Suppression orders that target only the internet but not newspapers, radio and TV could be used to counter the problem of jurors using the web to conduct their own research.
The Law Commission has raised the internet-only orders as a possibility because of concerns that prejudicial pretrial publicity "may be easily accessible on the internet long after it ceased to be current news".
The latest case affected is that of samurai sword killer Antonie Dixon, who is reportedly seeking a third trial at taxpayers' expense after at least one juror searched for information about him on the internet during this year's retrial.
The Law Commission discussion paper released yesterday says the internet is "frustrating" suppression orders, with jurors making their own inquires despite a judge's directions not to do so. It quoted a recent court ruling saying "a specific direction to jurors not to Google the defendant may put exactly that possibility into a juror's head", adding that there was no foolproof way to address the availability of prejudicial material.
The commission report noted this year's ban by Judge David Harvey in the Manukau District Court that allowed publication of the names and images of the two murder-accused only in newspapers and on television and their names to be broadcast on radio, but not the internet - including blogs.
Judge Harvey cited "the viral effect of digital publication" and concerns the public would look for their names on search engines.
The commission report noted Judge Harvey's internet ban actually allowed for a greater flow of information, rather than his other option of a blanket suppression order.
It said the suppression orders on the internet had so far been dealt with according to "traditional principles".
However, it said the internet could thwart the usual tools available to deal with prejudice, such as judicial warnings to ignore pretrial publicity, the delay before trials that allowed such publicity to die down, change of venue, or suppression orders directed at certain accused or pieces of evidence.
The commission noted the seeming impossibility of controlling breaches of suppression on the internet, with a search of Judge Harvey's suppressed names still returning 95 hits within 24 hours of the ruling.
But, the commission asked, "Is it appropriate to abandon suppression orders in legitimate cases simply because they may be breached?"
The commission report also noted police concerns that suppressed material could come into the public domain without the traditional media, through a mass-distribution email or blogs, and asked if current legislation covered this.
The report also asks if a statutory obligation should be put on internet service providers that, once told they are hosting a site in breach, they must take steps to take it down.
The commission called for submissions on the report, Suppressing Names and Evidence, by February.