Tag Archives: Facebook

Sub judice – time to brush up on your Latin


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.


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.

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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Legal responsibility online: are you left carrying the can? ( #defamation #blogging )


[Loosely adapted from my new book  – Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]


The courts have long held that anyone having direct responsibility for a publication is legally liable for it, so if your blog or comment is on the website or social media site of another organisation, both you as the writer and whoever is hosting your work can be sued for defamation. (Some jurisdictions – most notably the US – offer strong defences to the hosts of third party comments.)

If someone edits or moderates your work before it is published, they too share the burden of legal liability. That happened recently to the News Limited website Perthnow, when it was ordered to pay $12,000 compensation to a West Australian mother over racist comments posted about her deceased teenage sons. The comments had been approved by a moderator.

If anyone republishes your work, through syndication or perhaps even through retweeting or forwarding your defamatory material, they also are also liable. Even someone who inserts a hyperlink to libellous material can be sued for defamation in some places, although the Supreme Court of Canada rejected this position in a landmark decision last year.

Plaintiffs will sue the writer, editor or host organisation for a range of reasons. Sometimes they just want to gag the discussion, so they issue a defamation writ to chill the criticism. This is known as a ‘SLAPP’ writ – ‘Strategic Lawsuits Against Public Participation’ – and in some countries they are simply thrown out of court as an affront to free expression. Others allow them. Plaintiffs often want to get the highest possible damages award from someone who can afford to pay it, so they might bypass the original impoverished blogger and sue the wealthier company that republished the material. Sometimes they enjoin all of them in their action, although this adds to their legal costs if they lose.

As the Australian High Court ruled in the Gutnick case in 2002, publication happens whenever and wherever someone downloads it. If you have published something defamatory about someone who is unknown in your own state or country you are probably safe from suit or prosecution until you travel to the place where they do have a reputation.

They would have to prove they could be identified from the material you posted. Of course, if you have named somebody they are identifiable, but what if you stop short of naming them but use other identifiers? For example, what if your blog questioned the ability of ‘a prominent 21st Avenue cosmetic surgeon responsible for the fat lips and lopsided breasts of at least three Oscar winners’? You would be much better taking legal advice first and actually naming the surgeon if you have a solid defence available to you. Why? Because there might well be other surgeons who meet this description, and you would have a hard time defending a suit from them if you didn’t even know they existed.

If your description is broad enough you will normally be reasonably safe. So if you had made your description fairly general – ‘an LA cosmetic surgeon’ – the group would be too large for any single surgeon to be able to prove you were talking about them. (They say there are almost as many cosmetic surgeons as lawyers in LA!)

Of course, if you decide after taking legal advice to actually name someone you need to ensure you use enough identifiers to ensure they will not be mistaken for someone else. That’s why court reports in the news usually state the full name, suburb, occupation and age of the accused person. Otherwise someone by the same name might show their reputation was damaged by proving their friends and colleagues thought they were the rapist, murderer or drug dealer you were writing about.

Your legal responsibility might even extend to pressing the ‘Like’ button on Facebook, as courts struggle with the legal status of this symbol – even in the US. See some useful analysis of this here.

See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.

© 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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SHIELD LAWS update – an experiment in collaborative scholarship


Both of my recent books are relatively up to date but anyone researching media law in traditional and new platforms knows how quickly the landscape is changing.

It’s for that reason I’m launching some collaborative update pages that take in some of the key chapters from both The Journalist’s Guide to Media Law (with Mark Polden, 2011) and Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012).

I’ve removed the copyright symbol © from these posts so these pages can serve as a resource for anyone in the fields of media law and social media law – students, journalists, lawyers, researchers, teachers … and even those writing competing books on the subject! (Remember, however, that we can’t steal the actual words of contributors when we write up the cases or materials they scout for us – we will need to verify the material and links and write them up using our own form of expression.) 

 I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words).

We also have a DEFAMATION update and a CONTEMPT update.

Cheers, Mark Pearson.


[contributed by Virginia Leighton-Jackson]

Australian journalism shield laws put to the test… and upheld –18.07.2012 and 20.07.2012

In the Federal Court, the Commonwealth and attorneys have accepted journalist privilege inherent in Australian evidentiary shield laws for journalists under federal law, enabling the journalist who broke the Slipper diary scandal to keep private documents which would reveal the identity of his source.

However, in an unusual move, hearsay evidence (in this case, text messages downloaded from Slipper staffer James Ashby’s mobile phone) will be used within the upcoming trial, both to substantiate Ashby’s claims of sexual harassment, and potentially prove that the person journalist Steve Lewis was trying to protect is Ashby himself.

Lewis initially tried to use the new shield laws to keep from providing assorted documents including text messages between himself and other parties involved in the scandal, part of a batch he was subpoenaed to provide to the court last week. 

Federal Court Justice Steven Rares initially rejected this first claim, arguing that journalistic privilege did not apply as it was likely that the public already knew the identity of Lewis’ informant:

 “The text messages suggested that Mr Lewis requested Mr Ashby to provide Mr Lewis with copies of extracts from Mr Slipper’s diary for the period between 31 December 2009 and 9 January 2010 and 10 and 11 November 2010 and that Mr Ashby had provided those to Mr Lewis. In effect, Mr Slipper’s argument amounted to asking Mr Lewis to confirm whether or not his source was Mr Ashby.”

