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EXCLUSIVE:  Seeking justice for whom Google tolls?

EXCLUSIVE: Seeking justice
for whom Google tolls?

How much is the internet altering the relationship between society and justice? The Chief Justices of Australia are grappling with this major dilemma as they strive to formulate a national basis for the reporting, recording and archiving of court decisions and statements.

Seeking justice for whom Google tolls?

What Google is potentially doing to court sentences is currently occupying the minds of the Chief Justices of Australia.

Should judgements – involving everything from murder to parking tickets – be made available on the internet, and therefore be readily accessible via Google and other search engines? If so, for how long? While the facts of judgements need to remain on some record somewhere for some time, how publicly available should that record be, and for how long should it be publicly available?

CLA believes Australia’s top judges should, for once, seek external advice: they could well utilise the counsel of bodies like the Australian Privacy Foundation and Civil Liberties Australia. The APF and CLA are on the cutting edge of the public privacy considerations that lie behind these questions, whereas the courts deal with the odd case, exceptionally, and rarely.

The CJs are aware of the problem from their perspective…but we’re not confident they have looked at the matter of sentencing, the public record and justice from all angles (see later).

The CJs are grappling with a similar problem that mass availability of information, and virtually limitless storage, is starting to throw up across many aspects of life. It’s the Google Effect.

People often are first aware of it in reverse. Remember that old family photo album, where hard-copy prints used to be kept in dusty volumes extracted only to embarrass people at 21st birthday parties, or to record the early life of a newly-deceased relative. Nowadays though, family photos are scattered on a dozen computers, some probably themselves ‘dead’, using different operating systems and software programs in diverse suburbs or across countries or continents.

The notion of what is now a photo collection has changed. So has the dilemma of what information courts should keep on convicted offenders, how readily that information should be able to be accessed, and how long it should be kept.

This last issue is a point of no small concern. Many offences will eventually reach their ‘use by’ dates. That is, they will fall under Spent Offences Acts, and be ‘wiped clean’ after five or 10 years. The offender won’t have to declare them, and no-one should be able to look them up easily and know about the sometimes youthful indiscretions of a person who is now an esteemed businessman, or who wants to be a police officer, for example.

Currently, though, there’s no mechanism in place to make Google and its searching mates blind to expired offences. Some form of court or bureaucratic intervention appears to be needed.

As well as the formality of the sentence, there are the judge’s or magistrate’s sentencing remarks. These are often highly critical, and/or personally illuminating. How long should they be kept? Should a degree of anonymity be given after a short period, say 30 days or three months? For the moment, there are different regimes across the States and Territories.

We wish the CJs well in their deliberations…BUT, we believe, they should open the issue up to the public, or at least to the main community organisations operating in the privacy space.

…and taking the question a step further

One aspect that even the CJs do not appear to be considering is the potential inequity of having an unusual name and/or career and/or place of work or living. We illustrate the problem this way:

Suppose two people are convicted on the same day of having basically the same number and type of pornographic images on their computer. They receive the same sentence of one year, suspended, and it is reported in the same way by the courts on the internet.

One man’s name is John Smith. He is a labourer, works for the State Government and lives in the vast sprawl of Campbelltown in outer suburban Sydney

The other man is Professor Pedrovicius Wjodjienczski, who heads a research laboratory linked to the University of Western Australia, and lives in Peppermint Grove, in a tiny enclave in suburban Perth.

If both sentences are reported the same way, the reference to John Smith will appear on page 14,767 of a general Google search using his name. For all intents and practical purposes, it is buried in the archives, never to surface.

However, the reference to the generously-monikered Professor will occur on p1 or p2 of a general Google search using his name, even if he has many publications to his credit over many years. The fact that the suspended sentence appears may ruin his career at the research facility; he could quickly become an object of ridicule in his small, select residential community. His future job prospects are probably shot. His family and his children are likely to suffer.

CLA is asking the CJs to consider that the electronic impact of sentencing in the Google era also needs their urgent consideration. In this area – making judicial decisions as to the effect of a sentence, and its justice – neither APF nor CLA nor anyone else can help the judiciary. This is one they need to work out on their own.

CLA is urgently awaiting their determination: we know of one clear case of a sentenced person that meets the broad description above, and another one where the Australian Federal Police effectively ‘convicted’ a person, simply by announcing an allegation, what the man’s occupation was, and where he lived. Found innocent of any charge, that second man still cannot get a job, now some three years later.


– Bill Rowlings, CEO

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