By MARK PEARSON
Most Australian followers of this blog will have seen in the news that Yahoo!7 has been fined $300,000 for sub judice contempt over a publication which triggered the discharge of a jury in a Victorian murder trial.
The relatively inexperienced online journalist who wrote and uploaded the story to the organisation’s news site (without attending the court case on which she was reporting) escaped with a two year good behaviour bond, but Supreme Court Justice John Dixon noted the impact upon her of the media coverage and public shaming.
The main problem with her story was that it included excerpts from the victim’s social media accounts indicating the accused had a history of violence towards her and that she feared for her life – prejudicial evidence of which the jury was unaware.
This was enough for Dixon J. to rule:
“I find that the conduct of the respondents in publishing the article during the trial of an accused on a murder charge was conduct in contempt of court. I am satisfied beyond reasonable doubt that the publication, objectively and as a matter of practical reality, had a real and definite tendency to prejudice the trial of the accused.” (2016 judgment, para 3).
As university classes resume for the new academic year, it is timely to consider the lessons of the sorry episode for journalists and journalism students, educators and media organisations.
The two judgments – the conviction in 2016 and the sentencing in 2017 – deserve careful examination by all. Here are the take-home messages for us all:
Journalists and Journalism students
According to her LinkedIn page, the journalist was a graduate of a one year broadcast journalism program in 2013 and had since worked at modeling, sales, and internships as a television producer before gaining her position with Yahoo!7 as morning news producer in June 2015, just over a year prior to the offending story.
No doubt some basics of media law would have been covered in that institution’s media law course as they are in tertiary journalism programs throughout Australia. However, just because a student passes a media law subject with a mark of more than 50% does not mean he or she has learned and remembered every key topic covered.
If you are a student about to embark on a media law course you must realize that the consequences for failing to remember and apply the key elements of media law in your workplace can cost you your professional reputation, many times your annual salary in fines or damages awards, and even your liberty in the form of a jail term.
This means media law is way too important to undertake with that common student approach of “passes build degrees”. You need to read your textbooks and assigned readings, review them, view and engage in other recommended learning materials and tools, grapple with learning problems – and set your mind to keep up to date with developments in each of the media law topic areas. In other words, you need to make media law your passion and hobby if you are to have a good chance of staying out of trouble with the law.
That goes for working journalists as well as students. My experience in training working journalists is that most have forgotten the basic principles of defamation and contempt they learned at university or in training courses many years prior.
As for content, the key lesson from this case is that while a criminal trial is pending or in progress you should only report what has been stated in court in the presence of the jury. Dixon J. summed up the basic principles of sub judice contempt particularly well at para 24 of the 2016 trial:
(a) All contempt of court proceedings involve circumstances where there has been an interference with the due administration of justice;
(b) The law is concerned with the tendency of the matter published in the risk created by its publication. It is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;
(c) The test for liability for sub judice contempt is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass particular legal proceedings or interfere with the due administration of justice in the particular proceeding;
(d) The tendency is to be ‘determined objectively by reference to the nature of the publication and it is not relevant for this purpose to determine what the actual effect of the publication on the proceedings has been or what it probably will be. If the publication is of a character which might have an effect upon the proceedings, it will have the necessary tendency, unless the possibility of interference is so remote or theoretical that the de minimis principle should be applied’;
(e) The tendency is to be determined at the time of the publication;
(f) Publication on the internet occurs when the material is uploaded onto the internet;
(g) Proof of an intention of the contemnor to interfere with or obstruct the administration of justice is not a necessary element to be proved;
(h) It is not relevant to consider the actual effect of the publication. Regard is had to the nature and content of the publication and to the circumstances in which it occurred;
(i) Publishing or broadcasting material that is inadmissible before a jury may have the necessary tendency to prejudice an accused’s right to a fair trial;
(j) It is an elementary principle in the administration of criminal justice that, apart from exceptional cases, usually defined by statute, the bad character or prior convictions of an accused cannot be put before the jury on a trial;
(k) The law sets its face against trial by prejudice and innuendo. The principle that the prosecution may not adduce evidence, tending to show that an accused person has been guilty of other criminal acts or has a propensity to violent behaviour, for the purpose of leading to the conclusion that he is a person likely to have committed the offence with which he is charged is deeply rooted and jealously guarded;
(l) The weight and importance of the various factors that will be material in assessing the circumstances of publication will vary from case to case. Broadly speaking, the more important factors will include the following: the content of the publication; the nature of the proceedings liable to be affected, whether they are civil or criminal proceedings and whether at the time of publication they are pending at the committal, trial or appellate stage; the persons to whom the publication is addressed; and finally, the likely durability of the influence of the publication on its audience; …
Para 25: For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood. In 1811, Lord Ellenborough stated in R v Fisher:
“If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced’.”