The Justice also expressed mixed feelings about the new laws, saying that while they have created a statutory right for journalists to protect their sources, “I am of opinion that it would be unrealistic to construe s 126H(1) in a way that gave journalists, in effect, carte blanche to refuse to produce any documents or give evidence that disclosed the identity of a source…”


‘James Ashby v Commonwealth of Australia & Peter Slipper’, 18.07.2012, http://glj.com.au.ezproxy.bond.edu.au/1845-article

Ashby’s full affidavit, 08.06.2012, http://glj.com.au.ezproxy.bond.edu.au/files/ashbyaffidavit.pdf

Evidence Act 1995 – Sections 126G and 126H – Journalists Privilege Amendment 2011: http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s126g.html http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s126h.html 

 The Sydney Morning Herald

‘Peter Slipper: Ashby text messages allowed as evidence’, 20.07.2012: http://www.smh.com.au/opinion/political-news/ashby-text-messages-allowed-as-evidence-20120720-22efq.html


‘Ashby’s texts can be used in court: judge’, 20.07.2012, http://www.sbs.com.au/news/article/1670846/Ashbys-texts-can-be-used-in-court-judge


Earlier: Slipper Diary debacle to test journalism Shield Laws – 13.07.2012

Lawyers for journalist Steve Lewis have argued that he should not have to provide documents to the court on the grounds that they may reveal a confidential source, the first real test of the ‘Shield Laws’ introduced by government last year.

Lewis, who was in court today, has been subpoenaed to produce emails, text messages and phone records to and from former Howard government minister Mal Brough; James Ashby’s media advisor, Anthony McClellan; and another staffer, Karen Doane, ie all the communications he had with Peter Slipper’s staffer James Ashby

In April Lewis wrote a newspaper article that revealed Slipper’s media adviser, James Ashby, had filed a sexual harassment case against his employer, prompting Slipper to claim the two had conspired to damage his reputation and publicise the case against him.

Both Slipper and the Federal government are trying to have the case declared an abuse of process.



“Slipper subpoena journalist seeks to protect source”, 13,07.2012: http://www.smh.com.au/opinion/political-news/slipper-subpoena-journalist-seeks-to-protect-source-20120713-22073.html#ixzz20U7QX63D

“Journo shield laws to face their first test”, 13.07.2012: http://www.theaustralian.com.au/media/journo-shield-laws-face-first-test- in-federal-court/story-e6frg996-1226424883301

“Slipper journalist fights to keep documents secret”, 13.07.2012: http://www.radioaustralia.net.au/international/2012-07-13/slipper-journalist-fights-to-keep-documents-secret/979622

“Slipper journalist fights to keep documents secret”, 13.07.2102:http://www.abc.net.au/news/2012-07-13/slipper-journalist-fights-to-keep-documents-secret/4129452

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DEFAMATION update – an experiment in collaborative scholarship


Both of my recent books are relatively up to date but anyone researching media law in traditional and new platforms knows how quickly the landscape is changing.

It’s for that reason I’m launching some collaborative update pages that take in some of the key chapters from both The Journalist’s Guide to Media Law (with Mark Polden, 2011) and Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012).

I’ve removed the copyright symbol © from these posts so these pages can serve as a resource for anyone in the fields of media law and social media law – students, journalists, lawyers, researchers, teachers … and even those writing competing books on the subject! (Remember, however, that we can’t steal the actual words of contributors when we write up the cases or materials they scout for us – we will need to verify the material and links and write them up using our own form of expression.) 

 I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words). Australian and international cases and commentary are welcome.

I’ve already launched the CONTEMPT update page. Here is the DEFAMATION update page – with this first set of contributions from law and journalism student Fiona Self (thanks, Fiona!).

Cheers, Mark Pearson.

We also now have a  SHIELD LAWS update.


(Update: These contributions from Virginia Leighton-Jackson, thanks.)


Caller, not broadcaster, responsible for defamation – 3.04.2012 – 27.07.2012

A man who called radio station 2HD Newcastle and made defamatory comments about an ABC reporter has been ordered to pay 80 per cent of the resulting pay out, plus the cost of two trials in the New South Wales Supreme Court.

The claims that caller Craig Stephens made were found to be “untrue in every respect” in the proceedings and prompted the ABC broadcaster to request an apology which was carried out on air.

In an assessment of the 2HD broadcaster who took the call, it was found that he had no reasonable suspicion to use the ‘kill button’ which was primed with a seven second delay, and thus should not be held entirely responsible for the resulting lawsuit; especially considering that Stephens was found not to be a ‘satisfactory witness’ in the proceedings, denying some of the evidence presented in court (including the email in which he threatened to kill himself in front of the head office of 2HD if he was sued, for the purpose of damaging the stations ratings and advertising).

Stephens also attempted to use the defences of fair comment/ honest opinion and qualified privilege, neither of which were upheld.

The court decided that Stephens should contribute to almost all of the damages settled upon, with 2HD paying the remaining 20 per cent, with the presiding judge saying:

“…2HD must share some responsibility simply as a result of enabling the publication by the talkback format.”


2HD Broadcasters Pty Ltd & Newcastle FM Pty Ltd v Wendy Stephens & Craig Stephens, 2.08.2012: http://glj.com.au.ezproxy.bond.edu.au/1853-article 

Supreme Court of New South Wales, full judgement, 27.07.2012: http://glj.com.au.ezproxy.bond.edu.au/files/2hdvstephensjudgment.pdf

2HD Broadcasters Pty Ltd & Newcastle FM Pty Ltd v Wendy Stephens & Craig Stephens trail report, 2.04.2012: http://glj.com.au.ezproxy.bond.edu.au/1781-article


Rafiq Ahmed v Nationwide News Pty Ltd & News Digital Media Pty Ltd, Yoni Bashan trial – 17.05.2012

In the ongoing trail playing out in the NSW District Court, Sunday Telegraph reporter Yoni Bashan has given evidence for Nationwide News in the defamation action brought by Rafiq Ahmed.

