Google and other problems with NZ suppression law

Court suppression orders are difficult to deal with in the Internet age.

In the past media like newspapers had court reporters who were aware of what cases were suppressed and complied with suppression orders where appropriate.

But social media has introduced major problems – it is easy for just about anyone to say things (publish) online, but it is impossible for most of us to know what is suppressed, so we don’t know what can’t be legally published.

And another big problem is that major online content providers/publishers are based out of New Zealand, like Google, Facebook and Twitter. And Google says they are not bound by New Zealand law.

NZH: Google ‘thumbs its nose’ at New Zealand courts – lawyer

In high-profile cases covered by the Herald in recent months, Google NZ along with New Zealand’s major media outlets have been served with orders which suppress details and require the removal of content that infringes on privacy or fair trial rights.

However, Google says it’s “not in the business of censoring news” and won’t comply because its search engine is bound by the laws enforced at its home, the Googleplex, in California’s Silicon Valley.

The result means some information suppressed by New Zealand’s courts can be revealed in a Google search.

The problems and Google’s place in New Zealand’s courtrooms was an issue last year during the High Court retrial of double-killer Zarn Tarapata.

An interim take-down order for all content related to Tarapata’s first trial was made to protect his fair trial rights and suppress evidence which was ruled inadmissible.

The Herald and other media organisations opposed the order but were ultimately forced to comply and removed stories about Tarapata’s first trial to avoid being held in contempt of court.

However, despite having an Auckland office, Google NZ said it couldn’t remove details of the stories from its searchable records.

In an affidavit to the court, Google NZ software engineer Joseph Bailey, wrote: “Google New Zealand Limited has no ability to comply with the interim orders.”

He explained that the Google search engine, Google LLC, was a separate legal entity incorporated in the US, meaning New Zealand’s courts and laws held no power over it.

The company also said it would require a “perpetual review” to find the “trillions of webpages currently existing on the web, but also those which are subsequently created” that breached the court orders.

…a Google spokesman said: “We don’t allow these kinds of autocomplete predictions or related searches that violate laws or our own policies and we have removed examples we’ve been made aware.”

He said while Google NZ was bound by New Zealand laws, Google LLC was not.

“Google LLC prefers for news publishers to make their own decisions about whether their content should be available online,” he said.

Even for small publishers it can be a daunting task trying to monitor all content, especially when not knowing what is suppressed by court orders.

Prominent human rights and privacy lawyer Michael Bott said Google was “thumbing its nose” and “expressing a high-degree of arrogance” at court orders, threatening fair trial rights and due process.

Bott accepted however it was a “fine line” between attempting to control Google – like China – and protecting the foundations of a liberal democracy.

“In a liberal democracy we have the rule of law. If Google doesn’t follow take-down orders on the basis that it’s an international company based in California, well that maybe true, but it also ignores the reality of the internet,” he said.

But there’s another significant problem – take down orders, even if you can get one, can take quite a bit of time, and even if successful can be like shutting the stable door well after the story has bolted around the Internet.

I think that most people accept that suppression in some cases is important, especially when protecting the identity of victims of crime, especially children.

But I think that protecting the right to a fair trial via suppression can be virtually unworkable in the Internet age. Courts need to find a different way of dealing with this.

While I understand the argument for protecting rights to a fair trial i think that it needs to be reviewed, taking into account the practicalities of the use of the Internet.

There was recent example of failed suppression in Dunedin recently when a young woman was murdered. The name of the accused was published and circulated in social media before a suppression order was issued by the Court.

I have personal experience with abuse suppression in the courts. It was used to gag me while running an online campaign of harassment and defamation against me online, and if I confronted this online I was threatened with prosecution for breaching suppression, while the group attacking me claimed immunity because they claimed their publications were not in new Zealand, so therefore immune from New Zealand law.

So they used New Zealand law to gag me, while publishing offshore to avoid new Zealand law.

I am still gagged on this. I hope that that will be ending soon, but given the blatant hypocrisy of those involved they may try to keep their legal and personal abuses secret.

The Google (and Facebook et al) problem with suppression is not adequately addressed by New Zealand law and court practices, and neither is the use and abuse of suppression on a smaller and wider scale.

 

9 Comments

  1. Alan Wilkinson

     /  May 23, 2018

    Suppression orders are used haphazardly and unfairly IMO. Accused and accuser get different rules.

  2. NOEL

     /  May 23, 2018

    I agree. Name suppression for everyone until convicted. After conviction very limited use.

    • Kitty Catkin

       /  May 23, 2018

      I agree, too., especially in sex cases. And I really hate the way that court cases are filmed as if they were courtroom dramas. What’s the point ? It’s just catering to the voyeurs.

  3. Missy

     /  May 23, 2018

    So, Google claim that they because they are based in the US they don’t have to comply with NZ law, despite operating in NZ. I thought that the law applied to all companies operating in a country, not to where they are based.

    It is interesting that despite being based in California Google are able to comply with EU data protection law, but not able to comply with NZ suppression law….

    • Callum

       /  May 23, 2018

      Google NZ is not the same as the Google search engine, a separate company with no presence here. They are not publishing any information but the court is trying to force them to prevent content published by others being found. The data protection laws are different and relate to information held by Google about individuals.
      The right to be forgotten laws are more comparable, once again though they create major difficulties in practical enforcement.

  4. George

     /  May 23, 2018

    There are countries (Not the US) where information has been stored and published that was banned in other countries.
    And then there’s the dark web if you really want to go to extremes

  5. Ray

     /  May 23, 2018

    It is worth noting that the USA manages to run its Justice system without name suppression laws.
    If you considering that there is such a short chain of degrees of separation here in NZ you have to wonder why we bother.
    https://en.m.wikipedia.org/wiki/Rape_shield_law

    • Kitty Catkin

       /  May 23, 2018

      A young man in Hamilton was accused of rape and acquitted. In the meantime, his face and name were broadcast, both in the paper and on television. It must be dreadful enough to be wrongly accused without that.

  6. TC

     /  May 28, 2018

    This is not an accurate summary: “The Herald and other media organisations opposed the order but were ultimately forced to comply and removed stories about Tarapata’s first trial to avoid being held in contempt of court.”

    The media complied with interim orders, but successfully opposed the imposition of permanent orders and were accordingly entitled to reinstate all material.