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Refreshing the law of contempt - the new Contempt of Court Act 2019

September 26, 2019

Contacts

Partners Jania Baigent
Senior Associates Joanne Dickson

Whether you publish information for a living or as a side hustle, you will soon be able to find the bulk of the law of contempt of court in one place. The recently enacted Contempt of Court Act is intended to codify the common law on contempt and bring contempt law in line with the modern digital age.

Summary - What you need to know

The Act will apply to information that is published, whether it is through traditional media, on websites, in blogs, or through comments or posts in social media platforms. The Act will come into force on 26 August 2020, unless an order is made bringing it into force earlier.

The Act will not substantively alter the law of contempt in New Zealand.  

There are three key changes worth knowing about.  

  1. Several common law contempts have been abolished, but there are new statutory offences that cover largely similar grounds.

  2. Two new statutory defences have been created.

  3. Penalties for committing any of the new offences are clearly set out.

What is the Act intended to address?

Contempt law protects the administration of justice, largely by restricting freedom of expression – for example, through the use of orders suppressing the publication of the name of someone accused of committing an offence.

However, there are many recent examples where suppressed information has been widely published through social media and other internet platforms (either innocently or intentionally). A recent example that gained a lot of attention was the publication, through various means, of the name of the person accused of murdering British backpacker, Grace Millane, when the accused’s name was suppressed.

People need to know where the line between contempt and freedom of expression is drawn - especially since you can be imprisoned if you are held in contempt. Existing contempt law doesn’t do this - it is vague, uses outdated language and concepts, and is largely inaccessible to the public.

In addition, existing contempt law has arguably not kept up with the times and can have a chilling effect on freedom of expression. For example, people should be able to comment critically about the workings of the Court without fear of being convicted of the contempt of scandalising the court.

The new Act goes some way towards addressing these concerns.

What are the new offences?

There are several new offences, these include:

  • Publishing certain criminal trial information when there is a real risk that the publication could prejudice a person’s right to a fair trial. This offence relates to people arrested or charged with category 3 and 4 offences (eg murder, manslaughter, and other offences punishable by imprisonment for more than two years). It is also an offence to fail to comply with an order to take down, or disable public access to, information published in breach of this offence.
  • Wilfully disrupting the proceedings of a court, or disobeying any order or direction of the court in the course of a hearing of any proceeding.
  • Intentionally disclosing jury deliberations.
  • Publishing false statements about a judge or court when the person knew or ought reasonably to have known that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court, and there is a real risk that it could do so.

The Act preserves the power of the High Court to punish for contempt of court in circumstances where the Act does not apply.

When can you rely on the new statutory defences?

Two new statutory defences to the offence of publishing certain criminal trial information have been created. These defences protect:

  • a person that, at the time of publication and after taking all reasonable care, did not know or could not reasonably have known about a person’s arrest, charge or the possibility or existence of a jury trial; and
  • an online content host or distributor of a publication that, after taking all reasonable care, did not know or could not reasonably have known that it contained information that created a real risk of prejudicing any person’s right to a fair trial;

What about penalties?

Thirdly, the penalties for committing any of the new offences are clearly set out. They vary between the different offences. By way of example, an individual convicted of the new offence of publishing certain criminal trial information can face up to 6 months’ imprisonment or a fine of up to $25,000, and a body corporate can be fined up to $100,000.

What is contempt of court?

Contempt of court is an area of law that is important in a democracy. As stated by the New Zealand Law Commission, is designed to ensure that:

  • court hearings are not disrupted;
  • trials are not prejudiced by unfair publicity;
  • jurors decide cases only on lawfully admitted evidence;
  • judgments and court orders are enforced; and
  • the judiciary is protected from false and egregious attacks that undermine public confidence in its independence, integrity, and impartiality.

Contempt law prohibits and punishes conduct that runs counter to those goals.

In New Zealand, contempt of court is currently common law, so it is found in a combination of judicial decisions rather than written down in any one place. In the criminal context, it also has some cross-over with suppression in the Criminal Procedure Act.

The new Act rolls up the various common law contempts so they are found in one place, and attempts to make them more clearly applicable to the digital age.

For more information about how the Contempt of Court Act may impact your business or organisation, please contact us.

Contributors elizabeth.keall@simpsongrierson.com, tamara.wimsett@simpsongrierson.com