Name suppression – the judge’s findings and how to do it properly

Whale Oil failed in his case (at least so far) and is up for some eight thousand of dollars in fines and fees. To me it was clear that his actions were breaching the law, but it’s the considered opinion (Thanks Kiwiblog) of Judge Harvey that really matters here:

“The remaining nine charges having been proven to the standard required by law, the defendant will be convicted.”

Important findings from Judge Harvey (and no, I am not a lawyer):

• It’s now even clearer that writing something on a blog is deemed as publishing, especially if you live in NZ when you do so. That much was already obvious, and it is nice to see it spelled out.
• The Judge was less than clear on assigning blame for comments on the blog, but he did say that Whale Oil  was “the person who enables the posting of content by both himself and others” and so therefore is the publisher. The Judge referred to blog articles though, and not to comments in the decision document. He did say earlier that “However most administrators or supervisors of blog sites must hold some responsibility for the comments that are posted.” This is an interesting area that creates a lot of concern in big media. Reading between the lines, and again not as a lawyer, I’d say that post-comment moderation is ok – either doing as Trade Me does and moderating after it has been flagged by readers or seen by the blog owner. I also see little tolerance from the Judge for leaving up comments that are in breach of the law, especially after being notified. Even WhaleOil readers now have the ability to vote down comments.
• The judge makes it clear that hiding a blog behind a password doesn’t help the cause – it’s still likely to be deemed as publication.
• Writing in text speak or any other language or using pictures or codes won’t help either.
• Linking to offending information is probably the same as publishing it yourself.
• The name we refer to ourselves online is now our ‘nom d’internet‘, a phrase Judge Harvey coined for the decision. Nicely played.

Overall – we have been warned. Whale Oil’s fine is pretty small in the scheme of things, suffering perhaps from a lack of inflation adjustment – with the maximum of just $1000 per case. The judge ruled that $750 per case was payable, plus $130 per case in costs. That’s a lot of money for Slater, but not so much for a media company. I wouldn’t want to test it though.

Judge Harvey also noticed, as I hadn’t, that Whale Oil’s tagline “Whaleoil Beef Hooked” has another meaning when said out loud. A fine legal mind.

However the Judge does give a hint about how to legally release suppressed names:

Off-Shore Publication of Suppressed Names
[78]    There can be no doubt that the internet poses challenges to the effectiveness of suppression orders. The position of a person in New Zealand who posts a name the subject of a non-publication order on the internet is clear for the reasons that I have given. But what of the person (A) who makes a suppressed name available to a person (B) beyond the jurisdiction, and B posts the name on a his or her blog or website in a country other than New Zealand? Without specifically deciding the point, according to the decision of Hammond J in Re X the communication between A in New Zealand and B overseas could fall within the concept of a private conversation between individuals and may therefore would not fall within the scope of s. 140(1). Furthermore, the act of posting to a blog or a website by a person overseas (B) could not in those circumstances be caught by s. 7 of the Crimes Act 1961.

In essence, if Whale Oil sends an email to a site hosted in anther country, and that site’s owner considers that the details are fit for publication, then perhaps that site could publish and not be damned. Whale Oil would simply be having a 1-1 conversation with the author of the site, who resides overseas. However it’s not so easy:

[81] Much may depend upon the state of mind of person A in communicating the information to person B. Such behaviour could well mean that A could fall within the second limb of s. 140(5) evades or attempts to evade any such order. As I have said, this point is not decided and much would depend upon the detailed facts of the case.

Meanwhile the publication clearly reaches (and is targeted towards) New Zealand, and linking to from a locally written blog could be dangerous as the Judge pulls out the notorious DeCSS debacle:

[82] Following from that is the New Zealand based blogger who may embed a link to the off-shore blogsite which contains the suppressed name. One should be cautious in such circumstances that one does not become involved in publishing by way of hypertext link. In the case of Universal City Studios v Reimerdes and Corley34 a Court made an order that the defendant’s website was prohibited from directly providing files which contained the DeCSS code which enabled the circumvention of copy protection algorithms on DVDs. When the defendants posted links on their websites to other sites that provided DeCSS either by way of direct download via the link or by means of an extra few websites, the Court held that utilising this device was a distinction without a difference to offering a direct download. I have no doubt this point or something like it will fall to be decided in this country in some future case.

For those that don’t remember, the internet world responded to this decision with derision, and published the offending code in a multitude of different ways. Indeed the author of DeCSS itself was acquitted in Norwegian court. So no links.

But back to NZ name suppression. What if the author of the overseas site is unknown? What if the site is hosted in multiple places around the world? What if the site that received emails and published names was Wikileaks.org? What if there was a global site called NameSuppression.org, with a nz.NameSupression.Org sub-domain? The owners could be shadowy, the location ever in doubt and the publisher untouchable.

It can’t be long before this occurs, and then what shall we do in New Zealand? Block the site as the Australians tried to do with Wikileaks? Go after anyone that links to the site?

It’s an interesting conundrum. Judge Harvey has set the stage well.