Police Facebook wall raises fair trial questions

By MARK PEARSON

Sunday Mail reporter Anthony Gough called me last week seeking my views on a Queensland Police Service Facebook site featuring public comments on crimes and arrests.

Of course, before making a media comment on the matter I took a closer look at the site.

I quickly formed the view that it seemed an excellent community policing tool and a great way for police to get information about unsolved crimes but that many comments crossed the line once suspects had been arrested.

One comment called for a firing squad for a suspect charged over an assault on a police officer. A common view was that despite good police work in making an arrest, justice would not be done in the courts and the suspects would get off with a mere ‘slap on the wrist’.

My interview featured in an article in the Sunday Mail yesterday (June 19) headed ‘Police social media site a disgracebook’.

The article became the most viewed item on the newspaper’s site yesterday and remains in the top ten most popular items this morning (June 20).

It has already generated almost 400 ‘likes’ and comments on the police Facebook wall where it was republished with the warning: “A timely reminder why we ask you to familiarise yourself with the terms of use of the QPS page, and to be circumspect in your comments.”

Gough quoted me as saying some of the public comments about arrests could jeopardise convictions and perhaps even lead to acquittals.

“Police need to be concerned about this because prejudicial comments about arrests can actually finish up jeopardising the trial,” I told him.

“It may be counterproductive for a conviction or it may cause a delay.

“Either way it’s a huge cost to the community and I’m surprised the minister for police and the attorney-general are allowing this to continue.”

I questioned whether it was appropriate for the police service to be hosting a site with such comments and suggested it could prompt actions for contempt of court or defamation suits.

Criminal defence lawyer Bill Potts shared my concerns.

QPS media director Kym Charlton was quoted as saying the police were aware of the legal issues but felt the benefits outweighed the risks and the site was monitored and the users educated on appropriate use.

It was only after I revisited the QPS Facebook site after the interview that I found even more concerning material.

A 19-year-old man had been charged with armed assault after allegedly hitting a five-year-old boy with a golf club. The police report outlined the basic facts, then the public let fly with scores of comments:

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag.”

“Any one who can attack a young child like that needs to be put in the prison system and not protected lets see him be such a big man when other prisnors find out he injured a 5 year old boy, i got to say i do not think they will be treating him withh open arms….justice i think…”

“HITTING A 5 yo WITH A GOLF CLUB? You totally disgusting, lowlife scumbag. HOW DARE YOU! It’s people like you that make me sick to the stomach.”

A relative of the victim entered the fray: “No Jason and Julia – He is just pure scum and the facts are all there. Agree with Steph. It was not on the backswing and our nephew was not in the way. Totally unprovoked attack. I hope this horrible man gets everything he deserves.”

A Queensland police moderator called for restraint: “We understand the emotion that incidents like this evoke. Please keep it civil. Offensive language posts deleted.”

The following day the boy’s father entered the discussion: “Just to clear things up for everyone, it was my boy who was hit & this was no accident. The guy was standing near the door of the shop at the range and as we walked in he held the club up as to hit me but he side stepped me and took a full “baseball style” swing which hit my son in the neck. [deleted] you will be pleased to know i used the clause in the law you described. My son is recovering & we can only hope justice is done to keep this freak from harming anyone else. For all the people who are commenting on the two sides to every story i agree, i don’t know what his side of the story is, all i can say is we had never seen this man before, we did not speak to him, it was a totally random, violent & cowardly attack. It is pure luck that my sons injuries were not more serious.”

In the interim the accused had appeared in court on the serious charges and had been refused bail.

From the moment of his arrest, the matter had become part of the justice process, when public comment has traditionally been restricted to fair and accurate reports of what occurs in the courtroom – along with the basic undisputed facts of the matter.

The traditional media still have to work within these rules or face charges of sub judice contempt of court for posing a substantial risk to the fair trial of the accused. It is a charge that has seen Australian journalists fined and jailed.

There is particular sensitivity about comments going to the guilt or innocence of the accused, and many of the police media site comments do exactly that.

Another important aspect of this law is that the comments of witnesses should not be published during the sub judice period so it does not affect their testimony when given as evidence in court.

Witnesses are not expected to know this themselves but here the Queensland police site provides the platform for them to vent their views and give their versions of events that should be reserved for the appropriate time in the courtroom.

In this matter the father was a key witness and mainstream media would have held back on publishing his comments unless as a fair and accurate report of his testimony in court.

Another factor is that child victims and witnesses cannot be identified. By hosting the publication of the father’s comment under his name, the police Facebook page is indirectly identifying the child.

The QPS Facebook site has an audience of more than 200,000, higher than most daily newspapers. Other law enforcement agencies with a social media presence.  Examples are the Northern Territory Police Force, SA Police News, Victoria Police Forcebook, and NSW Police Force.

They are a wonderful emergency communication tool and the Queensland Police site was used to great effect during last summer’s floods.

They are also an excellent vehicle for police to get information on unsolved crimes. Postings before a suspect has been arrested are not subject to contempt laws, although there is always the ongoing risk of defamation.

Apparently the technology does not allow for certain items to be comment-free, so the personnel monitoring the site need to delete offensive comments already posted.

I suggest they restrict items to the emergency, community information and intelligence seeking functions, deleting the announcements of arrests -unless a mechanism can be found for running them without comments.

The alternative would be a major overhaul of the justice publicity rules to accommodate the social media era, which would give us a system closer to that in the US where there is much more freedom to comment on cases in progress.

But such a change would need to come via legislative changes across Australia’s nine state, and territory and federal jurisdictions, not through via the communication offices of police forces.

——–

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.

