Year in Review

This blog was initially meant to be about law and the media.

As the year progressed however, the focus seemed to be social networking and the internet and various legal pitfalls.

In the blog’s first post, employment lawyer Ruth Braakhuis was quoted, explaining that employers need to exercise caution when using social networking sites to research potential employees, or keep an eye on current ones. The post also links to an article by Braakhuis, in which she discusses potential problems with the Privacy Act, Human Rights Act and Employment Relations Act when employers use Facebook for work-related snooping.

In August, this blog discussed murder trials in the media that had tiggered questions concerning the use of Facebook and the possiblity this may be contempt of court or defamatory.

As the internet, and more specifically social networking sites, are relatively new in relation to media law and its implications for court processes, there is yet to be any major case that establishes a precedent.

During the murder trial of Clayton Weatherston, Facebook sites were set up claiming his guilt or innocence. This may have been contempt of court, as there is the possibility jurors could have been influenced by claims made on these pages that are not evidence allowed in court, which a jury’s decision has to be based on. Media law expert Steven Price discussed contempt of court in relation to the Weatherston case on his blog.

The David Bain case raised not only contempt of court questions due to Facebook sites, but defamation also. As Bain was found guilty in an early trial, but not guilty due to reasonable doubt in the most recent trial, there was understandably confusion. As David Farrar mentions on his blog, Bain has been found guilty before. Does this mean comments about that verdict need to stop during an appeal, even though technically he is still guilty until proven otherwise? A complicated scenario, although the law does prevent media comments while a case is sub judice, which an appeal could be classed as.

In August, NZ Police Minister Judith Collins said that police not providing names of drink drivers to publish was “protecting potential killers”.  This was followed by much debate, and the police eventually decided to reverse their decision not to provide these details. The information is owned by the courts, not the police, so it is public record and available for the media to publish.

In a BSA finding (concerning a case where images of someone convicted of drink driving were shown on television) Justice Jill Mallon said “an individual’s rights had to be balanced against permitting the open reporting of court proceedings and the media’s right to freedom of expression”. 

In 2009, NZ had another murder case to puzzle over, the makutu killing of Janet Moses in Wellington. This blog looked at comments made on other blogs about the case and community sentences handed down, which many saw as authorising murder if it was for cultural purposes.

Another confusing aspect of the media is the reporting of suicide. It is well known that most self-inflicted deaths are not reported as suicides, but when it comes to celebrities and criminals, are there different rules? In August, a link was posted to this story, saying a reality tv star had killed himself after he was on the run, suspected of killing his wife. This blog asked the question: Do celebrities and criminals’ families not deserve the same privacy and respect after the death of a family member as other people in society?

As a follow-up to a previous post on the Clayton Weatherston case, this blog mentioned the possible repeal of the section of the Crimes Act that covers the defence of provocation.

 As well as Facebook, Twitter has become a social networking phenomenon, and has raised similar questions as other social networking sites. After off-the-record comments made by US President Barack Obama after Kanye West’s famous VMA appearance, an article was published asking whether Twitter was ethical journalism or not.

As modern media can spread news instantly, comments made by people in positions of power and influence, such as Obama, may be put in difficult situations when comments made before an interview can be publicised as soon as they have been said. This may be by someone not directly involved with the interview, or someone who is, but even in this world of technology and easy access to information it is still important for a journalist to maintain trust with a source/interviewee.

In September, The Australian newspaper published the details of a man dubbed the ‘Australian Fritzl’. These details were suppressed, and the original publishing by the newspaper led to other media outlets using the information, breaching the suppression order several more times.  

 In NZ, victims of sexual assault/abuse automatically have their details suppressed, and the details of their abuser are also suppressed to prevent people finding out who the victim is. By publishing the name of the Australian Fritzl, and the location he is from, the newspaper has essentially identified the victim and her children.

Although protecting the victim is important, is it fair to hide the identity of a prolific sex offender from the community, at the risk of them offending again?

