The Supreme Court overturned the Court of Appeal’s quashing of a takedown order of online reporting of the extensive criminal conviction of Damon Exley (“Appellant”). The substantive trial had already concluded, but this decision significantly expanded the availability of takedown orders for criminal defendants.
Background
The Appellant was a convicted sex offender who escaped from prison and while on the run committed a series of serious crimes. This offending attracted significant public interest and media reporting, including of his previous convictions. The Appellant applied for a takedown order under the Criminal Procedure Act 2011. The High Court granted this application, ordering media coverage of his previous convictions and character to be removed from the internet.
Takedown orders are used by the courts to direct the removal of specific information (such as an online news article) from publication that is deemed prejudicial to a defendant’s right to a fair trial. Often, as in this case, it involves reporting of a defendant’s character or previous convictions that might predispose a juror against the defendant.
NZME successfully appealed the takedown order in the Court of Appeal, which attached greater weight to the propensity evidence to be heard at trial. Propensity evidence shows a person’s character or predisposition to act in a particular way. Because evidence regarding the Appellant’s character and previous convictions would be given at trial regardless, the Court of Appeal considered that reporting outside trial on the Appellant’s previous convictions would do little to prejudice his case. The Court of Appeal also believed that the risk that jurors might ignore judicial directions against undertaking their own inquiries was overstated, pointing to studies that showed that the great majority of jurors understood and complied with their responsibilities.
Despite the substantive trial concluding and the Appellant returning to another lengthy prison sentence, the Supreme Court allowed an appeal on the takedown orders.
The case
The Supreme Court overturned earlier authority which required consideration of the right to free expression when determining takedown order applications. The Court held that the right to a fair trial is absolute; no other considerations, such as the right to free expression as enumerated in section 14 of the Bill of Rights Act, could prevail over the right to a fair trial. Despite the Criminal Procedure Act 2011 requiring an opportunity for the host of a publication to be heard on a takedown application, the Court held this was not legislative recognition that the court had to consider the right to free expression. The Court also noted its view that it did not consider takedown orders to be an unreasonable limit to free expression, as the right is exercised by the initial act of publication and the orders are only temporary in nature.
The Court determined that the test for making a takedown order was whether there was a real risk of prejudice to a fair trial. The reach of the publication could be considered, but if the material in question is highly prejudicial, that would be sufficient to justify a takedown order regardless of reach. The Court did not consider prospects of compliance with the decision, expecting media to adjust their practices to the requirements of the law but it did require that the takedown order should also be no greater in scope than is necessary to ensure a fair trial.
The Supreme Court noted recent law changes to strengthen jury directions, such as a new oath that jurors would not conduct their own research and fines for those who do. While these reforms were meant to reduce juror non-compliance with judicial directives not to self-investigate, the Supreme Court also took them as Parliament recognising jurors could not be trusted not to undertake their own research.
The Court also suggested that the Crown should support takedown orders itself where its test is met, and that prosecutors should even apply for them at times if the defence do not do so. This guidance was based on the duty of prosecutors to uphold the right to fair trial themselves. The Court gave an expectation that the Crown would reconsider an earlier decision not to update the Solicitor-General’s prosecution guidelines regarding takedown orders.
On the issue of whether the High Court should have accepted the Appellant’s application for a takedown order, the Supreme Court took a middle ground between the High Court and the Court of Appeal. It agreed that a takedown order should have been in place, but only for the URLs submitted by the Appellant’s counsel. The Court noted that not all of the Appellant’s criminal history was before the jury, and that the tone of the relevant reporting was inflammatory in prejudicial terms. That the material was highly prejudicial was enough to justify issuing a takedown order, given the isk to the Appellant’s fair trial rights if the material was accessed by a juror.
Result
The Supreme Court allowed the appeal, determining that the Court of Appeal was not correct to quash the High Court’s takedown order, to the extent that it related to the URLs identified in the takedown application. Defendants in high profile cases that attract media attention will now have a lower threshold to achieve takedown orders to limit publication of their alleged crimes and any criminal histories.
This judgement substantially lowered the bar for defendants in criminal trials to have suppression orders granted in their favour. That the right to a fair trial prevails over free expression is not a new development. However, the judgement has left the law in a contradictory position regarding the trust it places in juries. The Court could have taken an approach that limited the impact on the right to free expression by placing more weight on making juror’s compliance with judicial directions rather than removing access to information for everyone.
The judgment assumed that the takedown orders were necessary to protect the Appellant’s fair trial rights. In doing so it also displaced the presumption that jurors will comply with judicial directions, despite research to show that the vast majority of jurors do in fact understand their obligations. The scope of a takedown order is supposed to only be as extensive as is necessary to protect the right of a fair trial, but without emphasising other means of deterrence as the primary means of protecting fair trial rights, a takedown order will necessarily be more extensive than it otherwise needs to be.
While the new legislative measures to strengthen jury directions recognises the risk that they might undertake their own research, the Court could have also better recognised that they reduced the necessity of takedown orders.
While not central to the judgement’s reasoning (given its view that fair trial rights are paramount) its characterisation of the right to free expression is also concerning. Free expression is not simply exercised by a singular act of speech, but rather is the ongoing ability to impart views and information. That the Court described the right as ‘exercised’ by an initial act of publication is a substantial diminution that might have lead it to treat the impact of a takedown order lighter than it should have.
The right to free expression is not only a right to impart information, but also to seek and receive information. This recognises the right of journalists for example, to publish information but also the general public’s right to access that information. The judgement did not engage with this aspect of the right to free expression.
For further information on this case or similar issues, please contact Director Brigitte Morten.