© Mark Pearson 2011

13 Comments

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13 responses to “Police Facebook wall raises fair trial questions

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  5. knighta1949

    I am glad to see that correspondent “WP” is defending Police PR on your site as well. They use a Hotmail address so its not possible to say exactly who is commenting. But who-ever they are, they seem to have a close, working knowledge of police activities.

  6. Pingback: Queensland police unleash a social media lynch mob « Online Journalism

  7. I thought you might like to see the full response we provided to the Sunday Mail when they approached us about the story in which you are quoted:

    We are very conscious of the issues surrounding these matters, and have taken a number of steps to try to address them. A significant amount of policy and legal work is presently underway within the QPS in relation to social media use.

    The QPS Facebook page was created in light of the government’s Declaration of Open Government and agenda of “making government more consultative, participatory and transparent.” http://www.finance.gov.au/e-government/strategy-and-governance/gov2/declaration-of-open-government.html

    In part, that Declaration says: “Collaboration with citizens is to be enabled and encouraged. Agencies are to reduce barriers to online engagement, undertake social networking, crowd sourcing and online collaboration projects.”

    Social media is moving faster than the law, and with the rapid growth of the QPS social media presence, we are in some ways ahead of the pack in encountering issues and learning to deal with them.

    We are unaware of any cases in the world where legal action has been taken against agencies because of comments members of the public have made on their Facebook page, however we have taken a number of steps to try to manage the content where it fails to meet community standards.

    Before people can ‘like’ the page, users are directed to the info page, which has the following disclaimer and terms of use:

    Opinions posted by users of this page do not reflect those of the Queensland Police Service or the Queensland Government.

    Queensland Police Media administer this page to provide important public safety and public interest information in a timely and efficient manner. We feel that an open dialogue between ourselves and members of the general public is beneficial to this. However, when commenting on this page, we ask that you follow the below guidelines:

    Do not:

    • Post anything that could be considered prejudicial, off-topic, inflammatory, repetitive, vexatious, offensive or otherwise inappropriate.

    • Swear. We want everyone to be comfortable visiting here to get the important information we try to provide.

    • Harass or make personal attacks against other users. Please be respectful of others and their opinions.

    • Speculate or comment on sentencing or legislation. QPS does not write legislation, it only enforces it. And as many of the matters we post about on this page will go before the courts, it is inappropriate to discuss or debate the legislation or potential sentencing related to them.

    • Reveal any personal or sensitive information about others on this page. Divulging any information regarding crimes or their victims can be distressing for them and their family members. Please remember these sensitivities before you post.

    • Repost other people’s appeals, requests or offers, or anything else that could be considered spam.

    • Link to other Facebook pages, any non-government or off-topic page.

    • Report any offensive material on Facebook to this page, or post a link to it. Complaints about offensive material should be made directly to Facebook.

    Any comment deemed to fit under these definitions will be subject to deletion. Users found to be repeatedly engaging in the above activities will be banned from this page.

    By following these simple guidelines, you will help make our jobs easier and allow us to focus on keeping Queensland informed.

    Many thanks,

    – The team at QPS Media

    We make our best efforts to remove offensive/prejudicial comments, with 24-hour moderation. We also work hard to educate our users about appropriate use of the page.
    Facebook is a third party site, and the reality is that people might make prejudicial comments anywhere on Facebook or anywhere else on the web.

    We are very conscious of the risks associated with engaging through social media, however recent events have shown us that the risks of not being in the social media space are far greater. The benefits of direct two-way communication with the people of Queensland are significant, not only to the QPS, but to the community.

  8. Craig

    Mark, the world has changed and the law needs to change with it.

    Representing your concerns as a matter of the size of the QPS audience is not a sustainable position just because it increases the likelihood that an individual’s views will be seen. A Facebook page can be seen by non-fans so you cannot accurately judge how many people may see a page, or who they might be.

    A page only viewed by one person might raise the same concern if that one person is the ‘wrong’ person, a juror.

    By your lights we need to shut down every medium that allows public comment in order to preserve our current legal system unchanged.

    I would argue instead that our legal system must conform to society’s value and adapt to new technology.

    BTW by having your own blog you are acknowledging the change to society. Just moderating comments does not liberate you. Are you denying Australians without an intimate legal understanding of our judicial system the right to have blogs, Facebook pages or twitter accounts?

    If we shut one we should shut all, rather than limiting the right to comment to an elite group who ‘know better’ than the rest of Australia.

  9. wp

    Facebook can’t be set up like your blog, comments on Facebook can only be post moderated. It seems like they are taking reasonable steps to delete problem comments in a timely manner.

    I’m not saying there are no issues to think about, but I do think you are applying a baby-bathwater approach. Like I said, we create massive issues by letting people drive cars, but we realise there are benefits as well and find a reasonable line in-between.

  10. wp

    Don’t you run the risk of me publishing prejudicial material here? If that is the case should you think about closing down your blog?

  11. wp

    Facebook host the site, the police are not publishing any of the comments you are complaining about. Facebook host a huge amount of sites, do you think that shutting down the police Facebook site will stop the public publishing any prejudicial material? If not are you arguing that all of Facebook should be shut down?

    Can the government guarantee that every person issued with a drivers licence will obey the speed limit? If not then isn’t the only responsible thing for them to do is ban everyone from driving?

    I looked and I can’t find any of the prejudicial material you are talking about. I would not even be aware of this material if I had not read them on your blog. How come you are allowed to post the prejudicial material on your blog?

    • Thanks again for your questions. I’m not saying the site should be taken down, just expressing concern about comments about pending cases. My blog sadly has nowhere near the QPS’s 200,000 Facebook audience so I would be unlikely to jeopardise any trial, but I was careful not to include identifying details and would likely have a defence because they were examples in a considered opinion piece. If they have taken the postings down now, you might ask them why. Best wishes!

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