Courting trouble naming sex crime victims on social media: ignorance no excuse

By MARK PEARSON

News that nine Facebook and Twitter users in the UK have been ordered to pay compensation to a rape victim after identifying her on social media sounds a warning that we are all now publishers and subject to the same laws as mainstream media. Here is an edited 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 court reporting restrictions for lay users of social media.

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Courting secrecy

Despite the existence of the ‘open justice’ principle, online writers face restrictions on their reporting of crimes and other matters before the court. Your behaviour, postings and comments can lead to substantial fines or even jail terms if you breach the laws of contempt of court and the many and varied bans on reporting certain court matters and identifying certain people in the courtroom. Reporters who cover court every day know these restrictions well and are trained to deal with them – although sometimes they slip up as happened recently in a Tasmanian case prompting a push for law reform. The challenge for bloggers and social media writers is that you might be unaware of the fact that certain names and other identifying matters cannot be published in particular kinds of cases. In fact, some cases are closed to the public and cannot be reported at all.

The rules vary markedly between countries, but the most common restrictions are on identifying victims of sex crimes (and sometimes the sex accused), juvenile offenders and witnesses, jurors, and parties to family law disputes. Sometimes the whole court is closed for these and other proceedings such as preliminary hearings, military and national security trials and mental illness hearings.

The temptation for the gossip or sports blogger might be to mention some of these matters in postings about celebrities, perhaps via family or friends, without being aware of the court restrictions on identification. Heavy fines and even jail terms apply in some places if you break these prohibitions. At the very least you need to check what bans apply in both your own jurisdiction and the place of the court proceedings before firing off those words or images.

Gags, but not the funny kind

Sometimes a judge will use their power to issue orders prohibiting publication of some aspect of a court case and occasionally even the whole case. These are known as injunctions, suppression orders, gag orders and stop writs. Last month a Victorian magistrate issued such an order against publication of information about the man accused of murdering Melbourne ABC worker Jill Meagher – although Michael Bradley from Marque Lawyers highlighted some problems with that one.

When the orders ban you from revealing even the fact that the order has been issued, they are known as ‘super injunctions’. These prompted a social media nightmare for the English courts when they were issued in relation to privacy matters in 2010 and 2011. It came to a head in May, 2011, when footballer Ryan Giggs was named in the House of Commons as the person at the centre of an anonymity injunction after 75,000 Twitter users had already tweeted his name. A Times journalist was threatened with a contempt of court charge for tweeting the footballer’s name to his followers in breach of the order. It was believed to be the first time the Attorney-General had been formally asked to consider contempt charges against a social media user.

Gags like super injunctions have also been used in the US. The New York Times reported in 2008 that the owners of political website Room 8 received a grand jury subpoena to disclose the authors of some of their anonymous bloggers. They were threatened with prosecution if they revealed they had even received the subpoena. In another example, Florida-based legal blogger David O. Markus explained the frustrations of dealing with a gag order on his Southern District of Florida Blog after a judge in a terrorism trial issued one and then partially lifted it in 2008. Markus was then allowed to blog about some aspects of an ongoing immigration case without going into the details of the alleged bombing plot which shared many of the same facts.

Blogs covering sensitive national security information or sexual taboos are much more likely to be gagged, sometimes permanently. In 2009 Seattle University postgraduate law student Danielle M. Cross explained how Californian courts were able to uphold permanent injunctions against websites set up by a paedophile to track the movements of young girls at public events.

Take down notices

Sometimes the injunction is in the form of a notice to ‘take down’ certain material from a site or to shut down the whole site. This is sometimes issued to the ISP or search engine host. In 2011 Google complied with a ‘preventative closure’ order from an Italian court to remove an English language blog titled ‘Perugia Shock’ criticising aspects of the prosecution of an alleged murder of a British exchange student by her US roommate. (The accused, Amanda Knox, was later acquitted.)  The blog reappeared elsewhere, the Washington Post reported. In Australia, media organisations were ordered to remove from their searchable archives material related to the upcoming trial of a prominent criminal figure. Former News Limited chief executive John Hartigan criticised such take down notices for their expense and unrealistic application in an address to our Courts and the Media in the Digital Era symposium at Bond University last year.

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]

© Mark Pearson 2012

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.

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