By MARK PEARSON Follow @Journlaw
The NSW Law Reform Commission is conducting a review into open justice.
Congratulations to the NSW Government for commissioning such a review.
Here are some insights I will be presenting to a roundtable convened by the commission. Some are drawn from a joint preliminary submission I prepared with colleagues Jane Johnston, Patrick Keyzer and Anne Wallace. Others are my own views after considering the Commission’s Consultation Paper 22 on the topic.
1. Macro versus micro issues
My first major concern is to do with the nature of most such inquiries – their primary focus is on the reform of the law related to the topic in the particular jurisdiction – in this case NSW. While this inquiry’s terms of reference do direct it to consider the findings of the (Commonwealth) Royal Commission into Institutional Responses to Child Sexual Abuse regarding the public interest in exposing child sexual abuse offending and ‘comparable legal and practical arrangements elsewhere in Australia and overseas’, the latter consideration is mainly used as a reference point to help guide the NSW reforms. There is too little encouraging steps towards uniformity of the laws across jurisdictions, which should be the number one priority in an era where media and social media defy jurisdictional borders. To this end:
a. A key recommendation should be to collaborate with other jurisdictions (perhaps using joint law reform commission inquiries on such matters) to achieve a semblance of uniformity so that journalists and others do not need to know the myriad of publishing restrictions that might apply to a single investigation or post across multiple states and territories (plus the Commonwealth).
b. When reviewing the micro changes to particular rules or laws affecting media research or publication, such inquiries should provide a table of inter-jurisdictional approaches to the topic and then propose the most common/popular approach as the default, only supplanted by compelling arguments to the contrary. This would represent a significant step to uniformity on each facet of the reforms.
c. Reform commissions should seek out national solutions to cross-jurisdictional publishing problems. For example, on the topic of a register of suppression orders, a recommendation should be that the Attorney-General be advised to bring forward to the Meeting of Attorneys-General (MAG) a proposal for a new national register of suppression orders, with all state, territory and Commonwealth jurisdictions feeding into the system. The Commission should be applauded for suggesting a national regime for access to court documents as part of its consultation paper (at p. 155).
2. Micro issues
I bring to the roundtable some views on the specific topic at hand – ‘Enforcing restrictions on publication or disclosure and other digital technology issues’.
a. The Commission is considering two options to help increase awareness of the existence of suppression and non-publication orders – to either to improve the notification system by establishing a new public body to notify likely parties that a suppression order exists, or to create a searchable register of NSW suppression orders available to the public and/or the media. To my mind, these options should not be mutually exclusive. Both could be proposed, and the proposal for a register should suggest a collaboration for a new national system. Any notification body should also be briefed to monitor social media actively for breaches and notifications/warnings, because the mainstream media is strongly disadvantaged by the current situation that allows for rampant social media discussion in breach of suppression orders while the media, who are aware of such orders, have their hands tied and continue to lose audience to social media in the process.
b. The issue of the extraterritorial application of offences for the breach of NSW publishing restrictions also has strong social media vs mainstream media dimensions. A breach by traditional media becomes much more obvious and enforceable, even though its audience might only number in the thousands while social media users might be committing the same breach in their millions. This happened in the Pell case in Victoria. So too did the international breach of orders by major media entities beyond the reach of prosecutors. It can become futile to issue and attempt to enforce restrictions when there is no international reach. Nevertheless, a social media active approach by the proposed new public body could make some inroads.
c. International online intermediaries need to be held account for not acting within a reasonable time to remove flagrant breaches of publishing restrictions once they have been brought to their attention. Given the size of such operations, a 24 hour notice period should be negotiable starting point as a time limit after notification. Again, a new public body established in this space could be responsible for monitoring and initiating such demands on a routine basis.
d. The myriad of offences, penalties, elements and exceptions certainly require standardisation to a recklessness standard. Strict liability is too high a hurdle given the widespread level of court and justice illiteracy among the broader social media population. Financially stricken mainstream media organisation have also reduced training in this space. A new public body with judicial powers could institute a warning system once a breach has been identified, and breaches could then be dealt with as disobedience contempt or at an “intent” level if the breach recurs after the warning.
e. This approach would feed into the question of support standardising penalties across the different offences. Defiance of an order could be dealt with harshly under the disobedience contempt powers of the new public body. However, in a democratic society jail penalties should only be used in the most extreme cases of disobedience, and certainly not at first instance. Financial penalties – perhaps accompanied by other innovative orders related to suspension of social media use – should be preferred. The scale of financial penalties can increase for the most serious cases once imprisonment is removed from the equation.
f. Two years is too long a period to bring a prosecution for a publishing offence. A one year limitation period applies effectively to defamation, so there is no reason why it should not also apply to such publishing offences.
g. The suggestion to establish a Court Information Commissioner should be applauded, with the functions as described in the report.
h. Proposals for helping avoid juror to exposure to prejudicial information are reasonable, particularly having them swear or affirm they will not make inquiries, repeating jury directions and allowing judge-alone trials when pre-trial publicity has stood to prejudice proceedings. However, missing here is the mention of juror training in the area. A simple juror course on the issue can be administered and tested online and would add to their understanding of the issue. Again, this is a topic that should be reformed nationally.
i. The extent to which the use of social media in court by journalists should be examined as part of national reform. Journalists attend court in different jurisdictions and there needs to be uniformity. A 15 minute delay before posting is a reasonable approach.
j. As virtual courts become more necessary and common, they should be as open to the public and media as other proceedings given the importance of open justice as a principle. New rules might need development and reinforcement, such as a ban on the screen capturing of images or broadcasting footage from proceedings, as with recent BBC contempt fine – https://www.lawgazette.co.uk/law/bbc-fined-28000-for-broadcasting-footage-of-remote-hearing/5107273.article
© Mark Pearson 2021
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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