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Speaker 1: Details about the Tom Phillips case will remain suppressed for

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Speaker 1: at least another month. Media police Auto Atomitiki have been

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Speaker 1: prevented from publishing certain details related to the case since

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Speaker 1: Tom Phillips and his kids were found last Monday. Now

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Speaker 1: the High Court in Wellington will hear the matter again

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Speaker 1: in mid October. Meanwhile, the details are spreading across social

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Speaker 1: media with no known repercussion so far. Now Nicki Chamberlain

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Speaker 1: is a senior lecture at Auckland University's Law School and

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Speaker 1: with us Hey Nikki Hi. Howther, when the court considers

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Speaker 1: the injunction like they did yesterday and like they will

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Speaker 1: do in about a month's time, do they consider the

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Speaker 1: fact that the information is spreading on social media?

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Speaker 2: Yes, they will do so. There is normally for an

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Speaker 2: injunction based on private information three things the court looks at.

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Speaker 2: Is there a serious question to be tried, the information

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Speaker 2: is private, where does the balance of convenience lie? And

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Speaker 2: what is in the interest of justice? Now that third

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Speaker 2: criteria interest of justice, the court will look at how

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Speaker 2: widely known the facts are that they are trying to suppress,

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Speaker 2: and if it is seen to be fairly common knowledge

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Speaker 2: in the public then it will be seen as unfairly

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Speaker 2: prejudicial to keep the injunction in place. So that is

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Speaker 2: something that the courts will look at. And in fact,

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Speaker 2: there is precedent of a case, interestingly back in the

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Speaker 2: eighties where there was an injunction in place, but because

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Speaker 2: information was published by media outlets in New Zealand and

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Speaker 2: overseas who were not subject to the injunction, the court

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Speaker 2: ended up withdrawing the injunction because they said it was

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Speaker 2: unfair on those media outlets that were bound by it.

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Speaker 2: So I think what we'll see here is a consideration

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Speaker 2: of just how widely known these facts are and whether

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Speaker 2: it is oppressive to continue the injunction.

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Speaker 1: So would you in your opinion, then what would you say?

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Speaker 1: If this continues to spread at the rate that it is,

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Speaker 1: the court will eventually be forced to lift it.

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Speaker 2: I think that they will. I think the problem is

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Speaker 2: going to be, well, there's a twofold problem, Heather. First,

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Speaker 2: you've got over news media, right, So the injunction applies

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Speaker 2: to those parties who are subject to it, which includes

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Speaker 2: the New Zealand media. If you have overseas media who

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Speaker 2: are discussing matters that are subject to the injunction. You're

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Speaker 2: going to have issues and enforcing the injunction overseas because

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Speaker 2: you're going to have to get the injunction the court

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Speaker 2: order recognized in that foreign jurisdiction to have any effect

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Speaker 2: and be enforced. That's issue. One issue too, is that

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Speaker 2: the injunction applies, as you said, to media organizations, the police,

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Speaker 2: and araga tamariki. The problem is is that there might

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Speaker 2: be individuals right within New Zealand who are not subject

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Speaker 2: to the terms of the injunction, who might be posting

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Speaker 2: this on social media. Now, how do you stop that occurring. Well,

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Speaker 2: unless you can get those individuals subject to the injunction itself,

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Speaker 2: you need to be able to somehow get the social

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Speaker 2: media companies as a party to the injunction. And the

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Speaker 2: issue around that is you'll have your social media companies,

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Speaker 2: which a are overseas, so it's hard to enforce an

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Speaker 2: order against them. But be what they will say is is, well, look,

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Speaker 2: we need reasonable notice because we can't possibly surveil millions

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Speaker 2: of people on social media. So as long as you

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Speaker 2: give us reasonable notice that there's information up on you know,

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Speaker 2: the facebooks of the world and Twitter, et cetera, then

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Speaker 2: we can pull down the information. So there's a number

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Speaker 2: of problems within the scope of the injunction and making

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Speaker 2: sure that it stays in effect. You know, we have

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Speaker 2: a saying in the United States, Heather, you've probably heard

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Speaker 2: of this, the horse has already bolted. It's too late

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Speaker 2: to shut the barn door now. And that's and I

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Speaker 2: kind of feel like in this situation it may get

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Speaker 2: to the stage where where that's the position in Layman's terms,

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Speaker 2: because you know, injunctions are great, but you've got to

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Speaker 2: get them issued immediately to stop the leak of the

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Speaker 2: information in the first place.

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Speaker 1: Right, So yeah, and I can imagine also just the

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Speaker 1: the logistics of like a Facebook or a Twitter or

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Speaker 1: what for having to go and then track down the

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Speaker 1: comments and get them deleted. That must be a reasonably

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Speaker 1: Is that a difficult task or is that an easy

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Speaker 1: thing for them to do?

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Speaker 2: Well? The law says actually at the moment, So for example,

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Speaker 2: in defamation law, if you make a complaint that somebody

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Speaker 2: is defaming you, they have a reasonable period of time.

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Speaker 2: They have to have reasonable notice and a reasonable period

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Speaker 2: time to remove it. And I would assume that something

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Speaker 2: like that would be in this situation unless there was

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Speaker 2: laws that were to created to circumvent that. Now if

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Speaker 2: you did that, you could have arguments and again we're

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Speaker 2: getting into some policy issues here that it's a cost

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Speaker 2: of doing business. Right, So the fact that Facebook wants

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Speaker 2: to operate in New Zealand, we're going to enact laws

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Speaker 2: which will be more prohibitive on them and put the

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Speaker 2: onus on them to monitor. Now, how cumbersome is that

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Speaker 2: going to be? Well, I imagine it could be quite cumbersome.

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Speaker 2: But again, you know, with technology and you know various

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Speaker 2: ways to to search what people are posting about. I'm

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Speaker 2: sure you could have buzzwords, right, which could filter through posts.

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Speaker 2: So that's something that a social media technologist would be

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Speaker 2: able to comment on.

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Speaker 1: Brilliant het, Niki, it's been fascinating to talk to you.

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Speaker 1: Thank you very much, Nikki Chamberlain, Senior Lecture of Auckland

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Speaker 1: UNI Law Faculty. So she thinks the injunction will be

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Speaker 1: lifted at some stage. For more from Hither Duplessy Allen

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