KEY POINTS:
(1) Yesterday morning in the District Court at Manukau, I made a partial non-publication order relating to the publication of proceedings before the Court on 25 August 2008 in regard to this matter.
(2) One of the accused is a young person within the meaning of the Children, Young Persons and Their Families Act 1989. He is jointly charged with the adults for some of the offences but has not been charged with murder. The provisions of section 438 of that Act apply and there is a statutory prohibition against the publication of the name of the young person or any details that might lead to his identification - see section 483 (3) of the Children, Young Persons and Their Families Act 1989. The adult accused cannot seek nor do they claim the protection of that subsection.
(3) Because the adult accused have been jointly charged with the young person in respect of some of the offences this hearing was conducted in the Youth Court. Because of the public and media interest in this case I exercised my power pursuant to section 483 (1) of the Children, Young Persons and Their Families Act 1989 to grant leave to the media to report the proceedings. I also granted permission for the family of the deceased to be present in Court.
(4) The intent of the order was that contemporaneous broadcasts or publications could be made in traditional news media - there could be publication in a newspaper or broadcast as part of a television news programme, or as part of a subsequent in depth story at a later time. The scope of the suppression order related to the publication of any accounts of what took place in Court on the internet by way of on-line news publication or stored video, which can be replayed or accessed at a later stage. The scope of the order would allow for a contemporaneous broadcast of an account of what took place in Court, say, on a news broadcast such as Morning Report or Checkpoint, or an hourly bulletin but would not allow for the retention of the audio file which could subsequently be made available on the internet so that the content could be listened to on a date other than the date of the broadcast,
(5) The intent of the limited order was to ensure that at a later stage, any concerns about a fair trail would not be prejudiced as a result as the availability of information stored on the internet. Potential jurors could, if such material were available, have reference to it which could well have an adverse affect upon a fair trial. Contemporaneous or, what could be called, "traditional" publication is not prohibited. However, digital technologies introduce the concept of the "information that does not die" in contra distinction to traditional news media, in respect of which information may be available only as long as the newspaper lasts or the television or radio broadcasts are recalled.
(6) I now set out the reasons for this decision as they were only outlined and not articulated in detail in Court.
(7) Digital technologies present new challenges to traditional concepts regarding the availability of information. The provisions of the Criminal Justice Act 1985 (section 138 and following and especially section 140) relating to non-publication orders were devised long before the advent of the internet and five years after the introduction of the personal computer. The cases that have been decided about the circumstances under which non-publication orders have been made have all been within the context of traditional print or broadcast media. The information about a case has usually been made available in a newspaper or on a radio or television broadcast.
(8) A quality of these media is that of immediacy - information is communicated at a particular point in time. In the case of a radio or television broadcast the attention of the viewer or listener is required to comprehend the information communicated. If for any reason the attention of the audience member is distracted, the level of comprehension of the information may be less. In the case of a newspaper story, the ability to read and comprehend the information depends upon the length of time that the newspaper is available to the reader. Often this will be during the day of publication. In some cases newspaper readers will keep clippings of articles for future reference. But in the main the adage that today's newspaper is tomorrow's fish and chip wrapping applies and the information is not preserved. The ability to keep and review a newspaper clipping is not available to the person who videotapes a news programme for viewing at a more convenient time - know as "time shifting". The provisions of s 84 of the Copyright Act 1994 provides:
84 Recording for purposes of time shifting
(1) The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling the recording to be viewed or listened to at a more convenient time does not infringe copyright in the broadcast or cable programme or in any work included in the broadcast or cable programme.
(2) A recording that is -
(a) Made under subsection (1) of this section; and
(b) Retained for any longer than is necessary-
(i) To enable the recording to be viewed or listened to at a more convenient time; and
(ii) If the person who viewed or listened to the recording wishes to make a complaint, to enable that person to prepare and despatch a complaint, including the recording, to any person or body having responsibility for dealing with complaints about the content of broadcasts or cable programmes or advertising contained in broadcasts or cable programmes -
infringes copyright in the broadcast or cable programme recorded and in any work included in the recording, and shall be treated as in infringing copy.
Thus the Copyright Act 1994, for reasons entirely divorced from issues of non-publication, prevents the archiving of recorded broadcast material.
(9) New communications technologies possess new and often challenging properties. Elizabeth Eisenstein in her work The Printing Press as an Agent of Change: Communications and Cultural Transformations in early-Modern Europe (1979) identified six particular properties that printed material possessed that were absent from manuscript publications. One of those was what she described as the preservative power of print. The number of copies of a text that the press made available together with the disseminative properties of print meant that information was more likely to be available for longer to those who required it. Although Eisenstein was writing about the printing press as an agent of change of intellectual activity in early-Modern Western Europe, her identification of the properties of print is instructive for it assists us in considering the way in which new communications technologies differ from those that precede them.
