David Harvey
I often wonder how many times the realities of the digital paradigm and the local effectiveness and enforcement of court orders such as injunctions and name suppression are going to be an issue.
The “shock, horror, outrage angst” that has accompanied the revelation that certain information surrounding the Tom Phillips case has been circulating on social media should come as no surprise. The internet enables the democratisation of information. Information that may have been the subject of whispers and gossip around the watercooler at the office in the kinetic paradigm is now spread via Instagram, Reddit, TikTok and the myriad other internet platforms.
Lloyd Burr wrote on Stuff on 16 September that:
Despite injunctions, there are people posting suppressed information in comments on TikTok, Facebook, X, Reddit, and Instagram about the Tom Phillips case. Even Google’s implicated. New Zealand-based media are abiding by court orders. So is there anything the government or police can do to rein in the tech companies?
The article goes on to observe that the Minister of Justice, who is also the Minister for Media and Communications:
confirms it is a problem and that there hasn’t been an effective solution yet – but accepts he hasn’t asked officials to seek one.
‘I haven’t made a specific request,’ he says, adding that he will go and seek advice about a solution to it this afternoon.
Burr goes on to report on Goldsmith’s comments:
‘There are some practical challenges with modern social media, and the internationalisation of it. That’s the broad challenge,” he says. “It’s not something we can resolve immediately, that’s for sure.’
Is Goldsmith worried these platforms are allowing suppressed details of the case to trickle out?
‘There’s no question that we do have real challenges about how those laws work in the modern environment. But, you know, we haven’t been able to solve that yet,’ he says.
And what about enforcement? Burr raises the issue this way:
Does the Solicitor-General lay a complaint with police for every single social media comment or post or search result? That could be tens of thousands of complaints. Or does the High Court lay a complaint with each of the companies that own the platforms?
Goldsmith doesn’t know.
‘I’m not a lawyer. I’m not going to provide legal advice for you. But these are the types of legal issues that will be resolved,’ he says.
A New Zealand Herald report on 16 September 2025 makes the following observations:
Justice Minister Paul Goldsmith said he had ‘seen the situation developing’ and expressed concern, while acknowledging suppression breaches were judged by the courts.
‘[T]here is, I suppose, a mismatch between the suppression orders and what is going on in broader modern social media, so yes, I’ll be taking some advice.
Goldsmith said he was open to a law change but he didn’t appear hopeful an effective solution was readily available.
‘If there’s legislative change required, maybe, but like I say, I haven’t had any advice on any easy solutions to what is the reality that New Zealanders get their news from all over the globe and we can’t enforce our writ all over the globe, and so there is a challenge there.’
Goldsmith clarified he had not yet asked for advice but intended to.
So, Goldsmith doesn’t know. The Minister of Justice who also holds the Media and Communications portfolios doesn’t know? And clearly, he is not a lawyer. But has he been under a rock for the past 15 or so years? These issues are not new.
What is more concerning is that Goldsmith is described as an historian and biographer who attended Auckland Grammar School and received an MA in history from the University of Auckland in 1996. His thesis was on the life of missionary William Colenso and Dame Judith Binney was his Master’s supervisor.
He should be a little more aware of some of the important background issues that impact upon both portfolios.
Short memories
Nikki McDonald, writing in Stuff for 14 September 2025, poses the question:
“But can you really keep information from being carried on a global media king tide?”
McDonald goes on to cover some of the problems raised by jurisdiction over offshore sites and also discusses whether anyone has been prosecuted for breaching a suppression order.
Referring to the Grace Millane case, the article records the prosecution of Leo Molloy who breached the suppression orders made in that matter. The inference is that Molloy’s has been the only prosecution for breach of a suppression order.
How short memories are.
In August and September 2010, I presided over the trial of Cameron Slater who faced 10 charges of breach of suppression orders. I opened my decision as follows:
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 non-publication orders. That debate must take place in another forum. This is not a case about regulating the Internet. That is a vastly more complex subject that involves considerations of Internet Governance, the nature of the technical infrastructure and the manner in which the various organizations that administer that technical infrastructure are amenable to domestic regulation.
Furthermore there is a significant difference between technical and infrastructural regulation on the one hand and content regulation on the other. In some respects there are elements of content regulation that lie within this case. The real essence of the case is about human behaviour. It is a case about the law speaking in the light of changing technologies.
That essential issue remains. But it is here that the history comes in.
Recommendations ignored
Shortly after the decision in Slater, the Minister of Justice, Simon Power, ordered a review of the “wild west” of the internet. The Law Commission was tasked with examining the adequacy of regulations around how the internet interacts with the justice system.
Despite the decision in which I found Slater guilty of breaching suppression orders, Power suggested that bloggers and online publishers were not subject to any form of regulation (wrong – the law applied to them and they could be prosecuted for breach of suppression orders or be liable in defamation, for example); nor were they subject to any form of regulation of professional standards. (Correct)
Power was concerned about how trials can be prejudiced by information posted on websites (and seen by jurors), real-time online streaming of court cases, breaches of court suppression orders and re-publication of a libel.
The Law Commission project started in October 2010 and closed in March 2013.
It published an Issues Paper on 12 December 2011 and a final report “The News Media Meets “New Media”: Rights and Responsibilities in the Digital Age”, published on 22 March 2013.
In the midst of its considerations surrounding the media project, the Law Commission was tasked with addressing the adequacy of current sanctions and remedies for harmful digital communications. A ministerial briefing paper was presented to the minister and the Harmful Digital Communications Act 2015 followed from that.
