Friday 14 December 2018


The murder of Grace Millane is a tragedy.

As much as a number of commentators and one justice minister like to paint it thus, the apparent flouting of a suppression order that has revealed the identity of her alleged killer is not.

Frustrating? Yes. A challenge to our slow-moving justice system? Maybe. But certainly no tragedy.


Many will struggle to remember both by the time of the  trial, probably at least 12 months away. Some may even have forgotten by the time the 26-year-old alleged killer makes his next appearance, when suppression is likely to be dropped.

It's worth remembering, too, that the murder of tourists in this country, and associated overseas interest, is still rare. Suppression is observed in the great majority of cases that make their way through our courts.

Those relaxed about the impact of such indiscretions on justice also have evidence to back their ambivalence.

Law expert Warren Young and others researched such influences on juries in 2001, on behalf of the Law Commission.

They concluded that "publicity both before and during the trial currently has little, if any, effect on jurors".

So there is every reason to believe that, despite the level of interest in this case, justice will be served.

Another Law Commission report, 2009's Suppressing Names and Evidence, suggested the issuing of orders to force internet providers to remove information in breach of suppression orders.

But if the internet is a new frontier, then social media is the wild, wild west: once the horse has bolted, it's next to impossible to bring it under control. Even after a person is named, officially, people may be able to track their footprints through Facebook, Google and other sites.

So the challenge is significant, perhaps even insurmountable.

One that our justice system may have to live with, but one we are confident it will survive.
Not only does the editorial make sense, it also links through to the cited work. Many kudos.

Law and regulation always has to be able to respond to large cost shifts in the underlying environment. Suppression orders were pretty easy in the 80s. Anyone who might report on the trial would know that the order was in place. The number of media outlets was limited. And when you needed to get a permission note from Reserve Bank to get the foreign currency to subscribe to a foreign newspaper or magazine that might show up a few weeks after publication - risks that way were pretty trivial.

All of that would lean toward relatively liberal use of suppression orders. If the judge thought that there was at least some benefit in it, enforcement costs weren't much worth worrying about. Enforcement was easy. So the orders could be used in a broader range of cases.

Susie Ferguson's interview this morning with Bar Association's Jonathan Eaton QC had the Bar Association wanting strong enforcement of the existing rules without regard to the tech change that's happened. Susie's questions were great. But Eaton seemed to be expecting the impossible. Google's said that they were never notified about the order; Eaton imagined a world in which Google would somehow back-check, in every jurisdiction in the world, for each and every court case ever as they came up and ongoing in case the situation changed, whether there were a suppression order in place so they could make take the appropriate measures. That seems ...nuts.

Maybe there's some tech way around it, where courts would put suppression orders up into a central repository that were machine readable and Google (and others) could have a running check on that list.

Australia currently has a suppression order out on the verdict in the trial of an Australian high-level Catholic official (he's guilty).  New Zealand media's reported broadly on it; I even got a push notification on it from the Washington Post. There'll always be a way for Australians to read that stuff. And are newspaper apps supposed to run a GPS check on where the phone's owner currently is located before running a push notification? It's just dumb to expect it. It would be completely unreasonable to expect Google's Blogger to be able to tell what the trial is at the start of this paragraph and block it for Australian readers too. And given that mess, it is an absolute nonsense that Australian media has to censor the verdict. Some folks just aren't living in the real world.

Some bottom lines then:
  • Tech change means the costs of implementing a suppression order in high profile cases are very high. Courts should then be more reluctant to issue them than they were in a prior era when those costs were lower.
  • If they want these things to have half a chance of working, they need to figure out the tech of getting a repository of decisions rather than expecting every platform to be watching every court case for every change in whether a suppression order is in place or not. And that's something that should be set through international cooperation so there's one repository for the things using a common standard rather than a pile of them. 
  • And even if the order doesn't work, it's not much of a worry given LC's work on whether jurors are prejudiced by it. That's good, because it is impossible for an order to really work unless it is enforced globally. VPNs exist. And even if platforms like Twitter or Facebook tried to geoblock particular key words, there are a billion ways around it. China has an army of internet censors trying to keep up with the ways that social media users develop euphemisms for things they're not supposed to say.

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