Analysing Police v Slater

Have now had some time to go through the 70 page decision, which I blogged previously. There’s a lot of interesting issues there – some of which may affect other bloggers – and even the media.

This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow nonpublication orders. That debate must take place in another forum.

Such as blogs! The furore over Garrett is another example of the fading power to keep names suppressed. It seems that just because he admitted it in Parliament, doesn’t mean one can repeat what he said with immunity. But myself, along with every media outlet in NZ, decided the risk of prosecution was nil as it was the defendant himself who revealed what he had been charged with and got name suppression for.

And even if he had not, it was inevitable it would have ended up in the public domain, We saw this also in another recent case regard issues around a failed marriage of a political figure – the media never stated who it was, but made it very clear from heir reporting.

It is also to be noted that postings on a blog may come from a number of sources and usually include the administrator or supervisor of the blog site. However most administrators or supervisors of blog sites must hold some responsibility for the comments that are posted.

This is a warning that a blog owner can be held responsible for comments made on their blog. Unlikely to be held responsible if you are unaware of them, but if a comment is pointed out to a blog owner – and you refuse to edit or delete it – then you may face some liability.

This poses some dangers to blog owners. Let us say it is announced a politician got name suppression for urinating in public. Someone in General Debate might say “I reckon that is the sort of thing Simon Bridges would do”. Now as blog owner I have no idea who the politician is. If it turns out to be Simon Bridges, then I may be liable for the comment. If Crown Law contacts me and says you should take it down as it is Simon Bridges, then I’d take it down, but readers might then take that as proof it was him. And it means Crown Law have also spread the identity of the person with name suppression.

SO there may need to be some way blog owners can check out details of suppression orders, if they are to be liable for comments made on their sites. But do you allow all 200,000 blog owners to access some register of suppression orders? That may be self-defeating!

However the “conversation” differs from that which may take place over a cup of coffee or across a dinner table. The first difference is that the material that is posted upon the blog is posted primarily in the form of text.

Thus, unlike a conversation, the blog becomes a record which is preserved and available on the blog site until such time as it is removed by the person responsible for administering it.

And presumably this applies to Twitter and Facebook also.

Even if the blog were to be accessible by means of subscription
with a login and a password it could well in my view be subject to the same constraints.

At first I thought this was over-reach, but I then compared it to the Trans-Tasman newsletter which you need a login and password to access. If they broke a name suppression order, they would certainly be deemed a publication.

The Court has jurisdiction notwithstanding the fact that the server hosting Mr. Slater’s website is located in San Antonio Texas in the United States of America. This is because publication of information takes place where the material is downloaded and comprehended.

I don’t like this interpretation, as it effectively implies that if you publish material on the Internet, you are a publisher in every country on earth. This means I may have broken the laws of dozens of countries with my blog.

I believe that it should only be deemed to be published in the country in which the person responsible resides and or where the servers used reside. Otherwise you risk an Internet which ends up governed by the most repressive country.

Of course I can avoid travelling to certain countries, but I don’t want to travel to (for example) Indonesia and find myself arrested for something I said on my blog about Islam (for example).

In addition the evidence is that Mr Slater posted material to the Whaleoil site from New Zealand thus performing an act necessary for the commission of an offence pursuant to s. 7 of the Crimes Act 1961.

Cameron did not deny he uploaded the material. If the site was registered to someone not in NZ, and the uploading was done by someone not in NZ, then there would be little the legal system could do. Lance Wiggs blogs on ths point:

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?

The issue of links is also interesting. Back to that later.

Constable Traviss also gave evidence of a “posting” on Mr Slater’s blog which is known by his “nom d’internet” of Whaleoil.

Heh I think we have a new legal term!

The internet allows everyone to be a publisher.

I do wish people would capitalise Internet.

Many bloggers prefer to differentiate themselves from mainstream media and rather than post what may be described as “hard news” prefer to post comment or articles that put a “spin” upon a particular story or alternatively offer an opinion (which may be of considerable strength and sometimes of pungent articulation).

Did Judge Harvey just call bloggers hot and spicy?

One feature however that differentiates a blog from say, a newspaper, is that a blog occupies a continuum of comment where a particular posting or item may start on one day but may continue and develop over a period of time. In many respects this continuum may have an impact upon the context of the publication or posting.

This is an interesting observation, as it meshes with something I had been reflecting on. Newspapers tend to always write stories to be read “stand alone”. So they will mention background context in every story. So even after their 20th story on David Garrett, they will re-state how he is an ACT MP elected in 2008 etc.

Blogs tends to assume that readers have read what they have said previously, and/or that they follow current affairs closely enough, that they don’t bother to supply all the background detail. This may be one reason why blogs are popular – you get to the meat of the issue.

But it does mean, as Judge Harvey stated, that blogs are more a continuum of comment, and posts can’t be treated as stand alone.

That comment seems to suggest that the effectiveness of an order made pursuant to s 140 is limited to publication in New Zealand. That is perfectly correct.

To suggest that a non-publication order pursuant to s 140 would have extra territorial effect is nonsense.

Of course such orders can not have extra-territorial effect, but in terms of futility, a publication on an overseas blog (or even newspaper) is just as capable of undermining the suppression order.

In the present case the availability of the material from a server located in San Antonio, Texas in the United States has little relevance. The evidence before me is that the material was able to be read and comprehended in New Zealand (thus constituting a publication) and the material was uploaded on the Whaleoil blog by Mr Slater present in New Zealand at the time.

