The folly of name suppression orders

“The law’s an ass” declared a “former National MP” after appearing in Waitakere District Court this morning, having been charged with breaching a name suppression order. The alleged breach relates to the naming on Twitter of a “well-known New Zealander” who was convicted of indecent assault.

The words “former National MP” are the description used by this report from the NZME News Service, used by the NZ Herald online. The article states that:

NZME News Service has chosen not to name the ex-MP because to do so would make the organisation complicit in helping to identify the well-known New Zealander.

That’s because the offence of breaching a suppression order could well be construed in quite ridiculously wide terms. The ex-MP’s tweet is still up on his Twitter page, meaning that naming the ex-MP would essentially direct the public to the information that allegedly breaches the suppression order. A Court may well consider the naming of the MP to therefore be “other information in breach of a suppression order” – an offence against s.211(2) of the Criminal Procedure Act 2011.

Section 211(2) is a strict liability offence. If you publish anything in breach of a suppression order, it doesn’t matter what your intent was: you’re guilty. However, the concept of “other information in breach of a suppression order” is a tricky one, given our Bill of Rights-mandated freedom of speech. At what point is “other information” allowed to be published, despite it leading people to the initial information that allegedly breached the order?

NZME News Service and the NZ Herald are evidently worried that naming the “former National MP” could result in legal consequences for them. But what about even providing the description “former National MP”? It’s not difficult to work out how many former National MPs are on Twitter, and a quick search through the obvious targets’ Twitter feeds would easily provide the identity of the MP and therefore the suppressed name of the criminal.

On the other hand, another major news organisation has published an article this morning naming the ex-MP. Now if that’s a breach, then if I were to name the news organisation or link to their article, I could conceivably be in breach of the suppression order myself. Of course, we don’t have too many major news organisations here in New Zealand, so by pointing readers to the existence of an article naming the former MP, could I be said to have breached the order regardless?

The inanity of the situation is perhaps best summed up by the person who tweeted this to the ex-MP:

“Best of luck @[name of ex-MP], in that thing we can’t talk about because of the thing we can’t talk about you talking about, today.”

You’d have to hope that if our news organisations were prosecuted for breaches, based on their articles reporting on the ex-MPs Court case, that our courts would read s.211 in such a way as to grant a wide scope for freedom of speech.

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