Ahmed, a fraud squad detective, is suing over an article published in the Sunday Telegraph.

The article in question was published in November of 2009 where Bashan has said he intended to convey that the detective was corrupt.

News is pleading using many defences including truth, fair report, fair comment, publication of documents, qualified privilege, honest opinion, and offer of amends.

Bashan said that the matters could not be disputed as Ahmed was found guilty during a Police Integrity Commission annual report.

However, Ahmed won an appeal in December of 2010, complicating the matter.

The trial is ongoing with Ahmed still taking action against all involved.


Gazette of Law and Journalism

Trial report 17 May: http://glj.com.au.ezproxy.bond.edu.au/1807-article

Trial report 15 May: http://glj.com.au.ezproxy.bond.edu.au/1805-article

Yoni Bashan’s article, “Rogues gallery of corrupt cops”


AustLii database

            Ahmed v Nationwide News Pty Ltd [2010] NSWDC 183 (20 August 2010): http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2010/183.html?stem=0&synonyms=0&query=Rafiq%20Ahmed


Contributions from FIONA SELF:

Twitter refuses to uncover Bankwest senior executive impersonator

Title: Social media can kill reputation

Author: Tony Boyd

Date: 28 August 2012

Type of source: The Australian Financial Review

Country: Australia

Link to source: http://afr.com/p/business/chanticleer/cba_twitter_nightmare_highlights_UeoWmvxkwSDRDBjNiPcylJ


  • An unknown person impersonated a Bankwest senior executive on Twitter and tweeted inflammatory material.
  • If those things had been published in an outlet owned by Fairfax Media or News Ltd, an injunction could have been sought to track down the impersonator.
  • The Commonwealth Bank of Australia had to contact Twitter to have the account removed, which was a complex and costly process.
  • The process of getting a false account removed can take about two weeks, according to CBA’s general counsel and head of corporate affairs David Cohen.
  • Twitter refused to tell CBA the account details because it would have been a breach of their privacy rules.
  • Currently, it appears that anyone can steal another person’s identity and say whatever they want, without facing any of the consequences.
  • Many companies (such as NAB) use Twitter to deal with complaints and to inform customers of any technology outages.


Defamed cricket player awarded $142,000 in damages for 24 word tweet

Title: Chris Cairns wins libel action against Lalit Modi

Authors: AFP

Date: 26 March 2012

Type of source: Newspaper article and full judgment

Country: United Kingdom (Royal Courts of Justice)

Link to source: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/cairns-v-modi-judgment.pdf


Citation: Cairns v Modi [2012] EWHC 756 (QB)


  • Libel case
  • Chris Cairns (UK cricket player) sued Lalit Modi, former chairman of the Indian Premier League, who tweeted on 10 January 2010 “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.”
  • The tweet was seen by less than 100 of Modi’s followers, but after the online cricket publication reported by essence of the tweet, it’s estimated to have been ready by somewhere between 450 – 1500 people.
  • UK Justice David Bean: Although publication was limited, that does not mean that damages should be reduced to trivial amounts.
    • Cairns endured a “sustained and aggressive” attack on his reputation
    • $142,000 damages plus legal costs


Meggitt #suingtwitterbecause of Hardy tweet

Title: Twitter sued over Hardy Tweet

Author: Michelle Griffin

Date: 17 February 2012

Type of source: Newspaper (The Age)

Country: Australia

Link to source: http://www.theage.com.au/technology/technology-news/twitter-sued-over-hardy-tweet-20120216-1tbxz.html


  • In November 2011, writer Marieke Hardy wrongly named Joshua Meggitt as the author of a hate blog via Twitter
  • Hardy and Meggitt settled out of court (estimated $15,000) and Hardy published an apology on her blog
  • Meggitt is now suing Twitter Inc
  • The original tweet appeared on Twitter’s homepage, was copied by some of Hardy’s 60,897 followers
  • Meggitt’s lawyers say they are suing for the retweets and the original tweet


Bahraini activist three month Twitter defamation sentence overturned

Title: Bahraini activist cleared of defamation

Author: DPA

Date: 24 August 2012

Type of source: Newspaper article (Sydney Morning Herald)

Country: Bahrain

Link to source: http://news.smh.com.au/breaking-news-world/bahraini-activist-cleared-of-defamation-20120824-24ph7.html


  • Bahraini activist Nabeel Rajab made some comments on Twitter calling for the resignation of Bahrain Prime Minister Khalifa bin Salman al-Khalifa
  • Sentenced to three months in jail
  • Sentence was overturned
  • Interesting points:
    • Rajab will stay in prison because he’s already serving a three-year term of taking part in anti-government protests
    • The report that the Court overturned his defamation sentence comes from the state-run Bahrain News Agency


Poet sentenced to one year in jail for posting a defamatory poem on Facebook

Title: Oman sentences writer, poet, for defaming sultan

Author: Reuters

Date: 9 July 2012

Type of source: Online article (Yahoo! news)

Country: Oman

Link to source: http://news.yahoo.com/oman-sentences-writer-poet-defaming-sultan-150629428.html


