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As the internet blurs borders, law experts grapple with enforcing suppression orders

Steven Walton
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The Justice Precinct in Christchurch, which houses the city's District and High court.  Steven Walton

Suppression orders stop information spreading in a single country, but with the internet's global reach, law experts are now questioning if international law is needed to protect the legal system.

In December last year, the 27-year-old man accused of murdering British backpacker Grace Millane was granted interim name suppression.

This made it illegal to identify him in New Zealand.

Yet, the man's name was published by British newspapers and began trending online and on social media. 

Stuff reported three days after the man's court appearance that his name had been searched on Google over 100,000 times. 

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Grace Millane, a 22-year-old British backpacker, was killed last year during a trip to New Zealand. Facebook

'It's not an order which can be cast aside'

Law experts said Grace Millane's case highlighted the difficulties of controlling suppressed information beyond borders in the internet age.

"The question that we’re all struggling to answer is how do we deal with that going forward and still give true meaning to our own suppression orders," one of New Zealand's top barristers, Jonathan Eaton QC, said. 

"It's not an order that can be cast aside simply because public opinion doesn't support it," he added. 

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Jonathan Eaton QC said Grace Millane's case showed there are more steps that need to be taken to ensure a suppression order has its intended effect in high profile cases. Steven Walton

New Zealand's Justice Minister, Andrew Little, said what concerned him was that foreign journalists "decided they knew best". 

"In this digital age, when news can travel in a nano-second around the world ... the expectation is [foreign media] would respect the suppression orders," he said. 

University of Canterbury's Dean of Law, Ursula Cheer, said if people and the media get carried away with breaching an interim suppression order, "any lawyer worth their salt" would argue a fair trial was compromised.

She said the risk is then that a trial would fall over. 

President of the Criminal Bar Association of New Zealand Len Andersen said the inability to access a fair trial could be a ground for a defendant to be discharged.

In this video, Jonathan Eaton QC breaks down why defendants going through the New Zealand legal system must be guaranteed a fair trial.

'Extraordinary shortcomings'

After Grace Millane's high profile death, questions have been raised about the role played by social media and internet companies in spreading suppressed information.

The day after Millane's accused killer appeared in court, Google sent out an automated email that named him in the subject line, according to The Spinoff.

Eaton felt her case demonstrated "extraordinary shortcomings" in Google's processes, adding that they should be held accountable for errors. 

Andrew Little met with Google officials in December and March and was initially satisfied with their response.

But when the Minister contacted them again in July, Google described the Millane case as "relatively unique" and directed Little to a legal removal request page.

This response sparked a week-long standoff between Google and Minister Little.

During the standoff, Little filmed a "don't be evil" social media video and penned an opinion piece about the Millane case for The Spinoff.

During his standoff with Google, Andrew Little posted this video where he urged the company to embrace the message, "don't be evil".

Little told METRONEWS during the standoff that Google has "a platform that now can undermine the rules that the Judges have set for conducting trials."

The standoff ended when Google apologised to the Minister in a letter. The apology came the day after the Minister's opinion piece was published.

Google also announced in the letter that the Google Trends email service had been suspended in New Zealand.

Little was satisfied with the apology and said he expected to continue contact with Google in the future, adding that he's "got to keep the pressure on them".

"They still need to fix the problem with their processes for gathering up news and disseminating it," Little said.

Google refused multiple interview requests for this story, but said in a statement, "Google respects New Zealand law and understands the sensitivity around this issue."

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Google said in their latest letter to Minister Little that they'd like to build on the "constructive spirit" that emerged from the recent Christchurch Call. Steven Walton

'Everyone should be motivated'

Little said Grace Millane's case illustrated how easily suppression breaches happen. He said one solution would be talking with counterparts around the world.

The Grace Millane case was not the only high profile interim suppression order that had been widely breached in the past nine months.

George Pell's conviction for sex abuse was completely suppressed in Australia, yet his popularity on Google News peaked the same week of the suppressed verdict. 

This graph shows searches on Google News from Australia for George Pell. The tallest spike was the same week Pell was given a suppressed conviction, so this data suggests many Australians knew of the conviction, despite the suppression order.

After the Christchurch mosque shooting, a court order was made to pixelate the face of the alleged shooter, but some foreign media ran non-pixelated images of him gathered from social media. 

An international agreement with foreign governments could be the way to address and stop the global spread of suppressed information, according to law experts.  

Eaton and Little both agreed that it would be a good idea.

The Minister added that to stop suppression breaches abroad, "we probably need to have an appropriate agreement with that country". 

Some experts raised concerns about the feasibility of achieving consensus about international suppression law on a global scale. 

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University of Canterbury's Dean of Law, Ursula Cheer, said Governments have trouble controlling their journalists already and described the British media as "extremely powerful". Steven Walton

Cheer said the proposal was a good idea in theory, but noted that the way laws apply in each country is different.

National's Justice spokesperson, Mark Mitchell, said establishing a global law would be an "enormous" task.

"I would prefer to see media outlets, social media companies ... just come to some sort of agreement around a code of conduct themselves," he said. 

Ultimately, Mitchell felt if global laws prevented another situation akin to Grace Millane's, "then I think everyone should be motivated".