By MARK PEARSON Follow @Journlaw
The arrest and court appearance of a man accused of the rape and murder of Melbourne ABC staffer Jill Meagher has sparked a spate of commentary on social media – much of it potentially prejudicial to the suspect’s upcoming trial. Here is an excerpt from my new book - Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012) – explaining the basic principles of sub judice contempt for lay users of social media. See also Julie Posetti’s innovative and useful Storify on this.
Victoria Police are also struggling to cope with prejudicial comments about the accused on their Facebook site. See my earlier blog on similar problems with the Queensland Police Facebook page where they have faced similar challenges trying to moderate prejudicial comments.
Sub judice – time to brush up on your Latin
The most frustrating area of contempt law for the traditional media has been sub judice contempt – publishing prejudicial material that might reduce the chance of a fair trial. First Amendment rights in the US have given the media immunity in recent times, but ‘trial by media’ can prompt a mistrial and lawyers can be disciplined if they make prejudicial statements during a trial. ‘Sub judice’ comes from the Latin meaning ‘under justice’ and has been prosecuted most often in the UK and Commonwealth countries, although some European countries like Denmark have laws against publications that might seriously damage a trial.
In 2011, the judge presiding over the trial of a conservative politician for a false expenses claim in Britain referred to the Attorney-General a potentially prejudicial tweet about the case by a rival politician. High-profile Labour peer Lord Sugar tweeted to his 300,000 followers on the second day of the trial: “Lord Taylor, Tory Peer in court on expenses fiddle. Wonder if he will get off in comparison to Labour MPs who were sent to jail?” The Telegraph quoted Justice Saunders saying: “I was concerned that if seen by a juror it might influence their approach to the case… I reported the matter to the Attorney-General not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites … posed a risk of prejudicing the fairness of a trial, and if so whether there were steps which could be taken to minimise that risk.”
International media law firm Taylor Wessing revealed in 2011 that they had defend a website against contempt allegations over prejudicial user-generated posts on a message board just a few weeks before a criminal fraud trial. They had to take down the messages and the jury had to be warned not to do Internet research. They pointed out that bloggers and social media users were liable for their publications even when they did not intend to damage a trial. From the moment someone has been arrested in a criminal case, reports about the matter are seriously limited in many countries. Authorities can prosecute for this kind of contempt if there is a ‘substantial risk’ that justice will be prejudiced in the case.
While the mainstream media are the most common targets of such actions, the size of the audience for many blogs and social media commentators will increasingly make them vulnerable. The Victorian Government Solicitor’s Office advises websites to take down materials related to an upcoming case in the lead-up to a trial. The most sensitive material is anything implying the guilt or innocence of the accused, confessions, photo identification of the accused, and republishing reports of earlier hearings. A public interest defence might be available for publication of material on a matter of overwhelming public importance, but you should never rely upon this defence without legal advice.
Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online is now available in print and ebook formats worldwide.
[Media: For review copies please contact firstname.lastname@example.org or call +61 2 8425 0146]
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.