Para 26: More recently, in 1985, Watkins LJ in Peacock v London Weekend Television reaffirmed the balance between a fair trial and media reporting:
“In our land we do not allow trial by television or newspaper. Until the well-recognised institution of this country for the doing of justice, namely the courts, have worked their course, then the hand of the writer and the voice of the broadcaster must be still.”
Para 27: The rule is well understood by journalists through their education and is communicated to journalists by the court. The court’s website has a guide ‘Covering the Courts’ that stresses the importance of not disclosing material that is kept from a jury:
“Remember the golden rule: do not report anything said in the absence of the jury.
Advice: study, understand and remember these basic principles and you might avoid the fate of this Yahoo!7 reporter.
Much as we would like to believe otherwise, we all secretly know that this Yahoo!7 journalist could have been any one of our graduates in the modern news media environment.
24/7 rolling deadlines, staffing shortages, acute competition, minimal on the job training, combined with the rookie’s urge to prove themselves in a tough occupation mean that shortcuts are taken, mistakes are made, and much of the knowledge gained doing highly caffeinated swatting for media law exams has long since exited the memory banks.
This case is a clarion call to us to revisit our curricula and pedagogies and implement the latest learning and teaching techniques to “scaffold” and “deepen” our learning.
My recent experience has been that a combination of problem-based learning, formative quizzes, and end of semester problem scenarios seem to be far superior to the traditional end of semester sit-down exam of yesteryear. Add to the mix student discussion of cases and law reforms as they unfold, along with the embedding of some key media law revision in other subjects, and you gain confidence that the key principles will be learned and remembered in the news room – an exercise in genuine “mindful journalism” or “reflection-in-action”.
The halcyon era for media law training in news organisations was 1990-1994 with the operation of the Keating Government’s training guarantee levy – an obligation on corporations to spend 1.5% of their payroll on structured training courses. Back then regional journalists, for example, received up to five full days of media law training as part of their award and could not be promoted without being certified that they had undertaken it. From memory, it consisted of two days of defamation training, one day on contempt, another on court reporting, and the final on a mixed bag of other media law topics.
If they are lucky, journalists today might get a couple of hours every year or so of a media law briefing from a lawyer, on the strong (and usually false) assumption that they already know most of it from their university degrees.
In his 2017 sentencing judgment, Dixon J. found serious shortcomings in Yahoo!7’s training and workplace protocols justified the $300,000 fine:
“Para 26: I infer that the contemptuous publication likely occurred, at least in part, as a consequence of inadequate resourcing, driven by profit or commercial motivations. Conduct by media organisations that contributes to the risk of sub judice contempt in pursuit of a profit motive must be strongly discouraged.”
He was skeptical about the sustainability of the company’s assurances that it now had new systems in place to train journalists, assign extra editorial staff to manage the workload, and to engage external lawyers to assess court stories.
“Para 27: I can find no feeling of comfort that, should the profit motive rear its head in the future, Yahoo!7 (and other media organisations) will continue to incur expense to maintain systems and procedures that protect the integrity of court processes.”
“Para 30: The arrangements about legal advice before articles are uploaded to the internet appear clumsy, unrealistic in some respects, and may prove more difficult to enforce in practice, given time constraints and their importance in the business model being employed by Yahoo!7”.
One can only hope that all of those stakeholders – students, journalists, educators and media organisations – pay heed to those important lessons the learned judge has so eloquently expressed.
UPDATE: Court copycats caught out. ABC Media Watch exposes how some news organisations lift court reports from their competitors – an unethical practice with major legal pitfalls. View here.
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 2017