Judge Harvey Goes Web 2.0

Auckland District Court Judge David Harvey, author of internet.law.nz, is one of New Zealand’s most net savvy jurists.  A good thing then that he was assigned to hear the case Department of Internal Affairs v. TV Works Limited DC Auckland, CR 0800-4505568-620, 23 June 2010.

 It is one of the first decisions Worldwide to consider whether someone who operates a [same-casino-name].com online gambling site, breaches a prohibition on advertising that site if it advertises a non-gambling site at [same-casino-name].net.  Apparently, this is a relatively common strategy employed by online gambling companies, which will offer gambling on the .com site and the same sorts of games on the.net site, but without any cash component (so they do not fall within usual definitions of gambling).  They then advertise the .net site.  In this case Judge Harvey decided that TV3’s advertising of pokerstars.net did not amount to illegal advertising of the same overseas operator’s pokerstars.com gambling site under section 16 of the Gambling Act 2003. 

But the more interesting aspect of the judgement for me is not what is said but how His Honour says it.  In a move which I understand to be a first in New Zealand and one of only a few instances Worldwide, Judge Harvey has embedded videos of the advertisements themselves in the electronic version of his judgement.  See below at paragraphs [35], [36], [39], [41] and [44] of the judgement (not embedded here because of technical restrictions).

Not only that, but the Judge has himself uploaded the videos to YouTube.  An example of one of them is below:

This is an excellent development in cases like pokerstars where electronic evidence is central to the issue at hand.  For the first time, those not in the courtroom can see and hear the crucial evidence on which the case is decided. 

It does create some new and interesting conundrums though. 

Foremost to my mind as a lawyer is the need to ensure that the sanctity of the decision itself is preserved.  This is important so that lawyers can advise their clients and so that people can order their affairs based on the law as published, safe in the knowledge that the judgement is the "official version”.  It is also important because of the potential precedent effect of any judgement.

As the pokerstars.net decision shows, when a video, a piece of film or music or any other electronic evidence is embedded, we inevitably end up with two versions of the judgement - an electronic one with the embedded evidence playable from within it and a hardcopy static one, which, in the pokerstars.net example, would just have the first frame of the video printed in hardcopy.  It is for this reason that Judge Harvey has added the URL link to the uploaded video as well as embedding it, so that someone who does not have the electronic version and who reads the hardcopy can still view the video.  Conversely, a link to the video on YouTube alone would short-change someone who has the electronic version of the judgement but who does not have internet access.  Both are required for the two versions of the judgement to be consistent.

Judge Harvey himself disusses all this in a brief paper issued at the same time as his Judgement (published here with kind permission of His Honour)

A couple of questions though:

•  What if the evidence in question is, of itself, infringing?  For example, imagine a case concerning copyright infringement of a song, like the Kookaburra case in Australia for example.  It would have been very useful to have had Men at Work's Downunder embedded side by side with the old folk song Kookaburra sits under old gum tree in that judgement so that we could listen to them ourselves.  But, since the Judge found that Downunder infringed copyright in Kookaburra, would that not be a further publication of the infringing material?  Courts in New Zealand are protected from copyright infringement in such circumstances under the fair dealing exception in section 59 of our Copyright Act  but I don't imagine a copyright owner is going to thank a Judge for providing a new source from which people can download material without permission.  (The side by side embedding of the songs that I mentioned in an earlier post was only of small snippets and would be protected by the current affairs/news reporting fair dealing exception anyway).  Similar issues arise for objectionable material, defamation, breach of confidentiality or privacy and in myriad other areas.  What then are the rules by which a Judge can decide whether or not to publish in this manner?
  

• Are we comfortable putting our jurisprudence in the cloud?  All the issues that cloud computing is current grappling with – security, reliability, privacy, longevity, jurisdiction, sovereignty, contractual rights, take down rights and the like – come into sharp focus when one considers having all or part of New Zealand judicial decisions hosted by an overseas commercial provider like YouTube.  Conversely, the cost to the New Zealand taxpayer, via the Ministry of Justice, in replicating and administering the Web 2.0 functionality provided by organisations such as YouTube, might well be prohibitive.

As I said, I think use of Web 2.0 functionality in judgements is an excellent development.  Its use is inevitably going to increase as more and more evidence is presented in electronic form and as people who have grown up with such tools become lawyers and judges.

We're going to need to think carefully about the technical and legal issues before we go too much further though.

UPDATED 8 AUGUST 2010:  And, in further evidence of Judge Harvey's tech savvyness, I noted he had his newly acquired iPad with him when presenting his (compelling) oral submission to the Copyright (Infringing File Sharing) Amendment Bill Select Committee last week.