Media Law: Contempt of Court, Defamation, and Name Suppression Study Guidelines, and Name Suppression

Administrative Updates and Course Information

• Marking and Results Status:     * The instructor has finished the marking and submitted it to the administration.     * The administration is currently overwhelmed. Students are encouraged to be kind and friendly to the staff.     * Results are expected back sometime next week, though no specific day is guaranteed.     * The potential outage of the Nuku system might affect the release of results; however, alternate ways of getting results to students are being considered.
• Class Schedule Changes:     * There will be no live classes next week as the instructor will be attending a mediation course.     * Students are expected to engage with pre-recorded material on VStream.     * Course Content Replacement:         * Censorship: Six mini-lectures totaling approximately $2$ hours or slightly less.         * Official Information Act (OIA): Three or four lectures totaling approximately $1$ hour.
• Accessing Materials During Nuku Outage:     * VStream: Users can log in via the "Student SSO" option in the dropdown menu to access videos.     * Talos: Course readings and questions are available on Talos; search for "Talos VUW" to access them independently of Nuku.

Perspectives on Media Law Practice and the Shift to Mediation

• The Experience of a Media Lawyer:     * High Points and Career Path: The instructor's first job was as a lawyer for the program "Fair Go," involving weekly calls regarding trespassing laws and property rights.     * Crisis Management: Experiences included receiving faxes about potential contempt of court, gathering a team at Kensington and Swan, ordering pizza, staying up all night for submissions, and flying to Auckland to argue cases.     * Collaboration with Nikki Hager (also referred to as Mickey Hager):         * Detailed work involved reviewing book drafts at Hager's home in Roseneath.         * Legal strategy involved "grilling" the author on evidence, tweaking wording to ensure assertions were provable, and framing statements as questions or appearances (e.g., "appears to be corrupt") to utilize honest opinion defenses.         * Description of Nikki Hager: Described as "saintly" and characterized by intense listening, careful thought before responding, and deep ethical consideration regarding the impact of his investigative work on people.         * The Expose Example: Hager exposed a commercial firm that paid private investigators to infiltrate protesters. One infiltrator had formed a relationship with a protester. Before the story was published on the front page of the "Sunday Star Times," Hager traveled to Dunedin to tell the individual what was happening so he could be mentally prepared.
• Notable Legal Cases:     * The Jury Case: Involved a public interest defense.     * The Morse Case (Valerie Morse): Involved burning a New Zealand flag; argued as a free speech defense in the Supreme Court, which eventually adjusted the law regarding provocative behavior versus offensive behavior provisions.     * The Hunt Case: Established media standards regarding confidential documents.
• Transitions to Mediation:     * The instructor finds contemporary litigation often involves "petty little disputes" settled between wealthy parties, often over online interactions.     * Critique of Litigation: Procedural arguments are expensive, lawyers can be aggressive/testy, and the nuts-and-bolts rules of court filings are unsatisfying.     * Mediation Goal: To help parties reach faster, better solutions without spending "truckloads of money" on court proceedings.

The Economics and Procedural Reality of Defamation Law

• Litigation Costs:     * Costs vary wildly; many cases never reach court because the law is so stressful, risky, and slow that it incentivizes quick settlements.     * Lawsuits are sometimes filed solely to force the other side to settle.     * Estimated Cost of a Trial: If a case goes to the end, costs typically exceed hundreds of thousands of dollars.     * Specific Data: The "Kelly's case" likely cost millions. Another case had accrued $280,000 in fees ten years ago before even reaching trial.
• The Internet and Evidence:     * The Internet makes finding evidence of the "exact words" used easier because of written posts on Facebook or other platforms.     * Difficulties arise in proving the extent of "percolation" (how far a story spread).     * Facebook Algorithms: It remains a mystery how Facebook determines what appears in a feed, making it hard to argue how many people organically viewed a post versus interactions (likes/shares).     * Harm Threshold: The court must determine if a post caused "more than minor harm." Proving harm for a dozen people versus larger numbers is a difficult inference for the court to draw.

