Solicitor-General v Newsroom NZ Limited

[2020] NZHC 3150

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-715

[2020] NZHC 3150

IN THE MATTER OF

an application for orders restraining publication, and interim injunction

UNDER THE

Senior Courts Act 2016 and Family Court Act 1980

BETWEEN

SOLICITOR-GENERAL

Plaintiff/Applicant

AND

NEWSROOM NZ LIMITED

Defendant/Respondent

Teleconference:	27 November 2020
Appearances:	D J Perkins and K Laurenson for the Plaintiff/Applicant T Castle for the Defendant/Respondent
Judgment:	27 November 2020

JUDGMENT OF COOKE J

(Interim injunction)

[1]                The Solicitor-General has applied for an urgent without notice injunction preventing the respondent, Newsroom NZ Limited (Newsroom) from continuing to publish a video of 35 minutes and 9 seconds on its website, and related articles and photographs.

[2]                The application was heard by me by telephone at 2.15 this afternoon. The application was advanced by way of a memorandum of counsel which attached the relevant information and which also gave the reference to the video link, which I was

SOLICITOR-GENERAL v NEWSROOM NZ LIMITED [2020] NZHC 3150 [27 November 2020]

able to watch. Mr Castle appeared for Newsroom, although he had been given less than two hours’ notice of the application.

[3]                After hearing from counsel I indicated that I would grant the application on the terms sought, and that I would endeavour to release very brief written reasons as soon as possible, together with directions for the hearing on the on notice application for the injunction.

[4]These are the brief written reasons I referred to when making that decision.

Background

[5]                In describing the background to the matter I will endeavour to do so in a way that does not involve providing details of the relevant children involved so that these written reasons can be considered without any concern about inappropriate identification.

[6]                Newsroom’s article concerns four children from the same birth family who had been placed in the foster care of a family in the South Island. The foster children are Māori, and the foster parents were Pākehā.

[7]                Newsroom’s article indicates that when the children were placed with this family there was a promise given to the children that this would be their home for life. However after a period suggested to be nearly two years a decision was made to relocate the children to the foster care of whānau relatives in the North Island. Although the article focuses on the actions of Oranga Tamariki in this respect, the decision to move the family to the care of the relatives in the North Island was made by the Family Court.

[8]                The video, and the accompanying written articles and photographs focus on the significant emotional impact involved in this relocation. The Pākehā foster parents are interviewed, and describe the effects of the decision. The video shows the moment when Oranga Tamariki arrives at the home to take the children, which is obviously distressing. The video also involves commentary on the situation from those having specialist knowledge in the area.

Basis of the application

[9]Section 11B of the Family Court Act 1980 provides:

11B     Publication of reports of proceedings

(1)Any person may publish a report of proceedings in the Family Court.

(2)Subsection (1) is subject to subsection (3).

(3)A person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information where—

(a)a person under the age of 18 years—

(i)is the subject of the proceedings; or

(ii)is a party to the proceedings; or

(iii)is an applicant in the proceedings; or

(iv)is referred to in the proceedings; or

(b)a vulnerable person—

(i)is the subject of the proceedings; or

(ii)is a party to the proceedings; or

(iii)is an applicant in the proceedings.

(4)However, subsection (3) does not apply to—

(a)a report of proceedings in a publication that—

(i)is genuinely of a professional or technical nature (including a publication that is intended for circulation among members of the legal or medical professions, officers of the public service, psychologists, counsellors, mediators, or social workers); and

(ii)does not include the name of—

(A)     any person under the age of 18 years who is the subject of the proceedings, or who is referred to in the proceedings:

(B)     any vulnerable person who is the subject of the proceedings:

(C)     any parties or applicants in the proceedings where subsubparagraph (A) or (B) applies:

(D)     any school that a person who is the subject of proceedings under the Oranga Tamariki Act 1989 is or was attending, or any other particulars likely to lead to the identification of that school:

(b)a publication of statistical information relating to the proceedings.

(5)The court may grant leave under subsection (3) with or without conditions.

(6)Every person who contravenes this section commits an offence against this Act and is liable on conviction,—

(a)in the case of an individual, either to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b)in the case of a body corporate, to a fine not exceeding

$10,000.

(7)Subsection (6) does not limit the power of a court to punish any contempt of court.

