NZ Herald editorial: Finlayson bill protects judges too much

The bill is unfinished business for Chris Finlayson who tried to get legislation drafted when National was in power. Photo / John Stone

Editorial

Former Attorney General Chris Finlayson, now an Opposition MP, has put forward a private member's bill that would limit the criticism judges can face in the media, especially social media. The bill would strengthen the law of contempt of court against several threats to justice from the internet, but it is the protection of judges that deserves most comment.

Judges have always needed a thick skin. They are sworn to uphold the law and the principles of justice without fear or favour. They cannot expect their rulings to be always popular and ought to be indifferent to poorly informed criticism. At times that sort of comment on social media will stray into "untrue accusations" that the bill would make liable for hefty fines.

Finlayson is concerned that some abuse of judges is calculated to intimidate them, individually or collectively, and he thinks it can do so. "Such abuse is capable of undermining the rule of law," he says. "Judicial independence and impartiality is at the heart of the rule of law." An Attorney General gets to know the Judiciary very well. If Finlayson is convinced our current crop of judges is capable of being intimidated by unfair and untrue accusations online, it is worrying indeed.

People in many branches of public life are accustomed to unfair and often untrue accusations in the sumps of ignorance and bile that can be found on the web. But common sense, rather than the law, is the only practical response to the rubbish. Common sense says intelligent people will not take much notice of scurrilous material on sites that have no reputable news-gathering organisation behind them or no credible named sources of their information.

The law is not the best response. If the originators of false accusations online can be found, an action against them for contempt of court will only draw added attention to their claims and a fine of up to $25,000 would only make a martyr of them in the eyes of those predisposed to believe them. The law of defamation exists for those hurt by false accusations of a personal nature. The law of contempt of court exists to protect the integrity of the judicial system rather than judges personally.

The other provisions of Finlayson's bill would define the law of contempt more clearly and set tough penalties. Publishing information that could prejudice an arrested person's right to a fair trial could carry six months imprisonment or a fine of $25,000 for an individual, $100,000 for an organisation. Wilfully disrupting court proceedings could be punished with a $10,000 fine or three months in prison. A juror who goes online to research information relevant to the case could also be fined $10,000 or imprisoned for three months.

This is unfinished business for Finlayson who tried to get legislation drafted when National was in power. If his bill passes its first reading Justice Minister Andrew Little, says he will propose the new Government take it over. But not so fast. Our courts and judges enjoy high regard, partly because they function in a free country where their decisions can be criticised, not always fairly. If they are intimidated they are in the wrong place.