  • Omani poet Hamad al-Kharusi published a poem referring to the Sultan on his Facebook page
  • Sentenced to one year in jail for defamation and for violating information technology laws
  • Another three people were also convicted of defamation, one (author Hammoud Rashedi) held up a sign with certain sentences directed at Sultan Qaboos at a peaceful demonstration.
  • Rashedi was sentenced to six months in jail for defamation


Comedian Mick Molloy loses appeal over not-so-funny defamation

Title: Molloy loses appeal over Cornes defamation

Author: Candice Marcus

Date: 24 August 2012

Type of source: ABC News and unreported judgment

Country: Australia

Link to source: http://www.abc.net.au/news/2012-08-24/molloy-loses-appeal-over-cornes-defamation/4221106?section=sa


Citation: Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99 (24 August 2012)


  • South Australia Supreme Court, appealed to Full Court
  • Defamatory comments made by comedian Mick Molloy on TV program Before The Game in 2008 about former federal Labor candidate Nicole Cornes.
  • Chief Justice Chris Kourakis said Molloy’s attempted joke “fell very flat.”
  • Molloy and Channel 10 had to pay Mrs Cornes $85,000 in damages plus interest and costs (total $93,000)


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CONTEMPT update – experiment in collaborative scholarship


Both of my recent books are relatively up to date but anyone researching media law in traditional and new platforms knows how quickly the landscape is changing.

It’s for that reason I’m launching some collaborative update pages that take in some of the key chapters from both The Journalist’s Guide to Media Law (with Mark Polden, 2011) and Blogging and Tweeting Without Getting Sued (Allen & Unwin, 2012).

I’ve removed the copyright symbol © from these posts so these pages can serve as a resource for anyone in the fields of media law and social media law – students, journalists, lawyers, researchers, teachers … and even those writing competing books on the subject! (Remember, however, that we can’t steal the actual words of contributors when we write up the cases or materials they scout for us – we will need to verify the material and links and write them up using our own form of expression.) 

 I’ll get the project started with contributions from some of my own students and research assistants working on other projects and the material will appear in no particular order. Please offer your own alerts via the comments section of each topic’s blog post. (Remember there is word limit on comments so please keep contributions under 300 words).

Let’s get started with this update on Contempt law – both Australian and international – with this first set of contributions from law and journalism student Edward Fleetwood (thanks, Edward!).

We now also have a DEFAMATION update.

Cheers, Mark Pearson.


Update September 18, 2012 from Edward Fleetwood:

The Mail Online was ordered to remove articles that contained information expressly excluded from the trial of police officer Simon Harwood

Title: Regina v Simon Harwood

Authors: Mr Justice Fulford

Date: 20 July 2012

Location: Southwark Crown Court

Link: http://www.judiciary.gov.uk/media/judgments/2012/simon-harwood-judgment-20072012

–          PC Harwood was charged with the manslaughter of Ian Tomlinson the G20 protest in London

–          Judgement concerns two reports on Mail’s Online concerning alleged incidents of violence on the part of defendant, PC Harwood

–          On 22 May 2012 – Justice Fulford decided that the prosecution was not entitled present evidence related to two previous incidents so as not to prejudice the jury

  • 25 May 2005 when the defendant allegedly used unnecessary force in the arrest of Mr Owusu-Afriye
  • 24 November 2008 defendant allegedly twisted the arm of Mr Samms when arresting him

–          However, a number of newspaper websites had articles that included details about the 2 incidents

  • Additionally social networking sites such as Facebook had published “posts” that referred to these allegations and websites and blogs run by particular individuals also expressed their own personal opinions

–          31 May 2012 – Justice Fulford sent a letter to the main websites advising them to remove the relevant articles otherwise they can make submissions before the judge

–          15 June 2012 – Justice Fulford after hearing media submissions ordered publications to be removed by 8:00am Monday 18 June 2012 before the jurors began to arrive, otherwise those responsible would be in contempt

–          Once the trial began, most news sites, Wikipedia and most “bloggers” had complied, EXCEPT The Mail Online which still had 2 articles online, dated 23 July 2010 and 4 September 2010

–          Paras [22]-[35] detail the submissions of the Mail Online and the Crown Prosecution Service

–          Justice Fulford posed two questions to determine whether the Mail Online was in contempt

  • Are the two articles in the Mail Online publications for the purposes of Contempt of Court Act (CCA) section 2(1)?
    • Section 2(3) of CCA “at the time of the publication” encompasses the entire period during which the material is available on a website from the moment of its first appearance through to when it was withdrawn
    • 2 articles continued to be “published” whilst the proceedings were active
  • Do the two articles in the Mail Online create substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced?
    • In determining whether PC Harwood’s push of Ian Tomlinson was reasonable force the jurors had to assess his state of mind at the time
      • If jurors discovered that PC Harwood had an alleged history of violent and irrational behaviour then their judgement of him may be prejudiced
      • A juror, looking for contemporary articles on the trial, could easily come across the 2 articles THEREFORE the publication constituted a substantial risk of impeding or prejudicing the course of justice

–          What steps should the court take?

