The Court of Appeal says social media is a toxic place and has been 'weaponised' to take out those deemed to have transgressed the norms of any online group.
A young man has been granted permanent name suppression after admitting he assaulted two people at a drunken Labour Party youth summer camp.
And in what may be a precedent setting decision, the Court of Appeal said it did so to protect him from a social media "mob" intent on "cancel culture" and internet vigilantism.
The 22-year-old has not been identified since the criminal case was sparked when sexual allegations emerged from the Labour event near Waihi in February 2018.
Midway through a trial last year in the Auckland District Court, however, a plea deal was reached with prosecutors after a jury was asked to consider five charges of indecent assault, relating to two men and two women.
The man ultimately pleaded guilty to two amended charges of assault for the allegations against the two men, and the charges against the two women were withdrawn and dismissed.
He was discharged without conviction but declined permanent name suppression in the District Court, leading to a series of appeals.
Today, the Court of Appeal released its decision granting the man permanent suppression and overturning an earlier High Court decision.
In their judgment, Justice Murray Gilbert, Justice Rebecca Ellis and Justice Sarah Katz took aim at social media and the harm "likely to be inflicted" on the man by its users.
While the judges said there would be no extreme hardship with publication in mainstream media, which was subject to both a code of ethics and the complaints procedure, the same could not be said for social media.
"Commentary about a case or about a defendant on social media is a very different matter. There can be no reasonable expectation that such reportage will be fair or accurate," the decision reads.
"And there is no realistic way of controlling its content or its spread, particularly in a high profile and politically controversial case."
The Court of Appeal said this was a problem the courts have yet fully to grapple, particularly where a defendant is young and "vulnerable to trolling, doxing, and internet vigilantism."
The man's lawyer, Emma Priest, has said Facebook and Twitter users have labelled her client a "sexual predator" and "the Labour Youth Camp pervert" despite the sexual charges being dropped.
The Court of Appeal described social media's current form as both universal and toxic and also commented on the more recent phenomenon of "cancel" or "call-out" culture.
It said this was when social media is "weaponised against those deemed to have transgressed the norms of any online group (or mob)".
"And there can be no doubt that this new culture of public shaming has the potential to be mercilessly inflicted on young people who become embroiled in the criminal justice system — particularly in the context of alleged sexual offending — however briefly, and whatever the legal outcome of the case."
The court added it now believes the potential hardship caused by the "pernicious, judgemental, exponential, indelible, and often ill-informed publication on social media platforms" is of a quite different magnitude than in past years.
"Public shaming of this or any kind forms no part of our criminal justice system. It is not the object of open justice. It serves no useful rehabilitative or other social purpose. Its object is humiliation and degradation," the decision reads.
"So we think that, in a case such as the present, it is time to recognise these realities."
The Court of Appeal also reviewed a selection of social media posts and comments about the case.
"There is every reason to believe that, if [the man's] name was now published, such comments would grow in number and in venom.
"The clear view held by a number of social media commentators thus far (that the decision to discharge [him] without conviction was wrong, the result of political interference, politically motivated, or related to the affluence of his family or the colour of his skin) makes [him] a particular target for 'cancelling'."
The court said those people who "are disposed to use social media in this way will regard their hateful posting as justified by their perception that [the man] has escaped justice".
A case of 'political football'
At his sentencing last November, the man was discharged without conviction but also refused permanent name suppression by Judge Russell Collins.
The suppression decision was upheld on appeal in April by Justice Christian Whata in the High Court.
This led to a second appeal attempt at the Court of Appeal in June.
At the hearing, Priest argued Justice Whata erred in dismissing the first appeal and had used a higher threshold test against her client because of the "highly disproportionate nature of media reporting in this case".
"This is not a case of the public not knowing what went on, they know everything that went on," she said.
"Without suppression, it is my submission, that the discharge without conviction is meaningless."
Priest also said it was easy for the courts to discount "misguided comments by uninformed people" on social media commenting on news events.
When making his decision, Justice Whata pondered the prospect of continuing suppression until after the general election, but on reflection he said the political dimension precludes such a course.
After the sentencing, one of the victims spoke to Newstalk ZB and said the case had became a "political football".
Both victims and the Crown were against suppression for the man.
When the trial began last August, the court heard there had been heavy drinking at the camp, which was described by witnesses as a "glorified piss-up".
Prime Minister Jacinda Ardern had spoken at the camp the day before the offending.
Wellington lawyer Maria Austen conducted an external review of Labour Party procedures, which included several recommendations. Ardern has said the report will be publicly released after the court proceedings concluded.
Former Labour Party president Nigel Haworth, who quit last September as separate sexual allegations within the party came to light, has said all the recommendations of Austen's report would be implemented.