What would be interesting is if Slater had a co-blogger who was based overseas. Would Slater as administrator be liable for what the co-blogger writes on a server is Texas? What if the co-blogger was the domain name registrant?

Judge Harvey himself gets into this:

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).

This is not a definite ruling, but an interesting indication that merely telling someone overseas details of a suppression order might not be an offence. Even if it was, it would be incredibly hard to prove of course.

The fact that the information is available on the internet and accessible to people in New Zealand who may subscribe to the blog or know of the webpage does not present any element of novelty. In 2000 the day after the non-publication order was made in the Lewis Case, Mr. Lewis’ name was published in the Australian newspaper which, a couple of days later, was available in newspaper rooms in New Zealand and probably on the Australian website of the day.

A case Judge Harvey is well acquainted with.

While not relevant to the finding of fact in a particular case, it is relevant to our law makers when reviewing the law.

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 Corley, 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.

This is the aspect that may have implications for bloggers and media. I raised this issue last year also at the R v Internet seminar. Consider a case where say Whale Oil again breaches a suppression order, and this is reported on by media and/or other blogs. In order of decreasing risk, you have possibilities:

1. You mention Whale has (allegedly) broken another suppression order provide a link through to the actual post which allegedly breaches a suppression order.
2. You mention Whale has (allegedly) broken another suppression order and provide a link through his blog, but not the actual post which allegedly breaches a suppression order.
3. You mention Whale has (allegedly) broken another suppression order and on your blogroll you have a link through to his blog.
4. You mention Whale has (allegedly) broken another suppression order and have no links to his site anywhere at all.
5. You mention a “notorious blogger” has (allegedly) broken another suppression order.

All of the above actions could lead to a large number of people finding out the name of a suppressed person.

(1) is something which to my mind does cross the line, and would be unwise to do. But how different is that to (2). If you provide a link to his blog, it will probably be on the front page and discoverable within seconds. So (2) may get you in trouble with the law also.

Then how about (3). The only difference between (2) and (3) is someone has to go from looking at the main body of your blog, to the sidebar with a blogroll, and click through to follow the link. (3) is not far from (2) and (2) is not far from (1).

So how about (4) and you provide no links at all, anywhere on your site. Well, 95% of people who do not know the URL of Whale Oil will go to Google, and his blog comes up first. Same thing if you search on his name only. So I am not sure (4) is very far removed from (3). This would mean that every media outlet that named Cameron or his blog, could be at some risk – especially if they have any links at all in their archives to his site.

But what if they don’t even mention his name, or his site’s name at all. Well even scenario (5) can lead to lots of people who will find out the identity of a suppressed name. You see in this example Whale Oil is so well know as the site which has breached previous orders, that there are probably 100,000+ people who upon reading in the newspaper “A controversial blogger has revealed the name of the /musician/politician/sportsman who did ….” that they will know exactly which site to go to to find out, and then of course tell all their friends.

So maybe the only way to stop it, is to have a law where it is illegal to even mentioned that a suppression order exists, let alone it has been breached. But that is draconian, and would not be accepted. So where do you draw the line?

Some of the charges have a name published under the heading “Interesting Name.” Mr Thwaite argues that this means nothing. Mr Burns responds by arguing that one must look at the context of that particular publication taking into account that further information is available on the blog site relating to the case involving the particular name which has been displayed in another place on the blog site.

Mr Burns argues that because the blog is in the nature of a continuum that it is clear to the reader that the name relates to another article on the site and it is merely a matter of marrying the two.

This brings up an interesting possibility. What if you never ever posted on the actual substantive story relating to a suppressed name, and just posted the name by itself?

Or you can find some other way to refer to the person with name suppression. The mainstream media do this quite often. In one story they report an entertainer has been granted name suppression, and in another they report that so and so has been dropped from TV. Will they get treated as a continuum  or only blogs?

Similarly with the pictogram. The information can be decoded in the same way that an aggregation of information may lead to the identification of a person by way of a process of elimination – another form of interpreting a particular code or solving a puzzle. The use of phonetically coded information (which is how the pictogram resolves the name) is not unknown to Mr. Slater. I venture to suggest that the words “Whaleoil Beef Hooked” on the “masthead” of his homepage provides an example.

Ha. I wonder how many times the Judge had to try it out loud with an Irish accent before he worked it out – it took me a few goes 🙂

Mr. Slater also maintains a certain amount of control over the content that is published. He was asked “You’ll just publish it anyway?” He replied “If I agree with it. I won’t publish something I don’t agree with” – an ironic answer in light of the freedom of expression argument which his counsel has advanced.

Not really ironic in my opinion. In the comments section, Cameron does allow contrary views to be posted all the time – in fact I’ve never known him to censor a comment. His comments were, I suspect, referring to what appears on the front page or main posts of Gotcha.

The evidence is also clear from some of the posts by Mr. Slater that his campaign was going to go beyond legitimate protest and criticism and was going to enter the realm of “electronic civil disobedience” by the publication of certain names that were the subject of non-publication orders.

I quite like that term “electronic civil disobedience”!

The judgement answers a number of questions about our name suppression laws and will I imagine be cited often in the future.

It does however leave unresolved potentially larger questions for the future – such as liability for linking, and whether communicating suppressed details to an overseas blogger would be an offence. Of course that is because those questions did not have to be answered in this particular case.

I look forward to seeing what changes to name suppression laws are proposed by the Government, in response to the Law Commission’s report.