Google ‘thumbs its nose’ at NZ’s courts

Refusal to obey suppression orders threat to fair trial rights, says lawyer

Tech giant Google is under fire for “thumbing its nose” at the courts by refusing to take down online content which breaches judicial orders. In high-profile cases covered by the 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 Cali- fornia’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 takedown 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 Auck- land 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 . . . on the web, but also those which are subsequently created” that breached the court orders. The Times newspaper also found Google internet users were able to identify rape victims whose anonymity was protected by law in an identical way to New Zealand.

The British paper said Google’s automated search functions and its algorithm directed users to names associated with their search, often after people have been illegally identified on social media.

The same issues plague New Zealand cases, evident from Google searches for suppressed information conducted by the Herald.

Despite the findings, 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 of.”

He said although 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.

He said that if a court forced the removal of an article the search engine would be able to reflect its removal the next time its robot “crawls the page” and refreshes the Google index.

However, he asked those who still found content on Google which may violate a law to inform the company.

Prominent human rights and priv- acy lawyer Michael Bott said Google was “thumbing its nose” at court orders, threatening fair trial rights and due process.

But Bott accepted it was a “fine line” between trying to control Google, like China does, 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 may be true, but it also ignores the reality of the internet,” he said.

He believed an international protocol involving tech giants and Western judiciaries could be an answer to keep free speech and prevent court orders from being eroded.

“It’s a direct attack on the sovereignty of our courts and there has to be a way to address that,” he said.

Netsafe chief executive Martin Cocker said complaints about jurisdiction arose regularly from Kiwi internet users, but often Google was not the culprit.

He said Google was protecting its right to index everything on the internet and to “not be an arbitrator of what you should and shouldn’t see”.

“There’s absolutely valid reasons why the law attempts to protect people’s identity or privacy and that can’t always be applied to the internet spaces,” he said.

Netsafe, while not an enforcement agency, could help people get at least a partial resolution quicker than the courts, he added.

“These multinational-based services . . . are based somewhere and therefore they must be governed by the laws of the place they are based.”