The Fairfax Case: Contempt of Court Analysis

• Factual Background:     * Raids occurred across New Zealand regarding potential terrorism; several people were arrested for Arms Act offenses.     * The Solicitor-General declined to charge individuals with terrorism because the laws were not well-geared for it, leaving a public "mystery."     * A $150$-page affidavit was leaked to media. Most outlets did not publish it, but the "Dominion Post" published extracts.
• Defense Arguments for the Dominion Post:     * Public Interest: The public needed to know if the police had overreacted or if there was substance to terrorism claims.     * Other Media Presence: Other media, the Prime Minister, and the Solicitor-General were already discussing the links to terrorism.     * Freedom of Expression: Under the Bill of Rights, finding contempt would not be a "demonstrably justifiable" limit on speech.     * Delay: The trial was a long time away ($2$ years or more), and jurors would focus on the evidence at trial rather than old news.     * Expert Evidence: Warren Young argued the chance of prejudice was very small.
• The Court's Findings (Solicitor-General v Fairfax New Zealand Ltd):     * The court accepted that the Fairfax articles were "dramatic," "sensational," and designed for "maximum publicity."     * The verbatim quotes from suspects had "greater potency" than general statements.     * The extracts were inadmissible evidence, and the law of contempt exists to prevent "trial by media."     * The court acknowledged a "clear potential" to affect jurors' minds.
• The "U-Turn" Decision (Why Contempt was NOT found):     * Time Lapse: The trial ended up being years away, allowing memories to fade.     * Existing Sources of Prejudice: High-ranking officials (PM, Police Commissioner) had already established the link to terrorism. The Fairfax articles didn't "add materially" to that prejudice.     * Scope of Trial: The court believed the trial issues would be about "identity" (which person was at the camp), which would not be affected by terrorism allegations.     * Focusing Effect: The court believed the formality of the trial and judicial warnings would prevent jurors from using inadmissible published material.
• Critique of Fairfax:     * The finding is difficult to reconcile with "Gisborne Herald," which states that "reviving and reinforcing" prejudice is contempt.     * The court assumed identity was the only issue, whereas the defense of "lawful purpose" (using weapons for games/bushcraft) was actually prejudiced by terrorism labels.     * The judges issued a warning in paragraph $139$ that this should not be a "license to publish inadmissible material."

Scandalizing the Judiciary: Section 22

• Definition: Scandalizing the judiciary involves publishing statements about judges or the justice system that create a real risk of the public losing confidence in the legal institution.
• Common Law vs. Contempt of Court Act:     * Formerly a common law offense (e.g., the "Vanderkap" case where a man was jailed for crude insults against a JP).     * Now codified in Section $22$ of the Contempt of Court Act.
• Elements of the Offense (Section 22):     * The defendant must publish a false statement about a judge or court.     * The defendant knew or ought to have known the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary.     * There must be a real risk of that undermining occurring.     * The prosecution must be proved beyond reasonable doubt.
• The 2014 Vince Siemer Survey:     * Siemer conducted an anonymous survey of lawyers, ranking judges out of $10$ and publishing specific insults.     * Insults included: "intellectual and moral lightweight," "impervious to facts," "reckless," and "highly partisan."     * No action was taken against this, suggesting that scandalizing the judiciary is a "vexed" area where prosecution might bring more negative attention to the claims than the initial publication.
• Injunctions:     * The Solicitor-General can seek an interim injunction to take down material by showing an "arguable case."     * Critics argue the threshold for such an injunction is too low and amorphous.

The Law of Name Suppression

• Historical Context: In $1974$, a Labour government briefly suppressed all criminal defendants' names until conviction. The National government repealed this in $1975$.
• The Criminal Procedure Act (Sections 194–212):     * The primary governing statute. Specifically, sections $200$ and $202$ are critical.
• Automatic Suppression:     * Accounts for approximately $99\%$ of suppressions.     * Applies to victims of incest, child witnesses, child victims, and sex crime complainants.     * Opting Out: Victims over $18$ can apply to a judge to revoke their automatic suppression to speak out, provided they are of "sound mind and body."
• Discretionary Suppression (The Two-Step Test):     * Step 1: Statutory Grounds:         1. Extreme Hardship: The threshold for a defendant. Hardship is defined by the dictionary as "severe suffering or privation." Extreme is significantly higher than that.         2. Undue Hardship: The threshold for a victim or person connected (e.g., family/employer).         3. Note: Normal consequences of prosecution (embarrassment, distress, loss of job) generally do not count as "extreme hardship."     * Step 2: Holistic Discretion: Even if grounds are met, the judge considers open justice, the seriousness of the offense, the strength of the evidence, and the public interest.
• Section 200 (Defendant-Specific Grounds):     * Extreme hardship to the defendant.     * Undue hardship to a victim associated with naming the defendant.     * Endangering safety, casting suspicion on others, or risking a fair trial.     * Celebrity Status: Section explicitly states that being "well known" is not enough on its own. However, celebrities often hire better lawyers and can prove that the consequences of being well known (mass media coverage) result in more harm than for an average citizen.
• Jigsaw Identification:     * Identifying a person through incidental details (e.g., "former All Black from Timaru") is prohibited if it creates an "appreciable risk" that familiar people or those searching online can identify the person.

Name Suppression and Social Media "Pile-Ons"

• Legal Relevance: Toxic social media behavior can be a factor in granting name suppression, especially for young or vulnerable people.
• Case Studies:     * M v R (Luca Figliola): Despite high-profile sexual assault charges and social media toxicity, the Supreme Court denied name suppression because the medical evidence of hardship wasn't severe enough.     * X and R (Labour Party Camp): A young man with a Muslim name was accused online of being a predator. Because of the specific misinformation and potential for long-term searchability of his name, he was granted suppression.     * Counter-Case: In another case involving an $18$-year-old woman, the court described extreme insults (e.g., "ugly little bitch," "drink bleach") as "regrettably normal" consequences in the current social media climate and denied suppression.