Blogger Cameron Slater (a.k.a. Whale Oil) was convicted today in the District Court of breaching suppression orders on his blog. By happy coincidence (or maybe not?) the country’s most tech-savvy judge, Judge David Harvey, heard the case and his detailed and expositional judgment is available here. Judge Harvey has certainly delivered on this judgment and it’s worth a read. He makes the following key comment at the very outset:
This case is about whether or not a person behaved in a manner that breached the law and in doing so utilised some of the communications technologies associated with the Internet. It is not a case about whether or not the law should allow nonpublication orders. That debate must take place in another forum.
A lot of comment has been made about the Whale Oil case, and much of it centred on whether name suppression should be available. Except for those who believe in a particularly activist judiciary, such questions are not for the Court to decide. Similarly there has also been much comment on the possible futility of suppression orders in the internet era. Following the release of the Law Commission’s report on name suppression last year I said that:
If the law is not to permit exercises in futility, this issue [name suppression] may need to be revisited again before long.
Judge Harvey also addressed this issue, rightly saying:
Up until such time as the legislature decides to repeal or amend s 140 of the Criminal Justice Act 1985, orders made by the Court for non-publication are expected to receive compliance and the assumption is that citizens will abide by Court orders. If they do not they may expose themselves to possible prosecution or Contempt of Court proceedings.
Except possibly in extreme cases, it is not for the Court to decide that a statutory provision is no longer effective and shouldn’t be applied.
Read part 2 here.