Suppression ruling breaks new ground for unsocial media
On Thursday afternoon, the long, long court process in the Labour youth camp case came quietly to a close, with the Court of Appeal granting permanent name suppression to the young man accused (and discharged without conviction) of assault charges.
It was one of those moments that could change the practice of criminal law when it comes to name suppression. It was reported in the mainstream media but you may have missed it nonetheless. The 21-page document did not exactly light up Twitter or Facebook.
It’s deeply ironic that the people who will be most outraged by this decision (except perhaps for the complainants, more on that later) are the ones whose actions made sure this young man’s name will never be known. One might even laugh, if it were the least little bit funny.
Court decisions are complex and detailed, but here’s the guts of this one; for the first time in a New Zealand court, the true, feral, unsocial nature of social media has been examined, and found to be the main reason why it would be unfair to make the young man’s name public.
The court acknowledged the threshold for permanent name suppression is justifiably high, and open justice is a crucial part of our judicial system. That means wherever possible, mainstream media outlets are permitted to report the names of those accused of crimes.
The courts feel safe to do that because there are safeguards in place – formal guidelines and codes of ethics which apply to mainstream media reporting, and the Broadcasting Standards Authority and the Media Council to mete out punishment where it’s warranted.
Facebook and Twitter? Different story, said the court.
‘‘There can be no reasonable expectation that such reportage (on social media) will be fair or accurate. And there is no realistic way of controlling its content or its spread,’’ its judgment said.
Justices Gilbert, Ellis and Katz’s decision takes a deep dive into how social media and justice intersected in this case. It lays out at length how truly unhinged the flow of outrage (and fake news) became on social media as the case progressed in 2018 and 2019, with ‘‘commentators’’ claiming the accused was a predator, a paedophile, a pig, a rat, an animal, a pervert, and a beneficiary of political interference in the court system. Some made claims about his parentage and ethnicity that (their Honours pointed out) were patently wrong.
If his name were to be released, it said, the man would be quickly found on social media and become an ‘‘easy target’’ of cyber mobs intent on ‘‘trolling, doxing, and internet vigilantism’’.
That’s not exactly a stretch, as anyone who’s ever been the target of attack on Twitter or Facebook will tell you.
The surprising bit is why it’s taken this long. Three and a half million Kiwis are regular users of social media. Facebook is way out in front as the popular choice but, whatever your poison, it’s a fact that most of us use some form of it every day. It seems incredible it’s taken until now for its power and implications to be thoroughly examined in a name suppression application.
I asked professor of criminal law at AUT, Warren Brookbanks, to help me make sense of this. He drew my attention to the bit on page 15 of the decision, which explains the last time the Law Commission made recommendations on name suppression was more than 10 years ago, and in 2009 Facebook, Reddit and Twitter were infants, and Instagram didn’t even exist.
At that time, says Brookbanks, nobody had any idea of how those platforms would develop. For the law, social media is ‘‘a whole new ballgame’’.
‘‘It is effectively the wild west, unregulated and anonymous, (where) people can say the most terrible and destructive things and not be held to account. While the judge in the High Court (who ruled against name suppression) did address social media, he didn’t really address the full impact it could have on a
young person’s life.
‘‘This has opened up a whole new area of debate.’’
It’s important to remember the youth camp case is not just a legal curiosity; there are wider implications flowing from it, and real people to consider.
One of the complainants told me he still feels justice has not been done, and is appalled the case has taken two-and-a-half years to travel through the courts.
The case also helped force Labour to examine its culpability and do better on issues of sexual harassment, assault and bullying, and ensure its complaints procedures and rules on alcohol and host responsibility are up to scratch.
And there are other judicial decisions, equally, if not more, important that shouldn’t slip past us. I’m thinking of the extraordinary choice made by a Palmerston North District Court judge this week to let a young man who stalked and sexually assaulted three women to get off without a conviction, apparently because he’s got good prospects as a rugby player and wants to join the army.
But it will be fascinating to see how the Labour camp decision is picked up by the legal profession. Will the possibility of a social media mauling become the new go-to for name suppression applications?
Brookbanks says that’s possible but won’t necessarily end in a flood of decisions like this week’s. As the decision clearly states; ‘‘[t]he level of interest (in the) case is unnaturally high because of the Labour Party camp context, with many commentators using it as a platform for wider (and vitriolic) political debate.’’
There won’t be many cases that reach that high a bar, but it seems inevitable that from now on that social media will become a regular feature of judicial deliberation. And really, it’s about time, isn’t it?
It will be fascinating to see how the Labour camp decision is picked up by the legal profession. Will the possibility of a social media mauling become the new go-to for name suppression applications?