Name Suppression and Dogs

Mike O’Donnell has a very good article about the state of Name Suppression in New Zealand:

Dogs of a different sort made the news recently when for the first time a New Zealand judge granted name suppression for two flash Auckland pooches that were at the sharp end of a Family Court wrangle involving a male senior political figure, his new partner and his ex-wife.

Allegedly the ex-wife staged a dog napping on a well-to-do street. When not only the humans in dispute get name suppression, but their pets as well, it’s hard not to think the world’s gone mad, or at least the law is barking up the wrong tree.

There are two main motivators to anyone, or anything, getting name suppression. The first is the protection of the complainants or victims, particularly the young and the vulnerable (for example, a child victim in a sexual offending case). The second is the genuine belief that publishing of identities will prejudice a fair trial.

It’s hard to work out how either of these would apply to a couple of pampered pooches. At a more serious level the case is likely to be symptomatic of a system where the rich and famous seem to have more success in getting name suppression granted than normal people. This was part of the stimuli for the Criminal Procedure Reform and Modernisation bill and its proposals aimed at making it harder for high-profile individuals to get name suppression. The bill also specifies the liabilities for information transmitters or content hosts (both of which it labels Internet Service Providers).

Mike has missed the point somewhat. This case is being heard in the Family Court and all Family Court proceedings are subject to suppression orders.?Ostensibly?this is to protect children and so this case does bring the issue to the fore about ongoing secrecy with regards to Family Court matters especially when there are no children involved. Simon Power’s wishy-washy re-write of the law still won’t address the Family Court issues surrounding name suppression.

The bill makes it clear that websites that host user-generated content must remove material that breaches name suppression once they become aware of it (in a clause largely copied from the 2009 Copyright Act amendments). The key question is, how does a responsible ISP get confirmed knowledge about secrets?

This is a concern. Like the stupid Copyright legislation which also had Simon Power as the architect this is fraught with danger. It seems our politicians cannot grasp the concept that the internet was designed purposively not to be controlled, by?politicians?or anyone else. If the government of the USA cannot prevent secrets from being leaked and published on the internet, and the governments of Egypt, Libya and Syria couldn’t shut the internet down then how on earth?do?our politicians even pretend to think they can here.

Bill promoter Justice Minister Simon Power believes that a name suppression register might provide the answer. Subsequently, he asked the Justice Ministry to consider options for such a beast and, in particular, how a national electronic register of suppression orders might work.

Such a task will not be straightforward. An open approach will necessarily not be able to allow for search by name or alleged crime as to do so would violate the very order it’s trying to uphold. This means unless you know what you are looking for, you probably won’t find it.

On the other hand, a more closed approach is contrary to the vibe of “an open source internet” that ICT Minister Steven Joyce has championed. There’s also the challenge of determining who has access.

A Register of Secrets. The whole concept is laughable and the very real concern is just who has access.

A simple question when New Zealand consisted of 40 newspapers, three radio networks and two TV channels; a much harder one when it consists of thousands of parajournalists, bloggers and online content hosts who provide message boards and chatrooms that hundreds of thousands of people post on every week.

Precisely, however fools like Simon Power just can’t help themselves in their attempts to control everything.

There’s a convincing school of thought that says in a world where everyone can be a publisher and content host, the only way to effectively manage name suppression is to do away with it, except for protecting the vulnerable. A recent Victorian Court of Appeal finding ( 3843 of 2010) in respect of name suppression in the case of Tony Mokbel (known to most as a protagonist in the Underbelly series) seems to reinforce this.

In overturning the internet suppression order previously granted by Victorian District Court, the appeal judges noted that there were four qualities that made internet news coverage unique. These were: it was permanent; its publication lacks a specific location; it is only available by searching; and it can be cut and pasted far and wide.

Given the uncontrollable nature of the internet, they felt that rather than wasting time trying to control it, the trial judge’s best tool to prevent unfair trials was an appropriate reminder to the jury that they cannot carry out their own research, and a firm direction to act only upon the evidence placed before them at trial. They also noted that jurors must comply with their respective legal obligations as well as judicial directions given during a trial, and it worked pretty well.

The court in Victoria has got it right. They know they can’t stop information from being shared. It is a pointless exercise.

What I want to know is this however, how on earth does Politician X call the freakin’ dogs when they are running around the park if their names are suppressed, which is the final point that Mike O’Donnell makes:

When our family dog does die it’s likely my nine-year-old daughter will blog about it, and enable comments. According to the Criminal Procedure Reform and Modernisation bill this will make her an ISP and give her the associated liabilities around name suppression. I just hope no- one makes comment about the name-suppressed pooches. That really would be a bit ruff.

The law is dog’s breakfast, which isn’t a surprise considering Simon Power drafted it.