Nikki Chamberlain: Senior law lecturer discusses media suppression in Tom Phillips' case

A law expert thinks an injunction suppressing key details in the Tom Phillips case will be difficult to keep in place.

Media and authorities have been suppressed from discussing certain details related to the case since the Marokopa fugitive and his children were found last Monday.

Media lawyers have been advocating for the right to report and the Wellington High Court will hear the matter again next month.

Senior Law Lecturer Nikki Chamberlain told Heather du Plessis-Allan that it's very difficult to stop individuals discussing the details on social media.

She says unless you can make each individual subject to the injunction, you'd have to make the entire social media platform a party in the court order.

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Episode Transcript

Speaker 1 (00:00):
Details about the Tom Phillips case will remain suppressed for
at least another month. Media police Auto Atomitiki have been
prevented from publishing certain details related to the case since
Tom Phillips and his kids were found last Monday. Now
the High Court in Wellington will hear the matter again
in mid October. Meanwhile, the details are spreading across social
media with no known repercussion so far. Now Nicki Chamberlain

(00:22):
is a senior lecture at Auckland University's Law School and
with us Hey Nikki Hi. Howther, when the court considers
the injunction like they did yesterday and like they will
do in about a month's time, do they consider the
fact that the information is spreading on social media?

Speaker 2 (00:38):
Yes, they will do so. There is normally for an
injunction based on private information three things the court looks at.
Is there a serious question to be tried, the information
is private, where does the balance of convenience lie? And
what is in the interest of justice? Now that third
criteria interest of justice, the court will look at how
widely known the facts are that they are trying to suppress,

(01:02):
and if it is seen to be fairly common knowledge
in the public then it will be seen as unfairly
prejudicial to keep the injunction in place. So that is
something that the courts will look at. And in fact,
there is precedent of a case, interestingly back in the
eighties where there was an injunction in place, but because

(01:24):
information was published by media outlets in New Zealand and
overseas who were not subject to the injunction, the court
ended up withdrawing the injunction because they said it was
unfair on those media outlets that were bound by it.
So I think what we'll see here is a consideration
of just how widely known these facts are and whether
it is oppressive to continue the injunction.

Speaker 1 (01:45):
So would you in your opinion, then what would you say?
If this continues to spread at the rate that it is,
the court will eventually be forced to lift it.

Speaker 2 (01:53):
I think that they will. I think the problem is
going to be, well, there's a twofold problem, Heather. First,
you've got over news media, right, So the injunction applies
to those parties who are subject to it, which includes
the New Zealand media. If you have overseas media who
are discussing matters that are subject to the injunction. You're
going to have issues and enforcing the injunction overseas because

(02:15):
you're going to have to get the injunction the court
order recognized in that foreign jurisdiction to have any effect
and be enforced. That's issue. One issue too, is that
the injunction applies, as you said, to media organizations, the police,
and araga tamariki. The problem is is that there might
be individuals right within New Zealand who are not subject

(02:37):
to the terms of the injunction, who might be posting
this on social media. Now, how do you stop that occurring. Well,
unless you can get those individuals subject to the injunction itself,
you need to be able to somehow get the social
media companies as a party to the injunction. And the
issue around that is you'll have your social media companies,

(02:58):
which a are overseas, so it's hard to enforce an
order against them. But be what they will say is is, well, look,
we need reasonable notice because we can't possibly surveil millions
of people on social media. So as long as you
give us reasonable notice that there's information up on you know,
the facebooks of the world and Twitter, et cetera, then
we can pull down the information. So there's a number

(03:21):
of problems within the scope of the injunction and making
sure that it stays in effect. You know, we have
a saying in the United States, Heather, you've probably heard
of this, the horse has already bolted. It's too late
to shut the barn door now. And that's and I
kind of feel like in this situation it may get

(03:41):
to the stage where where that's the position in Layman's terms,
because you know, injunctions are great, but you've got to
get them issued immediately to stop the leak of the
information in the first place.

Speaker 1 (03:54):
Right, So yeah, and I can imagine also just the
the logistics of like a Facebook or a Twitter or
what for having to go and then track down the
comments and get them deleted. That must be a reasonably
Is that a difficult task or is that an easy
thing for them to do?

Speaker 2 (04:09):
Well? The law says actually at the moment, So for example,
in defamation law, if you make a complaint that somebody
is defaming you, they have a reasonable period of time.
They have to have reasonable notice and a reasonable period
time to remove it. And I would assume that something
like that would be in this situation unless there was
laws that were to created to circumvent that. Now if

(04:30):
you did that, you could have arguments and again we're
getting into some policy issues here that it's a cost
of doing business. Right, So the fact that Facebook wants
to operate in New Zealand, we're going to enact laws
which will be more prohibitive on them and put the
onus on them to monitor. Now, how cumbersome is that
going to be? Well, I imagine it could be quite cumbersome.

(04:55):
But again, you know, with technology and you know various
ways to to search what people are posting about. I'm
sure you could have buzzwords, right, which could filter through posts.
So that's something that a social media technologist would be
able to comment on.

Speaker 1 (05:10):
Brilliant het, Niki, it's been fascinating to talk to you.
Thank you very much, Nikki Chamberlain, Senior Lecture of Auckland
UNI Law Faculty. So she thinks the injunction will be
lifted at some stage. For more from Hither Duplessy Allen
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