the Criminal Procedure Act. An accused has no right of trial by jury where the charge carries a maximum sentence of less than two years imprisonment (a Category 2 offence). Only the most serious cases (Category 4 offences) will now automatically go before a jury. For what are called category 3 cases unless an accused elects trial by jury, the case will be dealt with by a Judge alone. There is no preliminary hearing or committal hearing that existed under the Summary Proceedings Act. These new changes to procedure meant that the “stages approach” under the 2009 Rules was no longer applicable.

The Definitions

One of the most important definitions is that of a “criminal proceeding” because it recognises the changes brought about by the Criminal Procedure Act. A criminal proceedings is defined as a proceeding under the Criminal Proceeding Act and includes all steps in such a proceeding including the sentencing of a defendant. It includes bail proceedings, proceedings under the Criminal Investigations (Bodily Samples) Act 1995, proceedings under the Criminal Proceedings (Mentally Impaired Person) Act 2003, extradition proceedings and the Parole Act 2002. Included are any proceedings under Parts 4 -6 of the Crimes and International Criminal Court Act 2000 and proceedings under any other enactment to the extent (if any) determined by a Judge. Included are appeals or originating applications to any court under the Criminal Procedure Act 2011 or the Bail Act 2000.

The 2012 definition of a “document” differs from the 2009 definition but more in the means of expression than in any substantive way. The 2009 Rules defined “document” as any written material in the custody or control of the court that relates to a criminal proceeding, whether or not kept on a court file; including  documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form excluding notes made by or for a Judge for his or her personal use and any material that relates to the administration of the court.

The 2012 definition is exclusionary. It states that a document does not include judicial notes for personal use and material that relates to the administration of the Court. The Criminal Procedure Act has an extensive definition of a document and reads as follows:

“Document

(a)means a document in any form (including, without limitation, a document in an electronic form); and

(b)includes, without limitation, any of the following:

(i) any writing on any material:

(ii) information recorded or stored by means of a tape recorder, computer, or other device:

(iii) material subsequently derived from information recorded or stored in the manner described in subparagraph (ii):

(iv) labels, markings, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(v) books, maps, plans, graphs, or drawings:

(vi) photographs, films, negatives, tapes, or any other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced”

This is a very wide definition and it is meant to be. Part of the purpose of the Criminal Procedure Act was to prepare the way for the paperless court. Thus electronic “documents” and computer generated information are included. Information stored on any other device could conceivably include images recorded on a DVD but the status of visual images is specifically dealt with in (b)(vi).

The document definition is a generic one in that it appears in many other statutes. In many respects it is representative of McLuhan’s “rear view mirror” approach and it ignores the developing technological realities of information retention. Document connotes a physical medium upon which information is stored. It is a term readily understood by the parchment, paper and pen or print paradigm but has little meaning for the Digital Paradigm. As I have observed elsewhere, in the Digital Paradigm a document is in fact a process in that a document does not “exist” as a coherent entity on a digital storage device. This is recognised in part in (b)(ii) and (iii) where the word “information” is used. In fact “information” as a subset of a “document” reverses what is really important within the Digital Paradigm. The focus of the definition should be upon “information”. If the word “document” is to be retained (and I see no reason why it should be other than a hat-tip to the past) it should be defined as information recorded in any form. After all, it is the record that is important.

The Rules apply to documents while they are in the custody or control of the court and until they are transferred to Archives New Zealand. There is no obligation to prepare a document that is not in existence at the time the document is sought. (6.2 ). As was the case in the 2009 Rules any Judge making a decision under the Rules or any appeal against such decision is made within the civil jurisdiction of the Court, rather than the criminal jurisdiction. (6.3)

Rule 6.4 provides for a general right of access. It is subject to Rule 6.9 (which provides for restrictions on access and is discussed below).  The general right of access is to:

• the permanent court record (which is provided for under Part 7 of the Rules
• any published list providing notice of a hearing
• any judgment, order, or minute of the court given in a criminal proceeding, including any record of the reasons given by a judicial officer
• any judicial officer’s sentencing notes.

However, the court may direct that judgments, orders, or sentencing notes not be accessed without the permission of the court. That decision is one made on a case by case basis.

A request for access may be made orally to a Registrar. If the request relates to a document which requires the Court’s permission to access or which is subject to Rule 6.9  (for discussion – see below) the Registrar may require that the request be made in writing and identify the requested document and give the reasons for the request. This introduces what could be described as a combination of the “Rumsfeldian Paradox”  and “Catch 22” in that the person seeking access cannot specify the document to which access is sought unless he or she knows that such a document exists and can only be aware of the existence of that document by searching the Court file.

