Web makes mockery of gagging orders

By Andrew Laxon

Most people knew the man's name through friends or the internet. File photo / NZ Herald
Most people knew the man's name through friends or the internet. File photo / NZ Herald

Do you know the name of the actor who slept with the prostitute who slept with Manchester United soccer star Wayne Rooney?

How about the A-list celebrity being sued for $20 million for deliberately giving his partner a sexually transmitted disease in a one-night stand in Las Vegas?

Or, closer to home, the prominent local entertainer discharged without conviction for indecently assaulting a teenage girl, the comedian who pleaded guilty to performing an indecent act on a child or the former All Black who admitted assaulting his pregnant partner?

The names of all these celebrities have been suppressed by courts in England, the United States and New Zealand in the last few years.

But if you have access to Twitter and Facebook and a taste for celebrity gossip, you can usually find the answers - assuming you don't already know them - in a matter of minutes.

Social networking sites have made a mockery of name suppression laws around the globe, as Manchester United star Ryan Giggs found out this week.

The 37-year-old married footballer won a court order concealing his identity as he tried to stop a newspaper publishing a tell-all account of his alleged affair with Big Brother reality TV star and former Miss Wales Imogen Thomas.

But tweeters revealed his name weeks ago even though traditional media could not touch the story.

Eventually the floodgates opened when the Scottish Sunday Herald defiantly splashed Giggs' face on its front page and an MP named Giggs under parliamentary privilege in the House of Commons.

By then even Prime Minister David Cameron had conceded he and everyone else in Britain knew the footballer's name and the law was out of step with reality.

"It's not fair on the newspapers if all the social media can report this and the newspapers can't," he said.

"So the law and the practice has got to catch up with how people consume media today."

New Zealand is grappling with the same issue after a string of blatant name suppression breaches on the internet, which circumvented gagging orders placed on traditional media.

One of the most controversial involved a prominent entertainer charged with indecency, after forcing a 16-year-old girl's face into his genitals.

In November 2009 Judge Eddie Paul found the entertainer had committed the offence but he permanently suppressed his name and discharged him without conviction on the grounds that the public stigma would be out of proportion to the "moderate to low" seriousness of his actions.

Within days a newspaper poll found most people knew the man's name through friends or the internet.

Prime Minister John Key admitted he knew it too.

The Government has since asked the Law Commission to investigate whether digital media should be placed under the same reporting restrictions as old media.

Professor John Burrows, the commissioner in charge of the review, says it will cover whether the so-called new media - such as Twitter, Facebook and blogs - should be regarded as news organisations for legal purposes.

It will then examine whether the existing law covers them and, if not, whether anything can be done about it.

He aims to produce an issues paper by November but warns it is more likely to set out the nature of the problems than offer firm solutions.

"The question may well be that even if you're not entirely able to stop publication, are there any ways in which you can limit the damage?"

Bloggers are not entirely immune from the law as anti-name suppression crusader Cameron Slater, better known as Whale Oil, found out last September when he was convicted of breaching eight suppression orders and naming a victim in a sexual abuse case.

The breaches revealed the identities of the prominent entertainer and an Olympic athlete charged with raping his ex-wife.

Kiwiblog writer David Farrar says widely read news blogs are clearly subject to legal restrictions.

The difficulty lies with social media users like tweeters who do not see themselves as publishing.

"You just see people's comments for a few hours and then they disappear. They actually are there forever but people do see Twitter very much as chat."

He says historically the courts have not regarded telling another person about a suppressed name as a breach but social media could force the law to make more careful distinctions, especially for sites like Facebook.

"If your Facebook wall is open for everyone to see there's no doubt that's publishing.

"If it's restricted to just you and your friends, is that publishing? It probably is but it's less harmful."

Twitter poses a similar problem. This month an anonymous user with more than 100,000 followers posted a list of British celebrities who have allegedly taken out "super injunctions" - sweeping court orders which prevent the media even reporting the order's existence - to block revelations about their private lives.

The list, which included Giggs, two actors and a celebrity chef, was forwarded to an estimated two million people.

Lawyers for two of the celebrities involved admitted they saw little point in suing, although one suspected a media organisation was behind the leak.

Many bloggers claim the real problem is misguided name suppression decisions, which tend to protect the rich, famous and powerful.

Justice Minister Simon Power has said this will be addressed in the Criminal Procedures Bill, which is due to become law this year.

Last year he warned: "Being famous is not a good enough reason to be granted name suppression."

The counter-argument is that many bloggers don't understand or choose to ignore the reasons behind name suppressions, which may involve protecting the victim's identity.

In the Giggs case, a judge ruled that the original injunction remained valid despite the Twitter breach because its main purpose was to protect the footballer and his family from media harassment.

Farrar predicts name suppression will still work most of the time as most people have no interest in knowing the names of sex offence victims or the messy details of family court sagas.

He believes the problem occurs when a big name is involved and the public suspects he or she is hiding something.

In those circumstances it is not only futile but counter-productive to try to gag the media - as Giggs found out with a vengeance this week.

- NZ Herald

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