Chapter 4
Reforming publication contempt

Issues and problems

Formulation and application of the real risk test

4.43The test, as we have discussed, is one of real risk, as distinct from a remote possibility, of interference with a fair trial. The court must assess the tendency of the publication to prejudice a fair trial. The bar is set at “could” rather than “would” prejudice a trial. There is, certainly as we understand the test, no requirement for the publication to actually compromise fair trial rights in order to find a publisher guilty of contempt, although some more recent cases seem to suggest that this may be required.126

4.44It has become apparent to us in the course of our research and preliminary consultation on this issue that a successful contempt prosecution must logically raise at least the possibility that the subsequent trial (because the identified risk could eventuate) will be subject to challenge on the same grounds. On a number of occasions, the courts have emphasised the public interest in ensuring that criminal trials are not derailed by granting stays. We think there is consequently something of an inherent tension between the interests protected by the law of contempt and the interest of the efficient administration of the trial itself.

4.45The similarity of the language used in the different tests for prejudice that apply in these two different contexts also raises a risk that the tests will be conflated; the test for contempt of court interpreted as requiring the substantially higher threshold that applies for a miscarriage of justice.127

4.46These difficulties raise a real question as to whether the current test is the right one and also whether it is being consistently applied. There may be a case for reframing the test for publication contempt using different terminology to try and better encapsulate the essence of contempt and also to distinguish it more clearly from the test applying to a stay of prosecution. There may not be sufficient separation between these different tests because they currently use similar language. Any reframing of the test would inevitably make it apparent that the test for contempt is a lesser test and that the bar is set at whether the publication or conduct creates more than a remote risk to the trial.

4.47Conceptually, we think there should also be more separation between assessing whether something poses a risk and whether that risk can be or was mitigated. We suggest these two points are relevant respectively to determining whether a prosecution should be stayed or whether there has been a miscarriage of justice but should not be relevant to whether a publication is contemptuous. The question of whether a publication is contemptuous and the question of whether the risk it poses can be ameliorated so the trial is ultimately a fair one are separate questions. We think that they have become confused on occasions.

4.48The purpose of contempt is to maintain public confidence in the administration of justice and to preserve an effective and impartial system of justice.128 However, the reasoning in some contempt cases shows that, when deciding whether contempt is proven beyond reasonable doubt, the court will invariably consider whether or not any prejudicial effects that may arise can be mitigated at trial. We suggest that this approach of not finding a publication in contempt because the court has been able to manage the risk posed when empanelling the jury or by relocating the trial conflates the real risk test with actual prejudice.

Controlling information in the new communications eraTop

4.49No matter how restrained the mainstream media may be in their reporting of an alleged crime, it is indisputable that, in the age of the Internet and social media, the idea that the law can prevent information from being disseminated seems to be fundamentally at odds with reality.129 The mainstream media and new media sources are increasingly interdependent. Citizens today access information from a multiplicity of sources, and while they still look to mainstream sources for authenticated news, they increasingly interpret this within the context of information/gossip/allegations exchanged in social media forums.

4.50The fact that these myriad sources of information, official and unofficial, can be accessed instantly, years after first publication, by anyone with an Internet connection also presents enormous challenges for the courts when applying their conventional reasoning in contempt cases. For example, as we discussed earlier, in determining whether a specific publication created a real risk of prejudice at the time of publication, the courts have placed great emphasis on its proximity to the time and place of trial. However, the concepts of “time and place” have far less relevance in the digital era as search technologies mean “publishing” is a continuous act and content is effectively not erasable.

4.51When assessing risk, the courts have also taken into consideration the type of publication (print, television or radio), its reach and its credibility as a medium. While it is still possible to draw meaningful distinctions between a news item broadcast on free-to-air television and an anonymous comment on a blog site, it is increasingly difficult to make such bright-line distinctions across the wide spectrum of online content providers. Sharing, linking and repackaging content is a defining feature of the new media environment, and the same content will often be distributed via numerous channels and platforms, including mobile applications, social media forums, Twitter and Facebook.

4.52Another challenge that the High Court grappled with in the Fairfax contempt proceedings concerning media coverage of the Rūātoki raids was how to accurately assess the prejudicial tendency of the particular publication given the avalanche of content publicly available in both mainstream and social media. In that case, which involved the publication of excerpts of intercepted communications that had been ruled inadmissible during a pretrial hearing, the Court also had to confront the fact that the affidavit containing the prohibited content was posted on a number of publicly accessible websites. The Judge commented that managing the risk of jurors accessing the affidavit from websites was “a normal trial risk in today’s electronic environment which would usually be addressed by appropriate jury direction”.130

4.53The courts can and are beginning to adapt the orthodox tests to the new media environment. For example, when assessing the reach or prominence of prejudicial content, some will consider how high the item was ranked on a Google search and whether the item was pushed out to audiences via linear media (for example, a television broadcast) or whether it would have required a potential juror to actively search out the offending material.

4.54However, while adapting the tests in such ways may go some way to addressing the complexities of the new publishing environment, they do not address the more fundamental challenge of controlling the flow of information.