The Permanent Court Record

What is the “permanent court record”?  The permanent court record is provided for in Rules 7.1 and 7.2 of the Rules. It is probably best described by understanding what it contains. Rule 7.2 sets that out.

The permanent court record for a court at any place must record such of the following particulars relating to each charge filed in the court as are applicable:

(1) the name and place of the court:

(2) the judicial officer or Registrar who presided over each hearing:

(3) the jurisdiction exercised:

(4) the particulars in relation to the name provided under section 16(2)(e) of the Criminal Procedure Act:

(5) the name of any private prosecutor who commences a proceeding:

(6) the particulars of the defendant provided under section 16(2)(a) of the Criminal Procedure Act:

(7) a description of the charge, including—

(a) the enactment creating the offence; and

(b) the date on which the offence was alleged to have been committed; and

(c) whether the charge is a representative charge or an alternative charge; and

(d) the date the charging document was filed; and

(e) the date and other details of any appeal relating to the charge:

(8) the Attorney-General’s consent (if required) to the charge being filed:

(9) in the case of a private prosecution, any directions and orders by a Judge relating to the filing of a charge:

(10) hearing dates:

(11) remand dates:

(12) pleas entered and changes of plea:

(13) form of trial (Judge-alone or jury trial):

(14) place of trial:

(15) any warrant issued in respect of a defendant or witness:

(16) the outcome of any application for bail:

(17) dismissal or withdrawal of a charge:

(18) order for a retrial or rehearing:

(19) transfer to a different court or venue:

(20) determination of the charge, including—

(a) verdict (guilty or not guilty):

(b) acquittal on ground of insanity:

(c) substitution of one offence for another offence:

(d) outcome of special pleas:

(e) leave decision for any appeal:

(f) stay of prosecution:

(g) jury verdict, and whether unanimous or by majority:

(h) deemed conviction under section 376:

(21) orders made on appeal:

(22) warnings given under any enactment:

(23) suppression orders:

(24) costs orders:

(25) orders for a bond to keep the peace:

(26) orders made under section 375 of the Act for payment of a fine and costs in an infringement offence case:

(27) any other judgment or order (other than the reasons for the judgment or order).

Rule 7.1 provides that the permanent court record must be kept by the Registrar of the Court at any place. It may be in hardcopy or electronic form. Entries must be made by the presiding judicial officer or by the Registrar of the Court and those entries or corrections must be authenticated by the judicial officer or the Registrar, although the original entry (where a correction has been made) must remain. As a matter of evidence, the contents of the permanent court record are provable by a certified copy or extract provided by a Registrar.

Prosecution and Defence Right of Access to the Court File

There are provisions for access to court documents by the prosecution or the defence.  Rule 6.5 provides that the prosecutor and the defendant in a criminal proceeding, and their lawyers, may access the court file during or after the completion of the criminal proceeding.

The material that may be accessed is wider than that provided under the general access provision. The scope of the access is to the court file.

However, the right provided by the Rule is not absolute and there are exceptions. A Judge may direct that the court file or any document relating to the criminal proceeding not be accessed by the prosecutor and the defendant or their lawyer without the permission of the court:

if there is more than one defendant in the criminal proceeding, a defendant or the defendant’s lawyer may access the court file or any document relating to the criminal proceeding only with the permission of the court.

As is the case with general access, request for access by prosecution or defence may be made orally to a Registrar. If the request relates to a document to which access may be restricted either by the exceptions provided in the Rule or under Rule 6.9, the Registrar may require that the request be made in writing and identify the requested document and give the reasons for the request.

Companies are also provided for in the Rule. If the defendant is a corporation, the right of the defendant to access the court file or any document may be exercised by a representative of the defendant who has been appointed in accordance with section 12 of the Criminal Procedure Act.

Access During Proceedings

I observed that under the 2009 Rules there was a “staged” approach to access. Under the 2012 Rules this approach is no longer necessary. Nevertheless, the 2012 Rules recognise that there may be circumstances where access to Court documents may need to be addressed circumspectly while proceedings are in train to protect fair trial rights and the proper administration of justice. Access during proceedings is covered by Rule 6.6.

The first thing is to define to time frame within which the Rule applies and it is from the commencement of the proceeding by the filing of a charging document until all applicable appeal periods for that proceeding have expired.

