Enforcing court-ordered secrets
Did the Grace Millane murder trial expose faults in New Zealand’s suppression laws?
The integrity of our justice system appears under threat. Months before Grace Millane was murdered and Google’s startling email to Kiwi users announced who her accused killer was, the Herald reported that information suppressed by the courts in highprofile cases could be easily revealed with a simple search for key terms.
Suppressed information could also be discovered with Google’s auto-fill function prompting and pointing users towards such material.
It is a problem not isolated to New Zealand, with the Times of London also finding Google users were able to identify rape victims.
When the breaches emerged, the Silicon Valley giant was accused of “thumbing its nose” at New Zealand’s courts.
Our privacy commissioner said it was of “considerable concern” to the country’s judiciary and Parliament if any organisation was unwilling to follow court orders.
And former Justice Minister Andrew Little said the findings were concerning.
Google said it was “not in the business of censoring news”.
It 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” which breached court orders.
Just this month, and before Jesse Kempson’s suppression was lifted yesterday, Google’s auto-complete predictions continued to reveal the killer’s identity.
The same has occurred on Twitter’s search function, while Facebook showed users hundreds of posts, comments, hashtags and photos of Kempson.
The Court of Appeal’s President Justice Stephen Kós said: “His identity has been published. You put his name into a computer and you find it.
While the New Zealand media deserved credit for obeying suppression orders, “these orders have not been effective in overseas jurisdictions”, he said.
Newly appointed Justice Minister Kris Faafoi said there were no current plans to amend legislation relating to suppression.
“We consider the current legislative settings are appropriate, including with respect to when suppression is or can be granted, and penalties for offending,” he said.
Justice officials and other agencies were in discussions with the likes of Google, Facebook, and Twitter, about how breaches of suppression can be found and removed, Faafoi said.
Currently, a person or organisation overseas cannot be prosecuted unless it has a New Zealand-based presence or a person could be extradited.
But extradition is for offences punishable by 12 months jail or more. Penalties for suppression breaches have a maximum term of 6 months.
To date, only Auckland businessman Leo Molloy has been charged, later pleading guilty, for naming Kempson online. He is due to be sentenced next year.
Faafoi said discussions with Australia, UK, Canada and the US about finding a way to enforce New Zealand court orders is “a longer-term piece of work”.
Kempson was named in the UK press and on social media after his first appearance.
At the time, Little said the breaches could jeopardise a fair trial.
“It will not do justice to the Millane family if the accused in this case gets to walk away from facing justice because somebody else has disclosed his details,” he said. Google NZ said it didn’t act to block Kempson’s name until its own processes sent a notification about the suppression order – four days after it was made by the judge. The search giant gave an undertaking to the government it would review those processes.
In January 2019, Ardern raised the issue again at a dinner with Google executives at the World Economic Forum in Davos, Switzerland.
However, in July last year, Little said Google was “flipping the bird” at New Zealand law after Google said there was no plan to change any of its systems. Google ultimately apologised and suspended the what’s trending system here after more pressure from Little. New Zealand Police also revealed it warned Google about its name-suppression breaches.
However, despite all the talk, promises and apologies, Google was again under fire just before Kempson’s trial for failing to remove links revealing his identity.
It appears the issue of enforcing suppression in the internet age will continue.