Jesse Kempson's name was published on social media and by overseas press despite a more than two-year suppression order. Photo / Dean Purcell
The integrity of New Zealand's justice system appears to be under threat.
Months before Grace Millane was murdered and Google's startling email to Kiwi users announced who her accused killer was, the Herald predicted and reported on a serious issue unfolding our in courts.
A Herald investigation about the increasing reach and presence of global tech giants has found information suppressed by New Zealand's courts in high-profile cases could be easily revealed with a simple search for key terms.
Disturbingly, suppressed information could also be discovered with Google's auto-fill function prompting and pointing users towards such material.
It is a problem not isolated to New Zealand, with the Times of London also finding Google users were able to identify rape victims whose anonymity was protected by law.
When the Herald first revealed these problems, just a matter of months before Millane was murdered, the Silicon Valley giant was accused of "thumbing its nose" at NZ's courts by the legal fraternity.
New Zealand's privacy commissioner also said it was of "considerable concern" to the country's judiciary and Parliament if any organisation was unwilling to follow court orders.
And former Justice Minister Andrew Little said the Herald's findings were concerning.
Google, however, defended itself and said it was "not in the business of censoring news".
It said it would require a "perpetual review" to find the "trillions of webpages currently existing on the web, but also those which are subsequently created" which breached court orders.
But just this month, and before Jesse Kempson's suppression was lifted today, the Herald found Google's auto-complete predictions continued to reveal the killer's identity.
A search for "Grace Millane's killer" also returned a top hit of Jesse Kempson.
The same has occurred on Twitter's search function, while Facebook showed users hundreds of posts, comments, hashtags and photos of Kempson.
The blatant breaches have also caught the ire of the Bar Association, while one London newspaper even flippantly replied to the concerns of a Millane family friend by saying "the law in New Zealand does not apply".
At yet another Kempson suppression last week, the Court of Appeal's President Justice Stephen Kós said: "His identity has been published. You put his name into a computer and you find it."
"While the New Zealand media deserves great credit for its obedience to the suppression orders made in the High Court and this Court, these orders have not been effective in overseas jurisdictions," he said in the decision, before the Supreme Court ultimately declined leave and ruled suppression to lift.
Despite such concerns, newly appointed Justice Minister Kris Faafoi told the Herald there were no current plans to amend legislation relating to suppression.
"We consider the current legislative settings are appropriate, including with respect to when suppression is or can be granted, and penalties for offending," he said.
But Ministry of Justice officials and other agencies are having ongoing discussions with the likes of Google, Facebook, and Twitter, about how breaches of suppression orders can be quickly identified and removed from their platforms, Faafoi said.
He added other options were also being explored to improve compliance with New Zealand's suppression laws.
Currently, a person or organisation overseas cannot be prosecuted unless there is a New Zealand based presence of an overseas entity or a person could be extradited.
Extradition is not an option, however, because New Zealand law only provides for extradition for offences punishable by imprisonment of 12 months or more. Penalties for an intentional breach of a suppression order have a maximum prison term of 6 months.
To date only Auckland businessman Leo Molloy has been charged by police and later pleaded guilty over naming Kempson online. He is due to be sentenced next year.
Faafoi said discussions with justice counterparts from Australia, UK, Canada and the US about finding a way where NZ court orders can be enforced in those countries is "a longer-term piece of work".
In August last year, Little said those discussions in London were constructive.
"I had very positive conversations with the relevant ministers ... about finding a way that New Zealand court orders can be enforced in those countries," he said.
Following Little's initial discussions, he raised the issue in November 2019 at the Commonwealth Law Ministers meeting and at the Council of Attorneys-General's meeting.
The Council of Attorneys-General assists the Council of Australian Governments (CAG) by developing a national and Trans-Tasman focus on maintaining and promoting best practice in law reform. The CAG consists of Attorneys-General from the Australian Government, all states and territories, and New Zealand's Minister of Justice.
Faafoi said those discussions are ongoing, however, Ministry of Justice work and other jurisdictions' ability to engage has been disrupted by Covid-19.
The problem of enforcing suppression orders in the internet age was glaring just moments after Kempson's first appearance in court.
He was named almost immediately in the UK press and across social media.
Then Google's mass "what's trending in New Zealand" email named Kemspson, while the tech giant claimed the excuse of ignorance.
Little said the breaches had the potential of jeopardising a fair trial.
"I think it's unfortunate the British papers have done what they've done. It will not do justice to the Millane family if the accused in this case gets to walk away from facing justice because somebody else has disclosed his details," he said.
National MP Nick Smith called the current laws "nonsense" but Prime Minister Jacinda Ardern said new or amended name suppression laws were not on the Government's agenda.
Little and Attorney-General David Parker met with Google representatives at the Beehive in December 2018. He said the integrity of fair trial rights cannot be left to "algorithms and machines".
Google NZ said it didn't act to block Kempson's name until its own processes sent a notification about the suppression order - four days after it was made by the judge. The search giant gave an undertaking to the government it would review those processes.
In January 2019, Ardern raised the issue again at a dinner with Google executives at the World Economic Forum in Davos, Switzerland.
However, in July 2019, Little said Google was "flipping the bird" with its contempt for New Zealand law after Google said there was no plan to change any of its systems.
Google's NZ government affairs manager Ross Young told Little in an email: "We have looked at our systems and it appears that last year's situation was relatively unique as it was a high-profile case, involving a person from overseas, which was extensively reported by overseas media."
But Google ultimately apologised and suspended the what's trending system in NZ after more pressure from Little. The NZ Police also revealed it warned Google about its name suppression breaches.
However, despite all the talk, promises and apologies, in September 2019 the problem again come to the fore.
Just weeks before Kempson's murder trial, Google was again under fire for failing to remove links revealing his identity.
It appears the issue of enforcing suppression in the internet age will continue.
In 2019, 94 per cent of charges did not have name suppression of any sort.
In total, there were 5768 charges with name suppression in 2019.
Where name suppression is granted, it is usually for interim suppression only while the court case is ongoing, or where the court needs to consider an appeal to a decision not to grant name suppression.
In 2019, 75 per cent of charges with name suppression had interim suppression only. Another 20 per cent had both interim and final name suppression and 5 per cent had final name suppression only.
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