(10) Digital technologies exemplified primarily by the various protocols associated with the internet provide a significantly greater preservative and disseminatory power than print. The internet enables every user potentially to be a publisher. The convergence of various communications technologies into the on-line space allow not only for print, but also for sound and for video to be available from the one source of information and present opportunities for the news media that were undreamed of in pre-digital technologies. Newspapers can run on-line editions which may be and are updated on an hourly basis. Television stations are able to provide in-depth video coverage through a website that time constraints prohibit from broadcast on the six o'clock news. Radio stations are able to offer listeners the opportunity to hear what they want to hear when they want to hear it in much the same way as "pay for view" television offers the "My Sky" package with the dramatic difference that for the news media delivery is via the internet and for the consumer the information is free.
(11) Finding information on the internet has been a problem from the days before commercialisation in the mid-1990's. The problem has not been completely solved. Many search facilities or "search engines" require an understanding of search language that average internet users do not possess. For many users this problem has been solved with the search website known as Google. Google's sophisticated search software and indexing processes allow information to be found with relative ease. Thus if one is seeking information on a particular topic the use of Google from the comfort of one's own home brings the information to hand immediately. No longer need a person have to go to the newspaper room of a public library to research a particular story. Video clips from television news shows may be viewed from the television station's on-line archive. Current affairs research capabilities have reached a stage unequalled in communications history.
(12) On the other hand there are disadvantages. Although information may sometimes be hard to locate or may have moved from one web address to another, it never really "dies". Once information is available on the internet it is potentially there indefinitely. Information takes on a "viral" quality. It has a tendency to spread. Video clips may be made available not only on news websites but on You Tube. Information may spread from newspaper websites to "blog" sites and on such site may be the subject of comment, editorialising and opinion. ("Blog" is a shortening of the words Web Log and are websites where individuals may post commentary on events or present the world with an on-line diary and also invite comment from other web users). There are even websites that provide an archive collection of a particular website at a particular point in time. The internet archive (www.archive.org) provides an archive of 85 billion web pages. Website pages for TVNZ, for example, are archived back to 10 January 1997. Not all the content may be present and much of it is not, but the example given demonstrates the power of on-line systems to preserve information and to make it available on demand.
(13) Given the present technology a viewer who has missed a news story on the six o'clock news need not worry whether the video-cassette recorder was functioning properly. The video clip and/or the text of the story may be accessible on-line from the TV channel website. If a person has not had the morning newspaper delivered, it is accessible at the breakfast table on a laptop. The information so obtained is also available for days, weeks and months later enhanced by search facilities that are built into the TV or newspaper website. The transitory recollection of information derived from a perusal of the morning newspaper or a viewing of TV broadcast news may be enhanced and refreshed by accessing the on-line information.
(14) For citizens who wish to research news stories, frequently a newspaper website will contain links to similar articles dealing with the same story as it has developed or with similar information. But for the justice system this poses some problems. Although prior to the internet the focus was upon the open justice system with the news media as the surrogates of the public (see R v Liddell (1995) 1 NZLR 538 ; Lewis v Wilson & Horton (2000) 3 NZLR 546) there was as a property of pre-digital news media a form of "partial obscurity". The general information that was published or broadcast might be remembered but not in detail. There may be a vague recollection of a photograph or an image but the opportunity to go back and check the detail or the image was not immediately available.
(15) The internet challenges these presumptions. Information that drifted into the partial obscurity of what Sir Edward Coke referred to as "slippery memory" (Preface to Les Reports de Edward Coke (1600)) can now be recalled and viewed as fresh as it was on the day it was first published. News media video can be played and replayed again and again and can be enlarged to catch detail. Information based on a name or an address can be entered into Google and if the information is there, Google will return it. This causes special problems when it comes to whether or not an accused will have a fair trial before a jury who rely not only on the information that is put before them by way of evidence but who may, despite stern warnings from the Bench, seek out information using the internet or Google. Even more disturbing, it may well be that events or further confirmed factual information may have overtaken the validity of some of the assertions or speculations that may be made in early news stories.
(16) Thus it is important to weigh the interests of the public who have a right to know what is happening in the Courts and the rights of an accused person to a fair trial. There must be a transparency of process and a proper opportunity for the public to be informed. The presumption is in favour of publicity and the news media are the surrogates of the public in this regard. At the same time the accused is entitled to come before a jury who will have access, of course, to the evidence which they hear in Court but who should not have access to the vast preservative information library of the internet from which, if information about the case is there, may be found. The same applies to those who may be potential jurors in the case.
(17) It is with these tensions in mind that I have striven to strike a balance - to ensure the public's right to know, but to protect the right to a fair trial based on evidence heard only in the Court. There is no cause to prevent publication in the traditional mass media and no non-publication orders were sought. However, for the reasons given I consider that the internet presents an entirely different proposition to that posed by traditional mass media and it is for those reasons that I have ordered that there be no publication of the names or images of the accused on internet based news dissemination sites.