  • Approach taken by court will depend on circumstances
    • Judge may refer matter to Attorney General for possible prosecution
    • Judge may suggest to party to make an application to the High Court for an injunction
    • However, Justice Fulford believes that Crown Court (trail court) should deal with the matter as any other remedy will likely cause “delay, expense and prejudice to the defendant and the witnesses”
  • Justice Fulford satisfied issuing an injunction for relatively short period of the trial was necessary and proportionate
    • Also not incompatible with the right of freedom of expression under Article 10 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms
  • On 16 July 2012 – Justice Fulford ordered the removal of the two articles

House Committee looking into embattled MP Craig Thomson was concerned confidential information was leaked to a journalist

Title: Report concerning the possible unauthorised disclosure of the internal proceedings of the Committee

Authors: House of Representatives Standing Committee of Privileges and Members’ Interests

Date: August 2012

Location: Canberra, Australia


–          On 24 May 2012 Michelle Gratten, a journalist, published articles in the online version of The Age and in the print edition of The Age of 24 May 2012 (Appendix A)

–          The articles included unauthorised disclosure of the internal proceedings of the Committee’s private meeting held on 23 May 2012

  • Committee was meeting to discuss embattled MP Craig Thomson’s address to parliament

–          Asked by the Committee about the sources, Ms Gratten would not discuss any matters to do with sources

  • Ms Gratten stated: “…the whole question of sourcing of material involves confidentiality and that journalists do not breach that confidentiality. This is how we operate in my trade… We accept the consequences of them.”

–          Committee reiterates the view from a 1994 report that “it is also important that where it is necessary to do so the Houses are willing to proceed against those who knowingly publish the material”

–          Committee made it clear to the Press Gallery journalists and their publishers that a potential contempt can be committed in the act of publishing material from parliamentary committees that has not been authorised for publication

–          As noted in 1994 Report the House has a number of remedies available for contempt

  • Withdrawal of access to the building
  • Briefing for members of the Parliamentary Press Gallery on the authorised disclosure of committee evidence and proceedings

Committee recommends

–          Adoption of Appendix C

  • (1)(f) Where an unauthorised disclosurehas been made the Committee should consider
    • (i) Whether it is appropriate to make a finding of contempt in relation to the publication of evidence or proceedings
    • AND (ii) whether recommendations are made to the House for the imposition of appropriate penalties on the journalists or news media involved

–          Process of approval of Parliamentary Press Gallery/Media Pass so that all pass holders are aware of prohibition of unauthorised disclosure of committee proceedings


California has passed a law prohibiting jurors from using social media and the Internet to research or disseminate information

Title: New California Law Prohibits Jurors’ Social Media Use

Author: Eric P. Robinson

Date: 1 September 2011

Location: California, USA

Link: http://www.citmedialaw.org/blog/2011/new-california-law-prohibits-jurors-social-media-use

–          The new statute 2011 Cal. Laws chap. 181 expands the state’s existing jury instructions by barring jurors from communicating outside the jury room

–          Sponsor of the legislation, Assembly Member Felipe Fuentes said “Although current law arguably prohibits the use of electronic/wireless communication devices to improperly communicate, disseminate information or research, the fact that this kind of communication is not expressly included in current law has resulted in increased problems in courts across the county.”

–          The new law has been in effect since 1 January 2012


Mauritian newspaper editor appealed directly to the Privy Council after being found in contempt for scandalising the court

Title: Mauritian editor in scandalising case seeks Privy Council appeal

Authors: Media Lawyer

Date: 10 August 2012

Location: Mauritius

Link: http://www.societyofeditors.co.uk/page-view.php?pagename=Courts&parent_page_id=149&news_id=4334&numbertoprintfrom=1&language={language}

–          Dharmanand Dhooharika, Editor-in-Chief of Mauritian French-language Samedi Plus has appealed directly to the Privy Council

–          Mr Dhooharika was sentenced to three months imprisonment for scandalising the court after his paper ran articles that contained allegations about how the Chief Justice handled a particular case, Paradise litigation

  • Articles contained allegations made by one of the parties to the case, Dev Hurnam and his comments about his attempt to have the Chief Justice charged with contempt of court

–          In this petition to appeal to the Privy Council Mr Dhooharika is arguing that

  • The offence of scandalising the court is contrary to the right to freedom of speech guaranteed in the Mauritian constitution
  • Mr Dhooharika was unable to give evidence in his defence
  • The Supreme Court accepted without question that the Mr Hurnam’s comments were “highly defamatory”
  • The charges were only brought against Mr Dhooharika and Samedi Plus even though other Mauritian media outlets report Mr Hurnam’s allegations


Ignorance of the law no defence for a journalist who did not ask for permission to communicate with backpacker murderer

Title: Reporter has no conviction recorded for jail interview

Authors: Kristy O’Brien

Date: 22 August 2012

Location: Darwin, NT Australia

Link: http://www.abc.net.au/news/2012-08-22/rahni-sadler-bond-no-conviction-murdoch-tv-interview-darwin/4215634

–          Bradley John Murdoch is serving a 28-jail sentence for the murder of British backpacker Peter Falconio in 2001

–          July 2011 permission was granted for Murdoch to communicate with his lawyer Andrew Fraser

  • Under Northern Territory law, a prisoner requires permission to make and receive calls from the Director of Correctional Services

–          During the call, Mr Fraser handed the phone to journalist Rahni Sadler

  • Ms Sadler conducted an interview with Murdoch which was then aired on Channel Seven’s Sunday Night program

–          Ms Sadler was subsequently charged with communicating with a prisoner without permission from the Director of Corrective Services

–          In the Darwin Magistrates Court, her lawyer argued that Ms Sadler sought advice from her employer who instructed who that as she was speaking form another jurisdiction it was legal

–          However, Ms Sadler was convicted and given a 12-month good-behaviour bond with no conviction recorded


High Court of Australia has indicated that directions given by a trial judge are essential in addressing media publicity

