In August 2008, New Zealand judge, Justice David Harvey, made a ruling banning the publication of the names of two men who were charged with murder, on news websites. His main concern was the ability of jurors to Google the names of defendants before trials, and easily access information on their past criminal history. He argued that such information could potentially remain in the caches of Google permanently. He ruled that the names of the defendants could be published in print newspapers and discussed on television and the radio.
Justice Harvey’s unprecedented ban emphasizes the difficulty in balancing the various stakeholders’ interests: the rights of publishers, bloggers, and users of the Internet to disseminate and learn of important information, in contrast to the privacy interests of the defendants. Despite this ruling, the names have appeared on an online forum in New Zealand, and on a US blog (NZ Herald, Sept. 12, 2008). In the digital realm, jurisdictional boundaries are almost non-existent. Last week, APN and Fairfax newspaper groups who publish digital versions of their newspapers, successfully applied to have the suppression lifted. (The Press, Sept. 20, 2008).
It is likely that a similar conclusion would be reached in Canada. Domestic intellectual property case law has increasingly favoured the rights of users. In copyright law, fair dealing is frequently used to justify the reproduction of copyrighted work in the public’s interest. The publication of the names of criminal defendants can arguably be seen as serving the same purpose.
The Personal Information Protection and Electronic Documents Act (PIPEDA) seeks to govern the use of personal information in a way that protects the privacy of individuals, and the right of organizations to utilize information. Most importantly, PIPEDA imposes a threshold of reasonableness on the use of personal information by organizations. Use is restricted “for the purposes that a reasonable person would consider appropriate in the circumstances.” Analyzing the statutory and common law frameworks can delineate these circumstances. Reading PIPEDA in light of the Copyright Act, again instigates a balancing act. The notion of media neutrality articulated in section 3 (1) of the Copyright Act and case law such as Robertson v. Thomson, indicate that the form of publication is constantly changing, and digital reproductions are acceptable so long as publishers do not decontexualize the essence of the work. A mere digital replica undoubtedly still maintains the essence of the newspaper.
Justice Harvey does have a valid concern. However, what is already released in the public domain in some form will eventually enter the digital world. Thus, name suppression should either be applied consistently over all mediums, or not initiated at all. But a complete ban on the publication of names raises additional concerns about the public interest, and does not seem realistic. Perhaps this means that jurors will have to be instructed not to search the web before a trial. That too seems impossible when the information is a mere click away. This is simply the nature of intellectual property today.