How to address the problem of the Googling Juror by taking down prejudicial material from online sources

1. Diluting
Prejudice
“Take Down Orders” and the “Googling
Juror”

2. Overview
• Aspects of Information
• Why Do Jurors Google?
• Dealing with the
problem – Directions or
Takedown

3. Pre-Digital
Information
Qualities

4. Partial Obscurity - Elements
• Information that may be recalled in part
• Details obscure
• Thus bringing into play…

5. May have
been in the
public arena
Information
later recalled
in part
A broad sketch
of information
remain
Details
obscure

6. Also known as the fade
factor

7. Practical
Obscurity -
Elements
• Available information that is
difficult to access
• E.g – newspaper archives
• Lack of index
• Complex to access

8. Identifying
Identifying the
Information
Locating
Locating the
Information
Accessing
Accessing the
Information

9. Information
Flows

10. User to
source
Applicable to
hard copy
situations
One to many
delivery
Applicable to
radio or TV

11. The Problem
with the
Internet
Challenges to Pre-Digital Information

13. Digital Paradigm qualities distinguish digital
information from that of the pre-digital paradigm

14. • Qualities may be
• Environmental
• Technical
• User Associated

15. Significant
Qualities
Exponential
dissemination
Information
persistence
Information
searchability and
retrievability

16. Exponential Dissemination=
going viral

17. • Information persistence =
the document that does not
die.
• The Internet as “digital
memory”
Viktor Meyer-
Schonberger

18. Searchability
• User associated quality
• Digital format enables
searchability

19. Retrievability
• The other side of searchability
• Reverses the traditional information flow
• All digital information flows to the user.

20. • Challenge partial and
practical obscurity
• Immediacy of original
publication
• Presented in its “news
format”

21. Replication and
recovery of earlier
information
Presents a
challenge to fair
trial rights.

22. “Historic
information”
becomes today’s
information
Internet allows for
preservation of
information in its
“first read” format
Impact of
publication is
maintained

23. • Search engines enable
information recovery
• Only require a few
identification
particulars
• Internet users’
capabilities to find
information are
increasing.

24. If it is on the
Internet it is
retrievable.

25. The Googling Juror

26. The Problem
New Zealand has wide incidence of
Internet use
A 2017 InternetNZ survey revealed
93% of New Zealanders were
Internet users
Overseas studies reveal that in some
cases jurors seek out information
about the case on the Internet

27. A New Zealand Example
R v B – Court of Appeal – recognized the impact of
the Internet
Recognised persistence of information
Publicity about a defendant can no longer be
assumed to be of only transitory significance.

28. Some Other Examples
• R v Harris - juror enquiries about
burden of proof and reasonable doubt.
• R v V.V. Reddy – juror enquiries about how
DNA matches were obtained

29. The Challenge

30. Why Do Jurors Go Online
• Because they can
• Reversed information flows
• Anonymity – no one will
know
• The Online Disinhibition
Effect – aka Dissociative
Enablement
• Different rules appear to
apply online
• Internet democratization
contributes to a
minimization of authority
norms

31. Addressing the
Problem

32. How do we deal with a
problem
• That occurs surreptitiously
• That has multiple drivers
• That arises from
dissatisfaction with the trial
process as an information
system
• Empowered by an
encyclopedic knowledge
base

33. Is the answer
“Faith” in Judicial
Directions?

34. Examples from the cases
Moore J
R v Tarapata
Wylie J
Y v R

35. Tarapata
Take down orders to remove direct and indirect references to an
earlier trial of the accused – interim onlyTake down
Search engines required to disable any and every link arising from
certain searchesSearch
Scope of the orders was very wideScope

36. News Media Moves In
• Media applied to set orders
aside
• Orders were a limit on
freedom of expression
• Judicial directions should be
followed
• Prejudice to the media –
scope of the orders and
compliance problems
• Problems identifying content
by search engines

37. Risk Evaluation
Jurors were
unlikely to research
Absence of residual
memory or public
consciousness of
earlier events
No real or
substantial risk that
a determined or
irresponsible juror
would undertake
his own Internet
enquiries

38. Y v R
Take down orders for 9
identified articles
which contained
prejudicial information
Media opposed –
argued the material
was historic
Little public interest in
the content
Juror would have to
undertake a search
Risk could be mitigated
by directions

39. Issues
• Tension between freedom of
expression and fair trial rights
• Risk to fair trial rights must be
real rather than a remote
possibility
• Real risk – more than speculative
– likelihood of prejudice to
administration of justice

40. Reality of Risk
• Assumption that jurors would abide
judicial directions
• Court must be satisfied jurors may be
inclined to seek out information despite
directions
• Distinction between a high profile case
and one where information was
“historic”
• Oppressive nature of compliance
• Alteration of historic record if
information could not be restored

41. Other
Elements
Unlikely a potential juror would
seek out the information
Directions not to seek out
information could be extensive
and detailed
Remind the jury of breach of
court orders, contempt and
liability for penalties

42. Addressing
the Problem
Take Down Orders

43. Evaluate the
Content
How is the content prejudicial –
must relate to defendant
character or trial issues?
Does the content have a
“propensity” element?
Important when it comes to
justifying a freedom of expression
limitation.

44. Precision in
Identification
Demonstrate likelihood of retrieval –
search parameters
Screen dumps of the search results and
content
Record the search rankings
Repeat searches over a period of days or
weeks to establish ranking consistency
Ranking patterns may provide indication of
retrieval likelihood

45. Bringing it
Together
Comprehensive memorandum identifying
Nature of prejudice Necessity for Orders
Incorporate in an affidavit with copies of
articles, screendumps and URLs
Record search process and methodology

46. Scope of the Order
Only necessary to
dilute prejudicial
effect of content
Duration of order
– limited time
frame

47. If the Budget Allows
• Reputation Management
Consultant
• Analysis of all the potentially
prejudicial material available
• May go beyond news
websites and include social
media – Facebook, Twitter,
Instagram etc

48. Dealing With Google
• Google will de-index identified URLs
• Deindexing – the URL and link do not
appear on a search
• Following the Google Spain decision
(right to be forgotten) Google
instituted a de-indexing process
• Copy of a Court Order is of strong
persuasive effect on decision to de-
index

49. Conclusion

50. Final Thoughts
• Dilutes but does not eliminate
prejudicial Internet based material
• Primary target – on-line
mainstream media
• Citizen journalists – locally based –
would fall within Court jurisdiction
• One way of addressing the
“Googling Juror” problem