Title: Dupas v The Queen (2010) 241 CLR 237

Authors: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell CJ

Date: 2010

Location: Victoria, Australia

Link: http://www.austlii.edu.au/au/cases/cth/HCA/2010/20.html

–          Before Peter Norris Dupas’ murder trial in the Supreme Court of Victoria an application was made on his behalf for a permanent stay of the trial due to pre-trial publicity

–          Trial judge, Cummins J rejected the application and his Honour gave detailed directions to the jury before, during and after the trial to exclude all information other than evidence presented during the trial

–          Jury found the accused guilty

–          He appealed and the Victorian Court of Appeal ordered a new trial

–          He then appealed to the High Court on the question of whether a stay of the trial or a retrial should have been granted

–          There was substantial media publicity for Dupas’ trial as a result of two prior murder convictions, appeals for those convictions and the third murder charge

–          Over seven years coverage included

  • Information on seven internet sites
  • Approximately 120 newspaper articles
  • Four books
  • A number of television programs

–          Although there was substantial pre-trial publicity, trial judge Cummins J concluded that he had “very responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case.”

–          At paragraph 21, the High Court includes the direction that Cummins J gave to the jury

  • Among other directions, his Honour instructed the jury that they should not decide the case on anything outside the court, do their own homework or look up anything on the internet

–          In his application to the High Court, Dupas sought to rely on the example given by Deane, Gaudron and McHugh in R v Glennon that there could be an ‘extreme’ or ‘singular’ case where a stay would be granted due to a “sustained media campaign of vilification and prejudgment”

–          However, the High Court dismissed this application and said:

  • “In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”


 Even Lords may be in contempt for their tweets

Title: Judge ordered Lord Sugar to remove expenses ‘tweet’

Authors: BBC News

Date: 26 May 2011

Location: United Kingdom

Link: http://www.bbc.co.uk/news/uk-politics-13560438

–          Lord Taylor was on trial for expenses fraud, the last in a series of trials of the an expenses scandal

–          Trial judge, Justice Saunders suppressed any reporting on the trial

–          However, Lord Sugar, a Labour peer and host of the UK version of the Apprentice, on the second day of the trial tweeted:

  • ‘Lord Taylor, Tory peer, in court over alleged expenses fiddle. Wonder if he will get off as he is a Tory compared to Labour MP who was sent to jail.’

–          When Justice Saunders was informed of the tweet he cleared the court and said “can someone contact Lord Sugar and get that removed”.

–          A spokesman for Lord Sugar said he was unaware of any reporting restrictions as he was out of the country and he removed the tweet within 20 minutes

–          His Honour also referred the matter to Attorney General Dominic Grieve who ultimately decided not to bring charges against Lord Sugar

–          In referring the matter, Justice Saunders said “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 of high profile figures relating to trials which were going to take place or were taking place posed a risk of prejudicing the fairness of a trial.

–          “And if so whether there were steps that could be taken to minimise that risk.”


Twitter may be in contempt for not handing over the tweets of an Occupy Wall Street protester

Title: Twitter’s in ‘contempt’: DA

Authors: Garett Sloane

Date: 8 September 2012

Location: New York City, NY USA


–          Malcolm Harris, an Occupy Wall Street protester is facing misdemeanour charges following an arrest during a march over the Brooklyn Bridge

–          The Manhattan District Attorney’s office has requested Twitter to hand over three months’ worth of messages tweeted by Mr Harris

–          In June 2012 Judge Matthew Sciarrino Jr. ruled that the Tweets had to be handed over

–          Although Twitter has appealed that decision, it may still be in contempt for not handing over the tweets

–          Twitter argues that users own their own tweets and that users should fight requests for information

–          However, Judge Sciarrino ruled Twitter, and not Mr Harris, had to fight the subpoena


Man behind the iconic Obama ‘Hope’ poster has narrowly missed a jail term for destroying documents on his computer

Title: Shepard Fairey gets two years’ probation in Obama ‘Hope’ poster case

Authors: David Ng

Date: 7 September 2012

Location: New York City, NY USA

Link: http://www.latimes.com/entertainment/arts/culture/la-et-cm-shepard-fairey-associated-press-obama-20120905,0,7012633.story

–          Shepard Fairey, a Los Angeles street artist, created the iconic Barack Obama “Hope” poster from a 2006 an Associate Press photograph of the former senator

–          Mr Fairey claimed he had used a photo from another source

–          However, in 2009 he admitted to destroying documents and submitting false images in his legal battle with AP

–          In February 2012, Mr Fairey pleaded guilty to once count of criminal contempt for destroying documents, manufacturing evidence and other evidence

–          7 September 2012, Mr Fairey received a sentence of two years’ probation, a $25,000 fine and 300 hours of community service

–          In a statement he said that his actions had not only been “financially and psychologically costly to myself and my family, but also helped to obscure what I was fighting for in the first place — the ability of artists everywhere to be inspired and freely create art without reprisal.”


