Google say no. The NZ government seems to think it is.
The background
Late last year, New Zealand was shocked by the murder of a British tourist as this type of killing is unusual here. At the first court appearance of the accused murderer, a temporary name suppression order was made. As Andrew Little, the Minister of Justice stated:
Permanent suppression orders are very difficult to get in New Zealand. But temporary, or interim, suppression orders are commonly used in the early stages of a case to manage the needs of a fair trial. They are used as a practical application of the principle of being presumed innocent until proven guilty.
Even at the time of arrest, or well before the trial takes place, there is a lot for prosecuting and defence counsel to do to prepare, including working out what facts or issues are in dispute. Sometimes the issue of identification of the perpetrator is in question. Keeping the identity of an accused secret until after the trial ensures witnesses don’t get confused between what they saw around the time of the offending and what they’ve seen in the news since.
While NZ newspapers do honour suppression orders – the penalty for contempt of court can be high – foreign publication do not feel the same need need to comply. One British newspaper did publish the accused’s name and this was picked by Google’s news aggregation algorithms and mass emailed to all who subscribe to Google’s Trending in New Zealand newsletter, and included the name of the accused in the headline.
Official complaint
When the breach was discovered, Andrew Little confronted New Zealand Google executives about what happened, and they indicated they took the issue seriously and would look at what they could do to fix the problem. Last week, almost seven months after the complaint was made, Google announced it was not going to do anything about it. That lead to an angry response from the minister.
The Minister’s response
As you might imagine, Google’s response didn’t go down too well with Andrew Little. In part, he stated:
Google’s attitude to fair trial rights in New Zealand should concern us all. It’s time to call out their recklessness.
Frankly, their size, far from meaning they can’t fix an obvious risk to justice systems, means they are big enough to do better. I would be failing in my duty if, as a minister of justice in a small country, I threw in the towel and decided nothing could be done in the face of a giant international corporation thinking it could ride roughshod over one of the most important principles of criminal justice.
Google chooses to operate their business here, to earn revenue here, to publish news and information here. So they have obligations here. The same obligations other news publishers have. And for that matter, other multinational corporations.
I will not accept that Google can avoid their obligations. New Zealanders deserve better.
So I’ve asked for advice on our current suppression laws, the contribution of the Contempt of Court Bill that is currently before parliament, and what more is needed. I also want to know what avenues for legal action there might be.
This will be an issue that will affect other countries, so I want to explore how it is being dealt with overseas.
Meanwhile, one of the issues Google has raised is they don’t know what suppression orders are in force in New Zealand at any time. This doesn’t stop New Zealand based publishers from adhering to the law but I have asked the Ministry of Justice to review how it notifies media about suppression orders as part of its work to implement the new contempt laws.
One thing is clear. I’m not prepared to let Google off the hook, and all options are on the table.
A partial backdown
On Friday, Google offered an apology and has immediately suspended some elements of the subscriber news service Google Trends in New Zealand.
That means that people will no longer receive emails on any trending searches for New Zealand. Isn’t the suspension of the service a bit like cracking a walnut with a sledgehammer?
Throw the book at them
Meanwhile, a tech law specialist, Rick Shera, has stated:
Sabre rattling and wringing of hands by the Minister and, previously, the Privacy Commissioner, is good, but court proceedings should be issued if laws have been broken and Google or any other provider is unwilling to accept responsibility.
In follow-up comments to the NZ Herald, Shera noted a bill going through Parliament would create a $100,000 fine for corporates who break a suppression order (an individual can be fined up to $25,000 or receive a prison sentence up to six months).
“That is clearly de minimis [chump change] for the likes of Google or Facebook,” Shera said. “The bigger issue for them is being found to have broken the law – the reputational effect – and the precedent effect overseas.”
Google vs the little guy
An unrelated court case involving Google has fizzled out. The claimant sought an order restraining Google from including specific search results when a search was made on his name. Google argued two lines of defence:
- It was not a publisher. It simply gathered information already published.
- New Zealand has no jurisdiction in the matter, and the appropriate place to proceed is in the courts in the USA, the headquarters of Google, and where its technology originates.
I understand the claimant, realised that he didn’t have the resources to take on Google, even if the NZ courts had determined they had jurisdiction, so the case was abandoned.
What should be done?
Ideally, this situation needs to be resolved by international agreements, but unless the USA is willing to come on board, no agreement will be very effective, if at all. We’ve already seen the extra-national arm the American law in cases such as Kim Dot Com whose extradition case is still going through our courts. Dot Com’s alleged criminal activity occurred while he resided here, and he did not commit any crime under NZ law, but that seems to matter little to the USA. Then there’s the case of Meng Wanzhou, the chief financial officer of Huawei, being detained in Canada at the request of the USA. How about Julian Assange and Edward Snowden? Perhaps the US can show that harm has been caused to its interests as justification in all these cases??
If so, has not Google’s actions caused harm to New Zealand? Perhaps the NZ government should seek the extradition of Google’s chief technical officer for allowing Google to cause harm to our judicial system. To make sure a request isn’t laughed out of an American court, perhaps NZ should wait until he visits another nation such as the UK or Australia. Just imagine Trump’s response. I suspect most Americans would be behind Trump in this particular case.
So I’d like to ask the opinion of my readers in three matters:
- What constitutes publishing? If I emailed the same headline to friends or collegues as Google did in its “What’s trending in New Zealand” email, or posted that headline on this blog, I have no doubt that I’d be publishing in both cases. In fact, even if I did not mention the accused’s name, but provided a link to the British article that named him, I’d be in contempt of court. Why should Google be treated differently?
- How far should organisations go to comply with the laws of the country they operate in? Google has offices and staff here. Should they be able to avoid local laws by claiming it’s the parent body that’s responsible? Would that work in China?
- Should free speech be restricted to ensure a fair trial? I know jurors should only consider the evidence presented in court, but it’s human nature to form opinion from many sources including public conjecture, which may affect a juror’s ability to make an impartial decision. If suppression orders continue to be broken, there will be occasions where justice will not be served.
Just to clarify the name suppression order: The accused’s solicitor asked for name suppression, which was opposed by the police. The judge declined to grant name suppression, but the solicitor immediately filed an appeal. The appeal set in place an automatic 20-day interim suppression order so that both parties can prepare their arguments for or against the decision.
Another Spectrum 