(8)This section is subject to any other enactment relating to the publication or regulation of the publication of reports or particulars of a Family Court proceeding.

[10]Section 11C provides:

11C     Meaning of identifying information

(1)For the purposes of section 11B, identifying information means information relating to proceedings that includes any name or particulars likely to lead to the identification of any of the following persons:

(a)a party to the proceedings:

(b)an applicant in the proceedings:

(c)a person who is the subject of the proceedings:

(d)a person who is related to, or associated with, a person referred to in paragraphs (a) to (c) or who is, or may be, in any other way concerned in the matter to which the proceedings relate (for example, a support person for a party).

(2)For the purposes of section 11B in relation to proceedings under the Oranga Tamariki Act 1989, identifying information also includes the name or particulars likely to lead to the identification of any school that a person the subject of the proceedings is or was attending.

[11]            The application for an injunction relies on the Court’s inherent jurisdiction. The Court has an inherent jurisdiction to grant an injunction to prevent conduct constituting a contempt of court.1 That jurisdiction most commonly arises in relation to publication that has the capacity to unduly prejudice criminal proceedings, but it is not limited to that. The statutory protection created by s 11B protects the underlying proceedings in the Family Court, and actions that would constitute contravention of  s 11B can amount to a contempt of court. That is recognised by s 11B(7). I accept, therefore, that the High Court has an inherent jurisdiction to injunct activity that involves a contravention of the requirements of s 11B just as much as any other conduct involving a contravention of court orders.2

Submissions

[12]            Mr Perkins for the Solicitor-General identified that the relevant publication here infringed s 11B because the cumulative effect of the information set out in the story, particularly the video, meant that the identity of the children was made known.

[13]            He said that the information clearly related to court proceedings as that was given a broad interpretation.3 In terms of whether the information would “likely lead to identification” as required for a contravention, he accepted that the wider general public would not be able to identify the children, but that those who had some information that allowed them to put “two and two” together would be able to do so, such as those who knew the South Island family more remotely, or were associated with the school. In that respect he relied on the analogous application of the statutory suppression provisions considered by the Court of Appeal in R v W.4 He also emphasised the importance of the protection of the children which was at the heart of the matter.

[14]            Mr Castle emphasised the extreme breadth of the orders being sought by the Solicitor-General which he described in the nature of a gagging order. He contended it was not reasonably necessary to make such extreme orders when Newsroom was

1      Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1 (CA); and Gisborne Herald Ltd v Solicitor-General [1995] 3 NZLR 563 (CA).

2      See also Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.

3      Television New Zealand Ltd v Solicitor-General [2008] NZCA 519, [2009] NZFLR 390.

4      R v W [1998] 1 NZLR 35 (CA).

acting responsibly in editing out material that could lead to identification in the prohibited way. He emphasised that Newsroom had already modified its story and was prepared to edit further.

[15]            He also explained that the story was based on the traumatic effect on the children, and that there had already been publicity about it from other sources, including from the North Island whānau who had published information on Facebook.

[16]            He contended that the suggestion that Newsroom be confined to more academic comments of a general nature on the topic would involve a significant infringement of media freedoms.

Analysis

[17]            I accept that there is a strong prima facie case that the articles involve a contempt of court, and that a basis to grant what is in effect an interim “take down” order arises.

[18]            First I accept that the articles likely involve a report of proceedings that have taken place in the Family Court. A broad definition of that concept was adopted by the Court of Appeal in Television New Zealand Limited v Solicitor-General.5 In doing so the Court differentiated between publications that were about the particular matters raised in the proceedings, and more abstract articles. The Court said:

[55] … there is no prohibition upon the publication of anonymised or abstract reports or information in a particular case. Publication of the fact of a particular kind of case and its characteristic features is not inconsistent with the purpose of [the prohibition] because such “abstract” publication would not identify the parties involved or other details that have the effect of identifying or exposing them. This would meet the public interest in knowing about what has happened in the courts without undermining the purpose of the section. For the purpose of [the prohibition] “report” need not entail detail or analysis, but it would entail particularisation that has the effect of exposing parties’ and children’s identities and their connection to guardianship proceedings.