Media outlets need to be cautious about the information they publish when juries are still deliberating

Title: HM Attorney General v Associated Newspapers Ltd & Anor [2012] EWHC 2029 (Admin)

Authors: President of the Queen’s Bench Division – Sir John Thomas

Date: 18 July 2012

Location: United Kindgom

Link: http://www.bailii.org/ew/cases/EWHC/Admin/2012/2029.html

–          Levi Bellfield was on trial for the attempted kidnapping of Rachel Cowles, aged 11, on 20 March 2002 and the kidnapping and murder of Milly Dowler, aged 12, on 21 march 2002

  • As a side note – allegations that News of the World reporters had accessed Milly Dowler’s voicemail led to the News of the World phone-hacking scandal

–          The jury retired on 22 June 2011 and returned the next day to convict Bellfield for the kidnapping and murder of Milly Dowler

–          However, the jury continued their deliberations in relation to the attempted kidnaping of Rachel Cowles

–          The assistant head of communications at the Crown Prosecution Service sent e-mails to various media organisation reminding them that proceedings were still active and nothing should be reported

–          However, articles the following morning in the Daily Mail and the Daily Mirror contained information that had not been before the jury

–          On 24 June 2011 counsel for Bellfield applied to have the jury discharged from giving a verdict in respect of the attempted kidnapping of Rachel Cowles

  • The judge agreed finding that there had been “… an avalanche of material which strayed far beyond either the facts of what happened yesterday or the facts of the offences”

–          The matter was then referred to the Attorney General to determine wither the publication of the material on 24 June 2011 contravened the strict liability rule under the Contempt of Court Act 1981

–          Analysing the articles

  • Articles in the Daily Mailcontained information that
    • Bellfield may have committed the murders of Lin and Megan Russell
    • Police may have tenuous evidence connecting Bellfield to the drug induced rape of girls aged between 14 and 16
  • Articles in the Daily Mirrorcontained information that
    • Bellfield sexually abusing previous partners Johanna Collings and Emma Mills
    • His boasting about raping a disabled girl on a car bonnet

–          From the information published in the respective papers, his Honour determined that there was a real risk that the jury would have thought that the additional material was relevant to the remaining count of attempting to abduct Rachel Cowles

  • Essentially, the allegations of Belfield’s interest in and depraved conduct to young girls was highly prejudicial to the count that the jury was still considering

–          Finding the papers in contempt of court the judge invited submissions from the Attorney General and counsel for the two newspaper on the penalty


(Posted earlier)

New Zealand Courts will temporarily postpone open justice to ensure a fair trial

Title: Siemer v Solicitor-General [20120 NZCA 188 (11 May 2012)

Authors: O’Regan P, Harrison and Wild JJ

Date: 11 May 2012

Type of source – case of the Court of Appeal of New Zealand

Country: New Zealand

Link to source: http://www.nzlii.org/nz/cases/NZCA/2012/188.html

–          9 December 2010 Winkelmann J, Chief High Court Judge, delivered a judgement in R v B, which was a pre-trial ruling as part of the highly published Hamed proceedings

–          At the top of the 9 December judgement read:


–          Vincent Siemer, who owns two identical websites, published an article Judge or be Judged on his website that discussed the case, the suppression order and included a hyperlink to the judgement

–          The judgement discusses the differences between the courts in New Zealand and England

  • New Zealand – “In recognising the inherent power to postpone publication, New Zealand law has settled on striking the balance in favour of the right to a fair trial whenever it conflicts with freedom of expression and the principle of open justice, and then only on a limited and temporary basis. And, significantly, as we shall explain, the legislature has not chosen to intervene.” [78]
  • English position – courts do not have an inherent power to make non-publication orders and can only do so when it is authorised by statute (Contempt of Court Act 1981)

–          Explanation at [71] that criminal proceedings have become subject of increasingly intense public scrutiny due to established and social media

–          Result – appeal dismissed, Siemer was given a sentence of 6 weeks imprisonment


Similar to shredding of important documents, destruction of material on social media may amount to contempt

Title: Discovery in the information Age – The interaction of ESI, Cloud Computing and Social Media with Discovery, Depositions and Privilege

Authors: Michael Legg and Lara Dopson

Type of source: Journal Article – referenced as [2012] UNSWLRS 11

Country: Australia

Link to source: http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/UNSWLRS/2012/11.html?stem=0&synonyms=0&query=Contempt%20AND%20social%20media

–          Paper focused on how the legal profession needs address the rise in discovery documents as a result of electronically stored information (ESI)

–          Average social media profile contains many potentially useful and discoverable details, including

  • Person’s hometown, date of birth, address, occupation, ethnicity, height, relationship status, income, education, associations, “likes,” and comments, messages, photos and videos

–          Although Facebook and Twitter have strengthened their privacy settings, the sites may pass on any material to the justice system

–          Similar to shredding or burning paper documents, deleting relevant material on social media sites may amount to contempt of court

–          Social media sites may even be forced to provide evidence of material being deleted

  • Palavi v Radio 2UE Sydney Pty Ltd – plaintiff’s Facebook page stated: “This is gonna sound stupid but how do I get pics of my iphone that I don’t want? Like ones that have synced from computer?

–          Admissibility – as social media becomes more mainstream evidentiary issues of authentication and hearsay may arise


English Courts will not find a person in contempt of court when they are discussing a trial before a magistrate or judge

Title: John Terry trial: Twitter’s contempt for the rules

Authors: David Banks

Date: 9 July 2012

Location: UK

Link to source: http://www.guardian.co.uk/media/2012/jul/09/john-terry-case-twitter

–          Rio Ferdinand, Manchester United player, tweeted about the trial of John Terry

  • John Terry had been accused of racial vilifying Anton Ferdinand, Rio’s brother

–          Rio has more than 3 million followers and more than 3,287 had retweeted his comments with 355 making it their favourite

–          However, Rio will most likely not face contempt charges as a John Terry’s trial is by magistrate alone

–          Therefore, the tweet fails the “substantial risk of serious prejudice or serious impediment to active proceedings” as the judiciary are expected to be impartial

