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Overreaching gag orders can cause a “Streisand Effect” – by Tristam Price


Non-publication and non-identification orders issued by the ERA and Employment Court are often applied to determinations and judgements where the harm caused by naming the parties outweighs the public interest in knowing who the parties are.


For example, ending an employment relationship in MBIE’s mediation service, concluding with a Record of Settlement (RoS) are confidential to the parties, and the idea is that neither party wants it known that they were involved in an employment dispute. Sometimes a grievant will raise a personal grievance in the ERA, and the ERA Member will refer the parties to mediation. If the dispute is resolved in mediation, the ERA Member will publicise that two anonymised parties had settled the dispute on their own terms, and that’s the end of the matter. The publicised determination will include an order preventing the publication of the names of the parties to protect them from reputational harm, similar to how it would be if the dispute was resolved in mediation without any ERA involvement.


The ERA occasionally anonymises other parties, such as:

  • witnesses giving evidence in ERA investigation meetings

  • employees whose mental health might suffer if they are publicly named

  • other vulnerable persons

We have also seen anonymisation of persons in circumstances where serious wrongdoing is suspected, and the non-identification order appears to be the instrument of choice to cover up that wrongdoing.


Without commenting on the legitimacy or otherwise of penalties that have been imposed by the ERA, here’s a couple of examples:


Brown v Tauranga City Council

This was a high end enforcement of a RoS against a whistleblower – the Council had bankrupted Geoffrey Brown on an indemnity costs clause (!) in the RoS.


The Employment Court judgements in ITE v ALA referred to by the Court of Appeal showed a lot more detail of the nature of the dispute than the relatively brief Court of Appeal decision in the above link, and so did the ERA determinations in the P v Q cases again referred to by the Court of Appeal. But they did not identify the parties because there was a “non-identification” order. We found all that very odd, but if the government can report something, so can media.


Those judgements and determinations show how the lawyers for the employer and employee got them to sign a Record of Settlement by which the departing employee had to give the council managers the evidence of the serious wrongdoing that he had, and agree to a “non-disclosure” clause so that he could not talk about that corruption. They also show that after being adjudged bankrupt (due to a sneaky indemnity clause being enforced to the tune of around $160,000), the former employee refused to take down YouTube videos explaining what the council had done, and was imprisoned by the Employment Court for that, again under the name “ITE”.


The Court process and in particular its unsuccessful attempt to suppress the identities of the parties, brought to light the imprisonment of a whistleblower attempting to report corruption at the council. That created a Streisand Effect where the parties have long been identifiable through Google searches and also through undocumented chatter in the district concerned.


Oranga Tamariki v Newsroom, Win, SLU and Kennedy

In our 19 May 2021 article “Take, if you want a slice”, we describe an unusually high level of litigious activity including attacks on media and whistleblowers. SLU is a former employee of the applicant Oranga Tamariki who claimed that he breached a Record of Settlement. SLU was ordered to pay a $6,000 penalty, $4,800 of which was to be paid to unspecified current employees. Because SLU was anonymised we were unable to contact him (under legal privilege) to find out whether or not the Protected Disclosures Act 2000 was respected, so we had to go with what we could find. It’s a similar situation with Mr Win – we couldn’t find him but note that penalties are yet to be awarded against him. Meanwhile, the Chief Executive of Oranga Tamariki has learned that Melanie Reid, Chief Investigative Editor of Newsroom, is not a woman to be messed with. Since Ms Reid was slugged with the $13,000 cost of a “just in case” injunction, Newsroom has had plenty to report about Oranga Tamariki’s shortcomings.


Where we see the Streisand Effect hurting Oranga Tamariki is in its enthusiastic attempts to prevent former senior social worker Susan Kennedy from writing a book about how she was treated there; retaliation against other whistleblowers Mr Win and SLU, and an attempt to bully Newsroom into silence that had the opposite effect.

Millane Homicide and name suppression

While the name of the now convicted murderer of British Backpacker Grace Millane was suppressed, and then Justice Minister Andrew Little raged at Google and British media for not applying New Zealand’s suppression rules, the Standard balked and published this:

... notwithstanding the geo-blocked link. With that said, we are only showing what happened and do not wish to weigh in on the merits of name suppression in criminal and family cases.

Academia

We have asked recent law graduates and a law academic if the Streisand Effect is taught in courses, especially in employment law, and were surprised to learn that it’s not.


Not that we’re losing any sleep over it, but we think New Zealand law schools should be teaching it.


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