For the first time, a New Zealand court has ordered a media outlet to remove online reporting of an historic criminal conviction, because of the operation of the Criminal Records (Clean Slate) Act 2004.

Litigation Partner Jania Baigent spoke to the NBR about this legally significant decision where a NZ court ordered a news outlet to take down accurate reporting of a criminal conviction, because the conviction was spent under the Clean Slate Act. Read Jania's interview here [paywall].

The Clean Slate Act is meant to give people with minor convictions a fresh start, but in the digital age, details of their past offending can remain just one internet search away.

In Braddon v Stuff^[1], the District Court found that online access to an article about a conviction that had become spent under the Clean Slate Act breached the Harmful Digital Communications Act 2015 (HDCA), and ordered the article's removal.

While, unlike in many overseas jurisdictions, there is no formal “right to be forgotten” online in New Zealand, the judgment reflects that the HDCA may be used to achieve the same practical outcome.

The facts

Braddon v Stuff concerned an online article published by Stuff reporting on Mr Braddon’s 2018 assault conviction. His conviction later became “spent” under the Clean Slate Act. Under the Act, individuals with minor convictions not resulting in imprisonment (for example careless driving resulting in a fine) are treated for most purposes as not having a criminal record once seven years have passed.

Despite the application of the Clean Slate Act to Mr Braddon, Stuff’s report of his historic conviction remained accessible online. Mr Braddon argued that Stuff should be required to remove the article because its ongoing availability caused him serious harm and breached Principle 1 of the HDCA:

    “A digital communication should not disclose sensitive personal facts about an individual.”

Evidence of the “serious harm” before the Court indicated that a prospective employer had withdrawn a job offer after discovering the details of Mr Braddon’s conviction online. Mr Braddon also gave evidence of anxiety, shame, depression and withdrawal from professional and community activities caused by the article’s ongoing accessibility.

After a detailed analysis of the competing public and private interests, the Court concluded in Mr Braddon’s favour, and ordered Stuff to remove the article.

 Why did the Court order removal of the article?

Even where a digital communication breaches the HDCA and causes serious harm, the Court has a discretion as to whether to make a take down order. In doing so, it is required to consider the factors prescribed in the Act. These include whether the communication is in the public interest.

Stuff accepted that the article was a digital communication under the HDCA but disputed that the requisite level of “serious harm” had been met. More broadly, it urged the Court to take a “higher” view when exercising its discretion, noting that the application was “uncharted territory” in terms of the HDCA.

To this end, Stuff argued that the HDCA was not intended to be used as a tool to remove legitimate news reports, and that there were strong public interest factors favouring keeping the article online, including open justice and the media’s freedom to report on court proceedings. It submitted that court proceedings and convictions are fundamentally public facts, and that there is no reasonable expectation of privacy in fair and accurate reporting of them. Stuff also argued that the public interest does not disappear merely because proceedings are historical.

In weighing up the competing factors, the Court found that public interest in continued publication may diminish over time, particularly where the offending is minor, the conviction is spent and there is no ongoing public relevance. It noted that the purpose of the Clean Slate Act (to allow individuals with qualifying convictions to move on from historical offending and participate fully in society) risks being undermined if spent convictions remain readily accessible through an online search.

After careful analysis, the Court concluded that the requirements of the HDCA had been met in Mr Braddon’s case, and that it was appropriate to order Stuff to remove all references to his spent conviction.

What does this mean in practice?

The Court’s decision is legally significant, effectively providing a “right to be forgotten” which, unlike in many other jurisdictions, is not recognised in New Zealand legislation. It reflects increasing judicial recognition of privacy rights and a willingness to expand the scope of the HDCA beyond what was originally envisaged at the time of its drafting.

However, the Court was careful to make it clear that the decision does not open the floodgates for applications against media organisations, nor does it require them to proactively review their publications to identify spent convictions. Cases in this area will remain fact specific.

It is also important for potential applicants to be aware of the importance of naming the correct respondent. Orders could be made against Stuff because it was the publisher of the article and had the ability to remove it. In contrast, the courts have declined to make take down orders under the HDCA against search engines which cannot control the content of third party web pages. By extension, this reasoning should also apply to operators of AI models which provide links to third party content.

Our specialist team is here to answer any queries you may have about the issues raised in this article.

Special thanks to Lucy Reilly and Holly Soar for their assistance in writing this article.