The Law Commission’s report Suppressing Names and Evidence is a waste of time and money. They have spent a lot of time thinking about exactly why, how and what information should be suppressed, while neglecting to consider whether this suppression is even possible.
The Recent Case
I assume you’ve heard of the “well known entertainer” that was recently granted name suppression after the judge discharged them without conviction for offensive behaviour. For some reason a number of people felt it was so important that they tell everyone who it was that I found out their name on:
- Online chat
I’m told it was also on the Trade Me forums as well as many others. Even the Wikipedia page for the performer has the details – if you think to look in the edit history.
Takedown and Blocking Notices
Publication of this sort of information on the Internet can’t be stopped. While you could send a takedown notice to local sites (such as Trademe and Kiwiblog) and expect it to be honoured, overseas sites such as Facebook and Twitter are going to ignore it.
The Law Commission seems to suggest that it will be the responsibility of ISPs to block access to sites publishing such information (recommendation 26 from the report):
Where an internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable.
In the case above this would mean that ISPs would have to block the Facebook and Twitter web pages (the nature of these services means that you can’t just block a single piece of information as it could appear on any number of pages/URLs). They’d also have to block a number of other international forum sites. Ultimately, we would end up with the requirement to block every website in the world that contains content submitted by the users of the site.
If we get to this point the Internet in New Zealand is fundamentally broken and we’ve decided to stop being a member of the information age. Obviously this is not going to happen.
Is Name Suppression Dead?
If the courts can’t suppress information on the Internet is there any point continuing with suppression at all?
One counter argument is that not everyone is of as much interest as a “well known entertainer” so in some cases name suppression might continue to work. But the current trend is for people to put more and more of their lives, and the lives of the people they know, online. Over time I expect suppression to become less and less effective, even for people who don’t have a national profile.
You may notice that this article makes no comment on whether name suppression is good or bad. I’ve not always been happy with how it is used but, in general, I’m not completely against the concept, especially when it is used to protect the victim.
The problem is that my opinion, just like that of the Law Commission, is becoming increasingly irrelevant. The Internet does such a good job of sharing information that the idea of being able to control access to that information is becoming obsolete.
Court ordered suppression might work partially for a few more years but the end is in sight. The Law Commission would have done a better job if they had recognised this.