In October, the Crown Law Office announced they would be conducting a review of material published online. Recent cases, such as Clayton Weatherston’s murder trial, prompted this review, and a stuff.co.nz article said:

University of Canterbury law faculty associate professor Ursula Cheer told Law News magazine the Weatherston, Berryman and Rickards cases were an example of a growing internet trend.  More people were blogging and placing information on the internet, either without considering the legal implications, or in contravention of legal rulings because they felt strongly about an issue, she said. “The onus is now really more and more on the solicitor-general.” The time was near when an example would have to be made of someone who had breached the rules on the internet, Prof Cheer said.

The outcome of this review will be the beginning of a clearer way of dealing with the internet and material published online that may relate to, or compromise, legal matters.

Again the issue of Facebook and contempt of court reared its head, with experts discussing more than just the possible problems Facebook groups and comments can cause during active (or sub judice) cases. The issue of who is responsible for these comments was raised, with Facebook denying responsibility, which David Galbally, QC, disagrees with. Galbally believes there should be a law making hosts, such as Facebook, responsible for any content posted.

Professor Eric Goldman, Santa Clara University School of Law, publishes resources on his blog discussing aspects of the internet and the law. Goldman questions whether, in this age of citizen journalism, the person who writes the content (who may not understand the relevant laws when it comes to publishing material) should be liable, or the host of the content.

Just when social networking was complicated enough, this group emerged claiming to demonstrate just how easily profiles can be hijacked online and how easy it is to change other people’s information. Facebook then blocked the group’s profile, claiming they broke the terms and conditions of the network by creating fictive profiles. Which begs the question, if a group is blocked for trying to raise security awareness, why are some of the groups mentioned in other blog posts not? (Those supporting murderers and sex offenders for example).

In November there was some positive news to do with social networking, with this story explaining how people can actually use sites to actually network and gain employment.

This does, however, come with some risk as an employer may have access to your personal profile, or your profile may not be private. Any comments made on this site, even if they are a conversation between two people, could then become public as NZ rugby player Neemia Tialata found out. In the most recent incident, where Tialata mentioned on Twitter that he had not made the starting team before it was officially announced, his coaches seemingly brushed what happened aside.

A lucky escape for Tialata this time, he was not just risking a rap on the knuckles, but issues with his contract that may stipulate details such as team namings are kept quiet.

The The Judicial Ethics Advisory Committee, Florida Supreme Court, are suggesting that lawyers and judges should not be friends on sites such as Facebook.

In another American case, (the pioneers of social networking it would seem) several government agencies face lawsuits after the Electronic Frontier Foundation made information requests that were refused. The foundation wanted to know the organisations’ policies concerning social networking and information gathering.

In December, Facebook announced changes to privacy settings on the site,  allowing users more control over the information displayed on their profile, and who can see all posted information.  This may have been in response to an investigation by the Canadian Privacy Commission, which found Facebook was in contravention to the Privacy Act in several areas.

The University of San Francisco School of Law set up the Intellectual Property Justice Project, which provides legal assistance to people on intellectual property, a growing concern in this modern age of technology and ever-evolving modes of communication.

Businesses are also using this popular tool to grow their business and try different, immediate and interactive marketing techniques.

Although privacy issues are usually top of the list when people discuss problems with social networking sites and the internet, there is growing concern about the influence these sites may have on serious issues such as court cases.

As these problems are still relatively new, there has been no real test in any official capacity, in court for example, that sets any precedent that can guide law makers, and law breakers, when deciding on a set of rules or course of action.

There are already signs there will be some answers very soon, if not a universal and clear guide for social media law some sort of precedent at least. Blogger Cameron Slater, aka WhaleOil, looks set to be New Zealand’s first official case of internet comments landing the author in court.

Along with all of the benefits the internet provides, there are still many pitfalls, loop-holes and uncertainties that will take some time to iron out, and as with technology, will constantly evolve and require change.

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