But the very full recommendations of the Law Commission contained in its report of 22 March 2013 received no attention whatsoever from the government.
Since then there have been various efforts undertaken to address the problems of the digital paradigm. One of the main projects was the Safer Online Services and Web Platform proposals of the Department of Internal Affair – abandoned by the current government. The Fair Digital News Bargaining Bill languishes in the minister’s office. Given the fact that mainstream media is still functioning, there would seem to be no immediate need for that proposal.
Different reality
Yet the fundamental problems surrounding the issue of regulation in the digital paradigm remain and every so often the shock, horror, pearl-clutching response goes out as the authorities – namely the government and the courts – confront the reality that we are living in a different informational environment.
The nostalgia for the way things used to be is just that; the way things used to be is no longer. It has given way to the realities of the democratisation of information that is the legacy of the internet.
Suppression orders made pursuant to the provisions of the Criminal Justice Act 2011 may apply to mainstream media who must act within the law. Similarly, injunctions such as the prohibitions imposed in the Phillips matter govern mainstream media.
But what is the real purpose behind injunctions and by extension suppression orders?
In the case of PJH v Newsgroup Newspapers Ltd [2016] 1 AC 1081, the injunction in that case was really intended to stop a media storm breaking on the family, particularly the children, if disclosure were allowed. Its main function was to prevent harassment and intrusion, not so much publication per se. But it had to prevent publication to have that effect.
But can they prevent chatter around the digital watercooler of the internet? If one looks at the position in PJH, the answer must be no.
The use of takedown orders, as was the case in Exley v NZME [2025] NZSC 90, applies to mainstream media to protect fair trial rights. But as I have pointed out, the rise of AI and its ability to be used as a source of information, may well mean that takedown orders are less effective.
One reality about suppression orders is that they challenge the principle of open justice.
Notwithstanding legislative efforts to tighten the grounds, suppression orders are still frequently made and their existence, especially in high-profile cases, challenges open justice. They also call into question some aspects surrounding the rule of law and ultimately confidence in the legitimacy of the courts.
What now?
It may be that now that the digital paradigm is upon us, we need to think about a paradigmatically different approach to the issues of publicity around court proceedings that recognises the realities of the new information age and sidelines the wish to have thing “the way that they once were”.
Those days are gone.
Perhaps it is time to revisit suppression orders altogether and to restrict the grounds for them to the following:
- To protect the right to a fair trial –available only to ensure that background information about an accused that may be prejudicial to a trial may not be sought;
- To protect children from publicity and ensure their privacy; and
- To protect the complainant/victim in cases of sexual offending.
Otherwise, eliminate from consideration issues such as extreme hardship to the defendant or undue hardship to others.
Non-publication injunctions should be applicable only to mainstream media or those who may be subject to the jurisdiction of the Broadcasting Standards Authority or the New Zealand Media Council. The latter would cover bloggers or other citizen journalists who are subject to the NZMC.
As things stand, internet radio stations such as the Platform or Reality Check Radio would not be caught by the above restriction as far as injunctions are concerned. They could be prosecuted for breaching a suppression order – as they are now – even in the limited form proposed.
The answer may lie in a proposal by media commentator Gavin Ellis who suggests that internet platforms – and he includes social media platforms as well as internet radio – should be deemed to be publishers. As such, Ellis argues that the legal responsibilities attaching to publishers would enhance legal accountability.
In this way there could be some certainty about the scope and application of suppression orders and non-publication injunctions.
As for the minister, perhaps he should have a look at the Law Commission report of March 2013 and read my book Collisions in the Digital Paradigm -Law and Rulemaking in the Internet Age.
And when he has done that, perhaps he should give me a call.
David Harvey is a retired District Court Judge, a member of The Law Association’s Public & Administrative Law Committee and a member of Sangro Chambers
Resources
Burr: Suppressed information is being shared everywhere. No one seems to care
Macdonald: Can you really suppress information in a global media world?
https://www.stuff.co.nz/nz-news/360822927/can-you-really-suppress-information-global-media-world
Pearse: Tom Phillips injunction: Justice Minister Paul Goldsmith open to law change to address suppression breaches
Vance: Government to review ‘wild west’ internet
https://www.stuff.co.nz/national/4233501/Government-to-review-wild-west-internet
RNZ: Law Commission to review internet ‘Wild West’
https://www.rnz.co.nz/news/political/59561/law-commission-to-review-internet-‘wild-west‘
Tom Pullar-Strecker: Report on taming ‘wild west’ bloggers awaited
https://www.stuff.co.nz/technology/6084021/Report-on-taming-wild-west-bloggers-awaited
Law Commission: Regulatory gaps and the new media
https://www.lawcom.govt.nz/our-work/regulatory-gaps-and-new-media
Law Commission: Issues Paper
https://www.lawcom.govt.nz/our-work/regulatory-gaps-and-new-media/tab/issues-paper
Law Commission: Ministerial Briefing
https://www.lawcom.govt.nz/assets/Publications/MiscellaneousPapers/NZLC-MB3.pdf
Law Commission: Harmful Digital Communications – Draft Bill
https://www.lawcom.govt.nz/assets/Publications/Supplementary/NZLC-New-Media-Draft-Bill.pdf
Law Commission: Report
https://www.lawcom.govt.nz/our-work/regulatory-gaps-and-new-media/tab/report
No one appears to know that the penalty for breaching an injunction is contempt proceedings. The Contempt of Court Act 2019 has been around for a while but not referred to in the news media, which is surprising. Section 16(2) explains the procedure including the Solicitor General possibly enforcing.