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.
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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.
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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 publicity@allenandunwin.com 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.
journlaw 
Ha! I love that whilst reading your text book I took a break to google sub judice and Jill Meagher, only ot find myself here! You’re just all over it Pearson!
P.S. Good job on the textbook, I find it quite easy to read, making media law just a little more tolerable.
Thanks so much for your comments Sara! Cheers, Mark
Does sub judice still exist when the accused admits guilt by taking investigators to a burial site?
Hi Lisa. Reporting such matters – even if released by the police – can be highly prejudicial. History is littered with examples of innocent people who were jailed as a result of fabricated police evidence. Without discussing particular cases, we must let justice take its course in all of them without speculating as to guilt or innocence – even if it appears that no jury could ever reach another verdict. All sorts of evidence is ruled inadmissible at trial.
“History is littered with examples of innocent people who were jailed as a result of fabricated police evidence”.
I don’t understand what social media has to do with this comment you left for Lisa in reply to her question. Honestly, how can fabrication of police evidence have anything to do with matters before the Court? How can that be seen as contempt? There was no fabrication of any evidence when Bailey took investigators to the crime scene and admitted to raping and killing and burying Jill Meagher. It was good old police work. Get a confession and lock the murderer up.
If you say that the reporting of the facts by the police to the public are highly prejudicial, then who is in contempt? The Police sharing the info with the media? Or the media conveying the info to the public. If the police do not want the info to be conveyed to the public, then why on earth share it with the media? In that case, I would say, the problem lies within the Police and the Court should perhaps hold the Police in contempt.
If a trial takes place, ANY person from the public is allowed to visit the court and sit in on the trial. It is a public affair.
If a person from the media is sitting in on the trial, why is that journalist not allowed to write about his/her day in court and the happenings?
If the Court are so concerned about coverage about matters before the Court, why not change the rules completely? Don’t make Court documents available to the public to read, don’t get the public involved at all. Keep it a secret. Perhaps the Police should then not rely on the media to spread the word should a crime be in progress or have happened. Perhaps CCTV of Bailey never should have been released to the public. In fact, it was totally unnecessary to have shown the CCTV footage of Bailey. If the footage was shown to the inner circles of the Law Enforcement first they would have realised that he is well known to prosecutors and the prison system. The publication of the CCTV footage during peak hour on national television was totally and utterly unnecessary! They DID not even need the help of the public. All they had to do was show the footage to a few police officers, parole board members, etc.
However, when it became clear who the suspect was, the Police then went into overdrive trying to silence the media on any further coverage. Why? Because it became clear that this man was in fact a REPEAT OFFENDER out on parole! The public became enraged by this news and demanded answers. But all of a sudden NO questions were to be asked. NONE. Be quiet, because the MATTER IS BEFORE THE COURT! Yes, before the Court. Hasn’t it been before the Court before and before that and before that? Yes, but no one is allowed to talk about it. Why? Because if the public do this parolee will not get a FAIR TRIAL or it can INFLUENCE THE JURY or the parolee’s HUMAN RIGHTS to a fair and impartial jury will be in jeopardy.
About your use of the word “history”. Before advanced DNA testing a numerous amount of innocent people have been convicted of crimes they have not committed.
The opposite also happened. A lot of cases became unsolved and the perpetrator are still walking free because they never got apprehended.
Across the world a lot of cold cases are now being successfully prosecuted because of DNA samples being preserved for the future.
Luckily because of MSM and DNA, a lot of cold cases are now being opened again and it is wonderful that families of victims can now for the first time in their lives get closer and acceptance and best of all, come face to face with their loved one’s murderer in a Court of Law!
I applaud the media for their efforts in bringing the truth to the people of any country, the people that work to earn a honest living. These citizens have a right to know who and what they are subjected to. Jill Meagher had the right to be safe. She was shown no mercy. None. Her dignity was stripped away from her when she was repeatedly raped by a repeat rapist then buried in a shallow grave next to a road!
I will also post my comment on my blog for others to see. I suspect my “essay” here might get deleted by the moderator.
Thanks very much for your views here, Anley. I agree with many of your comments. It is difficult to balance the public interest in the free flow of information against the public interest in an individual getting a fair trial. You raise a host of issues and examples worthy of debate. Thanks again for your input. Cheers, Mark