Publication and Interpretation - Part 1
What Burrows v Police Tells Us About Publication
This is part one of a two part series of articles dealing with issues arising from the case of Burrows v Police [2026] NZHC 17. The facts of the case are not extraordinary although they do have a couple of unique qualities. What does make the case interesting firstly is the rather convoluted way in which a High Court Judge approached and resolved a relatively straightforward issue – what amounts to publication in the Digital Paradigm. That will be the subject of this part of the series.
Part two arises from some remarks that the Judge made about the way in which some of the principles of statutory interpretation have evolved and the way in which the development of those principles has, in my opinion, applied a collectivist approach to the way in which statutes may be interpreted and have eroded some of the fundamental principles of interpretation when the individual is confronted by the punitive powers of the State. A deeper aspect of that problem is the fact that the Courts are complicit in this drift and have shifted from their role as the bulwark between the overweening powers of the State to a role where the interests of the individual are secondary to the interests of the State.
Burrows v Police – What the Case Was About
Wayne John Burrows appealed against his conviction for breaching a name suppression order, the refusal to discharge him without conviction, and the denial of permanent name suppression.
The case stems from Mr. Burrows’ private prosecution of a police officer for allegedly assaulting him during an arrest in 2017. Mr Burrows posted messages an information on his Facebook page before he instituted his prosecution. That information identified the police officer in question.
When the case was first called the officer was granted name suppression, but Mr. Burrows did not remove Facebook posts he had made prior to the suppression order, which named the officer and included allegations about the assault.
The police charged Mr. Burrows with breaching the suppression order, arguing that leaving the posts online constituted “publication” under the Criminal Procedure Act 2011 (CPA)
Mr. Burrows position was that the information had been posted before the suppression orders were made. In such a case the action of placing the information online occurred before the making of the order and therefore there was no breach.
The problem is that publication in a hard copy medium differs from publication online. Mr Burrows problem was that he ran up against the multiple publication rule.
The multiple publication rule refers to the legal principle that online material is considered to be “published” each time it is accessed or viewed by someone, even if it was originally posted before a legal restriction, such as a suppression order, was imposed.
This means that leaving content online after a suppression order is issued can be considered a new act of publication, as the material remains accessible to the public.