4.55The law of publication contempt applies to “the whole world”. Now that almost anyone can publish information on a website, or in networked public spheres such as Twitter, the application of the law of contempt has broadened. Anyone who publishes prejudicial information may potentially commit this contempt. We consider that this reinforces the need for the law of contempt to be clear. Readily understandable information on obligations in this area needs to be clear and assessable.

Limiting freedom of expressionTop

4.56Case law has determined that the point at which the courts have jurisdiction to restrain or prohibit the publication of information pertaining to a forthcoming trial begins when the laying of charges is “imminent”.131

4.57Chilling public expression in an imprecise and far-reaching manner is not in the public interest. It may also not be consistent with the right to freedom of expression in the Bill of Rights Act. Although the courts often point out that restricting publication during the trial period only imposes a temporary constraint on freedom of expression, the difficulty is that, at the early stages of a criminal investigation, including the period when police may be gathering evidence about a suspect, the media has a vital role to play. Not only can the news media play a crucial role assisting police to obtain information about the crime from members of the public and witnesses, but news media have a critical role in scrutinising police investigations.

4.58The media’s role both as investigator and scrutineer was expressly acknowledged by the Australian Chief Justice Gleeson in the context of a defamation case:132

The idea that the investigation and exposure of wrongdoing is, or ought to be, the exclusive province of the police and the criminal justice system, bears little relation to reality in Australia, or any other free society. There are heavily governed societies in which the police and other public authorities have the exclusive capacity to make, and pursue, allegations of misconduct; but not in ours. Indeed, in our society allegations of misconduct are sometimes made against the police and public officials.

Secondly, it may well be in the public interest that inaction on the part of the police and prosecuting authorities be called publicly into question. It is certainly in the public interest that it is open to be called into question.

4.59In this respect, the courts have always been clear that the pretrial restriction is not intended to stifle discussion of issues of public importance or even prevent criticism of the ways in which police and other law officers exercise their powers or perform their duties. The Supreme Court recently said:133

New Zealand courts have recognised that the right of freedom of expression supports contemporaneous discussion of events in the criminal justice process and must be taken into account along with the right of an accused person to a fair and public hearing by an independent court. Both values must be given serious consideration and, so far as possible, fair trial rights and freedom of expression should each be accommodated.

4.60However, “contemporaneous discussion” does not necessarily allow publication of certain information that could give rise to a real risk of prejudice to a fair trial. The Supreme Court also said that temporary limitation by a suppression order in order to avoid risk to a fair trial “recognises the special importance of fair trial rights”.134 Some of the contemporaneous discussion must therefore take place at arm’s length from the specifics of the case in question. Hence, in Gisborne Herald, the Court held that, while there was certainly a legitimate public interest in coverage of the issues raised by Mr Gillies’s arrest, the debate should either have taken place without reference to the news event or been postponed until the trial had been completed.135

4.61The problem, of course, is that media discussion of the country’s bail laws, for example, is far more likely to capture the public’s attention (and by extension the political radar) if the subject is raised in the context of an unfolding news event. Postponing the discussion for a year or more until the trial has been completed simply misconceives the function of the news media in a free and democratic society. However, it is precisely this “newsworthiness” that makes such coverage contentious from the court’s perspective because of its potential to inflame public opinion and distort the views of potential jurors.

4.62In practice, the way the common law has evolved since Gisborne Herald suggests that there is now a much greater tolerance for robust discussion and debate at the time of the news event and during the course of any police investigation. The current position gives much more deference to freedom of expression. As noted by the Supreme Court, that value must as far as possible be accommodated. Debate or comment in the media that prejudges a case before the courts or discloses material that forms part of a pending case prior to trial should not of itself constitute contempt (unless disclosure of that material breaches a court order or is prohibited by a statutory provision).

4.63We suggest that, for a publication to be contemptuous, it must do more than simply comment or prejudge; it must comment or prejudge in a way that poses a real risk of prejudice to the trial or some other harm to the administration of justice or people’s confidence in it.

126Randerson J said in Solicitor-General v Fairfax New Zealand Ltd, above n 77, at [139] that:
“It may be necessary in future cases to consider whether contempt may be established where a publication has a general tendency to interfere with the administration of justice even where it cannot be demonstrated that the publication has compromised fair trial rights in a particular case.”
127R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145.
128ATH Smith Reforming the New Zealand Law of Contempt: An Issues/Discussion Paper (Crown Law Office, April 2011) at [1.2].
129R v Rickards (No 2) HC Auckland CRI-2005-063-1122, 25 May 2006.
130Solicitor-General v Fairfax New Zealand Ltd, above n 77, at [126].
131We may need a similar definition to that in the Contempt of Court Act 1981 (UK), sch 1, cl 4, in which criminal proceedings are commenced when any of the following occur:
(a) Arrest without warrant.
(b) The issue or, in Scotland, the grant of a warrant for arrest.
(c) The issue of a summons to appear or, in Scotland, the grant of a warrant to cite.
(d) The service of an indictment or other document specifying the charge.
(e) Except in Scotland, oral charge.
132Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [26]–[27].
133Siemer v Solicitor-General, above n 69, at [158].
134Siemer v Solicitor-General, above n 69, at [158].
135Gisborne Herald Co Ltd v Solicitor-General, above n 73, at 569.