By MARK PEARSON Follow @Journlaw
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).
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