During that time frame, if any person other than a party to the proceeding wishes to access a document, a request for access must be made.

Not all documents may be accessed. The court may, on its own initiative or on request, direct that any document, or part of any document, relating to the proceeding not be accessed without the permission of a Judge.

The Request for Access

A request for access to any document during proceedings is made informally to a Registrar in writing. The request must identify the requested document and also give the reasons for the request.

Once a request has been made, the Registrar must promptly serve on the parties or their lawyers a copy of the request. A party who wishes to object must, before the relevant deadline (which is defined in Rule 6.7) give written notice of the objection:

• to a Registrar,
• to the person who made the request,
• and to the other parties or their lawyer.

Once an objection has been received the Registrar must promptly refer the objection and the request to a Judge. When a request is referred to a Judge, the matter is to be dealt with in accordance with rule 6.10.

Determining an Opposed Request for Access During Proceedings

Rule 6.10 sets out the process and the matters that a Judge must take into account in considering an opposed application for access to documents during proceedings.

The request or application may be dealt with “on the papers” or at an oral hearing. The Judge may order that access be granted in whole or in part and subject to any conditions that the Judge thinks appropriate

In determining a request or an application the Judge must consider

• the nature of, and
• the reasons for,

the application or request.

The Judge must also take into account each of the following matters that is relevant to the application, request, or objection:

(a) the right of the defendant to a fair hearing:

(b) the orderly and fair administration of justice:

(c) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:

(d) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, trials and decisions:

(e) the freedom to seek, receive, and impart information:

(f) whether any document to which the application or request relates is subject to any restriction under rule 6.9:

(g) any other matter that the Judge thinks just.

The list is not ranked in order of importance and the Judge must weigh each consideration. Pursuant to clause (g) the Judge may take into account other consideration that he or she may think just, so the list of matters is not exclusive.

If there are no restrictions on access imposed by a Judge or access is not restricted pursuant to Rule 6.9 and no objection has been received before the expiry of a relevant deadline or the parties or their lawyer earlier agree that a person be given access to the document, a Registrar must promptly give the person who made the request access to the document.

The Relevant Deadline

Where a request is made for access to a document during proceedings and where  a party or lawyer receives a copy of that request, relevant deadline means whichever of the following times is applicable:

(a)   if the copy of the request is received on a day on which a pre-trial hearing or the trial is proceeding, 3 pm on the first working day after the day on which the copy is received

(b)   if the copy of the request is received on any other day, 3 pm on the third working day after the day on which the copy is received.

The reason for the shorter time frame in clause (a) lies in the fact that a hearing (either a pre-trial or trial) is imminent, and there is some urgency in disposing of the application in a timely manner. Those pressures are not present in the circumstances envisaged by clause (b).

Access in Other Cases – Rule 6.8

The Rules make provision for access to the file or to documents “in other cases” and this Rule would apply  where the proceeding had concluded. I say that because it seems to me to be the only other alternative to access to documents when a case is proceeding. The Rule does not make it abundantly clear, but I think that it is implicit.

Rule 6.8 applies to requests for access to documents relating to criminal proceedings and to a court file by a person other than a party. The request may be made informally but in writing to a Registrar. The request must identify the document or the Court file to which access is sought.

The next phase is interesting. The application must be referred to a Judge. The language is directive. There is no discretion. Once the application has been referred to a Judge, that Judge may direct that the applicant file a formal application by way of an interlocutory or originating application. Alternatively the Judge may deal with the matter in the same manner as an opposed application under the rules relating to access during proceedings.

Once the matter has been referred to a Judge, the Judge may direct that the applicant requesting access serve a notice of the request on any person who, in the opinion of the Judge, may be adversely affected by the request although there is power to dispense with such service if it would be impracticable to do so.

There are no specific criteria that may guide the Judge as to the circumstances in which a formal application may be required, other than the matters referred to in Rule 6.10. The reason for that is that Rule 6.10(2) states:

“In determining a request or an application under this rule, the Judge must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection.”

Rule 6.10 (referred to as “this rule”) is engaged as a result of the language of Rule 6.10 (1) which states:

A Judge may deal with any request or application that requires permission of a Judge or the court to be given on the papers or at an oral hearing, and may grant access in whole or in part and subject to any conditions the Judge thinks appropriate.

