Recent cases have highlighted the challenges modern
digital media present to traditional laws of "contempt" - which
govern what can and cannot be published before and during
trials. Debbie Porteous examines the issues.
Contempt? This Facebook group was started during the
Weatherston trial and taken down after the
solicitor-general's office said it was investigating
whether it breached contempt-of-court rules.
The internet presents such a real and insurmountable
challenge to governments trying to ensure a fair trial
process, the only way to deal with it is to change contempt
rules, an Auckland law professor says.
Criminal procedures specialist Associate Prof Scott Optican,
from Auckland University, said with the number of "citizen
journalists" growing, it would be impossible for the
Government to afford the resources it would take to police
the internet and prosecute individuals for contempt.
"Getting involved in that thicket is really something you
There were also issues around people's freedom of speech.
The only way to deal with the issue was to rethink contempt
and sub judice rules, he said.
For example, as part of pre-trial vetting, potential jurors
could be asked questions about their knowledge of a case and
more use could be made of other mechanisms in the justice
system, such as venue change.
The debate about contempt laws has been reignited because of
opinions expressed publicly on talk-back radio and the
internet during Clayton Weatherston's murder trial.
The sub judice rule seeks to restrict the publication or
broadcast of material which could prevent a fair trial.
Printing sub judice information is a contempt of court.
Among the information considered to breach the sub judice
rule if published before or during a trial is: evidence ruled
inadmissible; evidence not admitted or excluded from the
jury; interviews with witnesses; comments on the character of
the accused (jurors might infer the accused is guilty
regardless of the evidence brought before the court) and
anything that prejudges the merits of criminal proceedings.
During Weatherston's trial, a wave of public feeling was
expressed on the internet in blogs and on social networking
One Facebook group started during the trial was called
"Clayton Weatherston is a murderer. He is guilty of murder
And in a serious "error", the Stuff website stuffed up with a
headline announcing Weatherston "Guilty of Murder" - a day
before the jury reached its verdict.
Fairfax Media Group executive editor Paul Thompson said: "It
was a mistake. It is the kind of mistake we take very
The story, posted on The Press' page of the Stuff
website by a Christchurch-based staff member, was taken down
in a "matter of minutes", he said.
University of Canterbury political science and communication
Associate Prof Jim Tully said it was a "dreadful mistake" and
reinforced how careful people needed to be with the internet.
Some of the other blogs and social networking sites now face
an anxious time, after the solicitor-general's office
announced it was investigating whether they had breached
Otago University law dean Prof Mark Henaghan said
Weatherston's lawyers would have been "absolutely correct" to
argue a mistrial if they considered blogs and other
statements were building up a perception he was guilty.
The tricky part for lawyers was proving the comments had
influenced the jury.
To affect a trial, comments had to be a concerted effort over
time, and blogs and internet comments probably amounted more
to opinion than to a concerted effort, he said.
Media law specialist Prof Ursula Cheer, from Canterbury
University, said she believed the internet was largely
ignored by the New Zealand judiciary because of the
impracticalities of monitoring it.
Blogs tended to be regarded as being like gossip around the
However, as it became more influential it became more like
mainstream media, which meant it would be more likely to come
to the attention of judges or Crown Law.
David Farrar, the creator of Kiwiblog, one of the sites under
investigation, and Gregory Edwards, the administrator of the
Weatherston Facebook group, both pulled all comments related
to the trial and Weatherston after they learned the
solicitor-general's office was investigating them.
Mr Farrar said he did not consider himself part of the media
and had not known the sub judice rules.
"You regard yourself as part of the conversation. You don't
regard yourself as an information source; more of a
modern-day coffee table."
Prof Cheer said people responsible for publishing information
on the internet needed to understand it was risky to use
speech in that way and that laws applied.
Justice Minister Simon Power this week said he was aware of
the calls for contempt laws to be revamped, and the
Government had said the matter needed to be addressed. -
Additional reporting, Hamish McNeilly