New Zealand’s minister of justice responds to the decision by the internet giant to take no action after its breach of name suppression in the Grace Millane case

Google’s attitude to fair trial rights in New Zealand should concern us all. It’s time to call out their recklessness.

To recap what happened, last year at the first appearance of the person accused of murdering British tourist Grace Millane, the judge ordered temporary suppression of the accused’s name. Google’s newsgathering algorithm picked up a British newspaper’s report of the court appearance, a report that breached the suppression order. Google’s system proactively alerted New Zealand subscribers to the report, and in so doing also breached the suppression order.

When I confronted New Zealand Google executives about what happened they indicated they took the issue seriously and would look at what they could do to fix the problem. Six months on, they now tell me they can’t – or won’t – do anything.

Permanent suppression orders are very difficult to get in New Zealand. But temporary, or interim, suppression orders are commonly used in the early stages of a case to manage the needs of a fair trial. They are used as a practical application of the principle of being presumed innocent until proven guilty.

Even at the time of arrest, or well before the trial takes place, there is a lot for prosecuting and defence counsel to do to prepare, including working out what facts or issues are in dispute. Sometimes the issue of identification of the perpetrator is in question. Keeping the identity of an accused secret until after the trial ensures witnesses don’t get confused between what they saw around the time of the offending and what they’ve seen in the news since.

I’ve taken Google to task over their publication of suppressed information. Frankly, their size, far from meaning they can’t fix an obvious risk to justice systems, means they are big enough to do better. I would be failing in my duty if, as a minister of justice in a small country, I threw in the towel and decided nothing could be done in the face of a giant international corporation thinking it could ride roughshod over one of the most important principles of criminal justice.

Google chooses to operate their business here, to earn revenue here, to publish news and information here. So they have obligations here. The same obligations other news publishers have. And for that matter, other multinational corporations.

I will not accept that Google can avoid their obligations. New Zealanders deserve better.

So I’ve asked for advice on our current suppression laws, the contribution of the Contempt of Court Bill that is currently before parliament, and what more is needed. I also want to know what avenues for legal action there might be.

This will be an issue that will affect other countries, so I want to explore how it is being dealt with overseas.

Meanwhile, one of the issues Google has raised is they don’t know what suppression orders are in force in New Zealand at any time. This doesn’t stop New Zealand based publishers from adhering to the law but I have asked the Ministry of Justice to review how it notifies media about suppression orders as part of its work to implement the new contempt laws.

One thing is clear. I’m not prepared to let Google off the hook, and all options are on the table.

In a ferocious opinion piece for the Spinoff, the minister of justice says he would be ‘failing in my duty’ if he were to allow the internet giant to ‘ride roughshod’ over New Zealand law.

The New Zealand minister of justice has promised that there will be consequences for Google after the US-based company informed him that it was planning to do nothing to change systems which late last year allowed a flagrant breach of a court-ordered name suppression in the case of the murdered British backpacker Grace Millane.

“Google’s attitude to fair trial rights in New Zealand should concern us all,” he writes in the Spinoff. “It’s time to call out their recklessness.”

Little contests the idea that the scale of Google’s operations and its reliance on automated algorithms should not be an excuse for inaction. “Frankly, their size, far from meaning they can’t fix an obvious risk to justice systems, means they are big enough to do better.”

He continues: “I would be failing in my duty if, as a minister of justice in a small country, I threw in the towel and decided nothing could be done in the face of a giant international corporation thinking it could ride roughshod over one of the most important principles of criminal justice.”

Last year the Spinoff revealed that Google had sent the name of the accused, in breach of a court order, directly to everyone subscribed to its “New Zealand trends” email newsletter. The name was obvious even without opening the email, appearing in the subject header.

In the days before Christmas, Little hosted two Google representatives at his parliamentary office, with another Google staffer joining via video link from their California base. At the time, Little called it a “constructive meeting”.

He told the Spinoff then: “The upshot was they’ve agreed to consider what action they can take … I’ve suggested any automated email concerning a court case and generated on the basis of the volume of queries could have a delay built into it until a manual check is made of any court orders relating to it.”

Google had agreed to engage with officials “to see what else could be done”, he said.

Almost eight months later, Google has informed Little that there are no plans to do anything to address the issue, he says.

The New Zealand government is considering a range of options in response, says Little, including legal recourse, on which it has sought advice.

He has also asked the Ministry of Justice to “review how it notifies media about suppression orders as part of its work to implement the new contempt laws”.

Little concludes his op-ed by insisting that he will not let the issue lie.

“One thing is clear. I’m not prepared to let Google off the hook, and all options are on the table.”

Jacinda Ardern this morning said that both she and Little had directly raised directly with Google their concerns over the name suppression breach.

“These are our domestic laws, and we do have an expectation they will be upheld,” said the prime minister.

“So the response has been disappointing. Now we need to consider what the next steps will be.”

Approached for comment, Google provided the Spinoff with the following statement: “Google respects New Zealand law and understands the sensitivity around this issue. When we receive valid court orders, including suppression orders, we review and respond appropriately.”

The name of the man charged with Grace Millane’s murder remains suppressed.