Rule 6.8 requires consideration of the application by and with the permission of a Judge. It is that quality that makes Rule 6.10(2) applicable. Curiously enough and in contrast to the provisions of Rule 6.6 (access to documents during proceedings) an application must be referred to a Judge in every case. It could be argued that issues such as fairness of trial are no longer applicable. The proceedings have been concluded. The outcome is historical and the various documents on the file are essentially of historical interest only. On the other hand, the full court file contains a significantly larger quantity of information that the permanent Court record and the sentencing notes of a Judge. It will include a transcript of the evidence, exhibits, pre-recorded testimony of vulnerable witnesses, privilege information, pre-trial applications, memoranda of submissions of counsel and affidavit evidence that may have a bearing on cases yet to come before the Court. So the matter becomes a lot more complex than a mere historical record or what may be considered to be a “dead file”.

Restrictions on Access – Rule 6.9

The final matter that must be covered in this overview is that of the circumstances where there may be restrictions on access imposed by a Judge. These are contained in Rule 6.9 and cover the circumstances where proceedings are on foot, and where proceedings have concluded.

Rights of access are not absolute and may be subject to any enactment, court order, or direction limiting or prohibiting access or publication and also to the payment of any prescribed fee for access. In the case of restrictions imposed by statute, unless the statute provides for access by judicial permission that restriction cannot be overridden by any permissions in the Rules. A court order may be made pursuant to the provisions of the Criminal Procedure Act and other prohibitions upon access or publication may have been made in the course of proceedings. In some cases such prohibitions may have been made as a result of an earlier application for access

In addition there are also a prescribed class of documents to which access may be granted only with judicial permission. These documents are:

(a) any document containing evidence of a complainant or of a person who gives or intends to give propensity evidence:

(b) electronically recorded documents of interviews with a defendant:

(c) any document that identifies, or enables the identification of, a person if the publication of any matter relating to the person’s identity (such as the person’s name) is forbidden by an enactment or by an order of the court or a Registrar:

(d) any document received, or any record of anything said, in a proceeding while members of the public are excluded from the proceeding by an enactment or by an order of the court:

(e) any document containing evidence provisionally admitted into evidence and any document containing evidence that has been ruled inadmissible by the court.

The documents that are specified in clauses (a) to (e) may be accessed with judicial permission. In such a situation, the provisions of Rule 6.10 setting out the matters to be taken into account would be engaged.

Comments

It may be seen from this overview that the only class of documents to which there is theoretically unrestricted access is the permanent court record, any published list providing notice of a hearing, any judgment, order, or minute of the court given in a criminal proceeding, including any record of the reasons given by a judicial officer and a judge’s sentencing notes.

However, even some of these documents may be restricted or may fall within Rule 6.9. Thus it cannot be said that there is an absolute right of access to court documents or any class of them.

Underlying the rules is a theme of judicial discretion which may restrict or limit access to court documents, although it should also be noted that the matters that must be considered by a Judge under Rule 6.10 include principles of open justice and freedom of expression. It is hard to see how the “fair trial” interest would be engaged if a criminal proceeding had been concluded, unless another person’s fair trial right was affected.

One important matter that a Judge must take into account is the person by whom a request is made, the nature of and reasons for a request. If a request is made by a news media representative, issues of openness of court proceedings, fair reporting of court proceedings, freedom of expression and the public interest may well weigh in favour of such an application.

The second matter relates to the method of access. Although the definitions provide for documents in electronic format, the sub-text of the rules is still rooted in the “Print Paradigm”.  Assume that a Court keeps all its records in electronic format. A request is made by a person who sits on the other side of the digital divide. How will the Court effect access in the absence of a computer or some form of electronic device which may read the Court record? That leads to a larger issue. How will access be provided in electronic format? What is the format in which the court “documents” are stored? Is this a format that is readily accessible by an ordinary digital device, reader or computer. Is the format compatible with proprietary reading programs?  If these problems are answered by providing the Court record in .pdf format how will this compromise the underlying integrity of the document and its metadata which may tell a story underlying the content that appears on the face of the document. Those involved in e-discovery will be well aware of the importance of accessing documents in native file format. It could well be that any issues surrounding the provision of court documents or records that are stored in electronic format could pose an obstruction to public access to court records and documents.

The Rules relating to access to court documents and files strike a balance between the principles of open justice on the one hand, and fair trial rights and privacy on the other. When criminal proceedings went through a larger number of procedural changes than are present under current legislation, there was a need for a staged process involving the weighting a different factors as a case proceeded through the system. The simplification of criminal proceedings following the enactment of the Criminal Procedure Act has resulted in a simpler set of rules relating to access to court files and documents.

The IT Countrey Justice

August 2013