[19]            That approach seems to me to apply equally to s 11B. It seems to me that the video and related articles are reporting on the outcome of a decision made by the

5      Television New Zealand Ltd v Solicitor-General, above n 3.

Family Court to move the children from one foster family to another, with the details involved in the case being outlined. It seems clear that this is a report about the Court’s decision, and its outcome.

[20]            The more difficult issue concerns whether the publication of particulars are “likely to lead to the identification” of persons protected by s 11B, and specifically the foster children. There will obviously be people associated with those who are involved in the proceedings. Those associates will be aware of the identities of the children. The immediate associates of the South Island family, and the North Island family will be examples. The Newsroom publications do not, of course, identify the protected persons for them. They know their identity already.

[21]            I also accept that the steps that are being taken by Newsroom will prevent the general public identifying the protected persons when watching the video and reading the articles. The faces of the children, and the South Island foster parents who are interviewed, are pixelated. Their precise location in the South Island is not identified, and the North Island whānau are not shown or identified at all. So for a member of the general public viewing the video and reading the related articles, the identity of the protected people would not be revealed.

[22]            But there is an important group of people in between. They are people who have some knowledge that would enable them to work out the identity of the protected persons once seeing the video. The video shows the South Island family’s home environment, their voices are not disguised, it describes the former occupation of the mother, and how the family’s personal circumstances changed as a consequence of the foster arrangements. There is also video footage of the wider community that were present to support them when Oranga Tamariki came to pick up the children. There is also video footage of the children and photographs of the children that show them except that their faces are pixelated. Their voices can be heard.

[23]            It seems to me that there will likely be members of the wider localised community who would identify who the protected persons are from viewing the video, or reading the associated articles. That may also be true of those associated with the North Island whānau. Indeed Mr Castle indicated that there had been Facebook

postings by the North Island whānau about an expectation of receiving foster children, so it seems strongly arguable that they would be able to work out the identity of the people in the video with that kind of information.

[24]            What then is the audience that the statute is contemplating when speaking of particulars likely to lead to identification? It seems to me that the answer to that question is any persons who do not already know the identification but for publication of the particulars. Whilst it may be necessary for people to have some knowledge before they can make the connections that will lead to identification, it is precisely those persons that are presumably the focus of the protection contemplated by s 11B. Privacy may be most important in relation to persons who are part of the community associated with the protected persons.

[25]            This media coverage goes to the very heart of the decision made by the Family Court, and because of the very nature of the detailed assessment of the impact of the decision on the South Island family a considerable amount of information concerning that family and their connection with the children is provided. But it is for that very reason that such particulars is likely to lead to their identification.

[26]            I recognise that the consequence of this analysis is that it may be very difficult for Newsroom to engage in the kind of media coverage that it is seeking to engage in at all. The impact of this story arises because of the details concerning this particular family. Seeking to make editorial changes to the video, and to the articles, to achieve compliance with s 11B  may be difficult.  But it may be that this is the very point of  s 11B — the media are prohibited from engaging in this kind of detailed story about a particular Family Court decision concerning particular children, and other protected persons, when it will naturally identify them, particularly to those who know of them.

[27]            I accept that this means that an injunction prohibiting the publication, or continued publication, involves a significant intrusion into media freedom. But it may be that is precisely what s 11B contemplates. A media organisation will need leave from the Family Court under s 11B(3) to publish such material. In any event, for the purposes of the without notice interim injunction I am satisfied it is appropriate to

order that the publication cease — effectively a “take down” order — until an on notice application is able to be heard by the Court.

[28]            In reaching that decision, it seems to me that to delay further publication until the matter is fully argued is appropriate. It will prevent any continued harm from the contravention of s 11B from taking place. Fuller media reporting can take place should that ultimately be determined to be permissible. In other words any legitimate media coverage will simply be delayed.

[29]For these reasons I granted the application in the terms sought.

[30]            I also discussed with counsel a timetable for hearing the on notice application and the following timetable was agreed:

(a)The Solicitor-General is to file and serve all documents including submissions in support of the with notice application by 4 pm Monday 30 November 2020.

(b)Newsroom is to file and serve all papers including submissions in opposition by 4 pm Friday 4 December 2020.

(c)The application is to be given a hearing following consultation with counsel, preferable in the following week. One half day is required.

Cooke J

Solicitors:

Crown Law for the Plaintiff/Applicant

Tim Castle for the Defendant/Respondent