NZ Judge Bans Net Naming of Defendants

In making what has been dubbed as an “unprecedented ruling,”[1] a New Zealand Judge banned the publication of the names of two men charged with murder on internet-based news sites.  By allowing the names to be published in print, radio and television platforms, Judge David Harvey distinguishing between the internet and the aforementioned media based on concerns that people could easily access information on the accused indefinitely through the use of web-based search engines.

Opponents may challenge the ruling by citing the right to freedom of expression, which is constitutionally enshrined under section 14 of the New Zealand Bill of Rights Act 1990.[2]  Section 15 of the Act, however, stipulates that this right is subject to reasonable limits.  In examining the characteristics of different media, Judge Harvey’s ruling emphasizes the necessity and justification of banning the publication of the defendants’ names on the internet, while allowing publication of the same using other formats.  Despite its valid justification, however, the actual enforceability of this ruling remains an open issue.

The primary difference between the internet and other forms of media, such as print, radio and television, can be attributed to the breadth and longevity of the transmission.  Information disseminated through print is relatively narrow in its circulation and is limited by the physical nature of the medium itself.  Information sent through radio and television can be widely broadcasted, but is short lived, as once a message is sent, it ceases to exist.[3]  As those media are limited, the internet, on the other hand, is unhindered in these aspects by having the capability to widely disseminate and store information indefinitely.  While it is entirely possible for a person to obtain an archived newspaper or television/radio broadcast, the effort exerted in obtaining this information far exceeds that of simply searching on the internet, as information can rehash itself with a literal click of the mouse.  For this reason, the popularity and sheer ease of “Googling” someone’s name effectively creates an environment where information about the accused would thrive and endure much longer than in print, radio or television.  The stigma of being accused of murder, even if the defendants are found innocent, could therefore persist far beyond the trial, thus creating a valid justification for this ban.

While the ruling itself may be justified, its enforceability remains an issue.  Legal authority can be found in University of Newlands v. Nationwide News Pty Ltd.,[4] where the Supreme Court of New Zealand enforced a defamation proceeding against the defendant for its website based outside of New Zealand.[5]  In this decision, the court ruled that the tort was committed where the information was downloaded, not where the website was based.[6]  Regardless, even with legal authority, practical enforceability remains an issue.  The significant costs of litigation are substantial barriers and this would only increase where a court would be embroiled in extra-jurisdictional matters.  Therefore, despite valid reasons for issuing this ban, the practical effect may be the same as it not existing in the first place.