–          UK Law Commission is looking at issue of contempt and the internet with a report due in 2014


A young teenager may faces contempt charges for tweeting the names of the two boys who sexually assaulted her

Title: Teen fights back with Twitter

Authors: APN New Zealand Ltd – The Daily Post (New Zealand)

Date: 23 July 2012

Location: Louisville, Kentucky, USA

Link to source: http://global.factiva.com.ezproxy.bond.edu.au/redir/default.aspx?P=sa&NS=18&AID=9BON000400&an=APNTDP0020120723e87n00017&cat=a&ep=ASI

–          A teenage girl was the victim of sexual assault after she passed out at a party

–          The attackers, two teenage boys were charged with first-degree sexual assault and misdemeanour voyeurism

–          Although the matter was in juvenile court, the girl tweeted the boys’ names in frustration with her attackers’ plea bargain

–          Her tweets read

  • “They said I can’t talk about it or I’ll be lock up”
  • “So I’m waiting for them to read this and lock me up. – justice”
  • “Protect rapist is more important than getting justice for the victim in Louisville”

–          She could face a US$ 500 find and up to 180 days in jail if found guilty of contempt of court

… then ….  Due to public pressure contempt charges against a teenager who tweeted the names of her attackers were dropped

Title: Kentucky teen Savannah spared contempt charge after naming attackers on Twitter

Authors: AP

Location: Louisville, Kentucky, USA

Link to source: http://www.cbsnews.com/8301-201_162-57478443/kentucky-teen-savannah-dietrich-spared-contempt-charge-after-naming-attackers-on-twitter/

–          On 23 July 2012 Savannah X was spared a contempt of court charge

–          Attorneys for the boys dropped their motion to charge her with contempt

–          The story attracted national and international attention after she was at risk of being found in contempt

–          In one day, an online petition on Change.org gathered 62,000 signatures in support of her actions


To respond to the Googling juror alternatives besides sub judice contempt and suppression orders should be considered

Title: Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web?

Authors: Roxanne Burd and Jacqueline Horan

Type of Source: Journal Article in Criminal Law Journal – (2012) 36 Crim LJ 103

Country: Australia

Link to source: (may need to go into Legal Online – browse Criminal Law Journal Volume 36)


–          The rise of the Googling juror has challenged the administration of criminal justice

–          Since January 2009 in the US alone, 21 trials have been overturned or ordered for re-trial because of jurors conducting online searches

–          Authors propose that the system needs to acknowledge, accept and work from a starting point that once empanelled, some jurors will conduct online searches

–          Three Australian states have legislated to penalise jurors if they conduct online searches

–          However, the authors believes that such legislation encourages defence counsel to seek out inquisitive jurors and it also infringes the rights of jurors

–          They instead propose

  • A national suppression order scheme – although difficult to implement a national scheme would avoid the Underbelly sage
  • Remedial procedures – Voir dire, sequestration of jurors, change the trial venue/delay the trial, permanent stay of proceedings, increase media sanction
  • Alternatives to trial by jury – mixed jury, trial by judge alone

–          While sub judice contempt and suppression orders have a role to play in criminal proceedings, they are ill-equipped to deal with the Googling juror


Signing an e-petition multiple times may constitute contempt of parliament

Title: Trigger-happy petition backers warned of contempt

Authors: Daniel Hurst

Date: 20 June 2012

Location: Brisbane, Australia

Link to source: http://www.brisbanetimes.com.au/queensland/triggerhappy-petition-backers-warned-of-contempt-20120619-20m07.html

–          Queensland Speaker Fiona Simpson warned that the signing of an e-petition multiple times could constitute contempt of parliament

–          The Speaker said that she saw that on an e-petition to preserve the current Civil Partnerships legislation a person’s name had appeared 17 times

–          She instructed the Clerk of the Parliament, Neil Laurie to contact the person and warn them that their actions may constitute contempt

–          Ms Simpson said “I am satisfied at this time with the action taken. However, should these persons attempt to undertake such an action again, I will refer the matter to the Ethics Committee as a breach of privilege and contempt.”

–           Contempt of Parliament can attract a fine, and if not paid, imprisonment


UK Law Commission will be examining contempt laws as it believes they are unsatisfactory in dealing with social media

Title: Contempt

Authors: UK Law Commission

Date: 2012

Location: UK

Link: http://lawcommission.justice.gov.uk/areas/contempt.htm

–          New report on contempt

–          Consultation will open winter 2012 and a final report in spring 2014

–          Different forms of contempt

  • Common law
  • Strict liability offence in Contempt of Court Act 1981

–          However, law has failed to take into account cultural and technological advances –

  • Blogs and social networking has enabled public the opportunity to publish opinions and information about imminent and on-going criminal proceedings

–          Project (report) will consider how current law on contempt can be reformed so that it takes into account and deals with the internet

  • It will also rationalise and simply criminal offences related to contempt


 Twitter may face censoring in India

Title: Indian government warns Twitter over not censoring tweets

Authors: Dara Kerr

Date: 21 August 2012

Location: India

Link: http://news.cnet.com/8301-1023_3-57497828-93/indian-government-warns-twitter-over-not-censoring-tweets/

–          After censoring Facebook and Google, the Indian government is pressuring Twitter

–          Requests for censorship follow recent violence between Muslims and indigenous communities in northeast India allegedly fuelled by social-media

–          If Twitter does not censor certain content then the In

–          In blocking Web sites and social networks the government hopes to prevent threatening messages that have incited violence

–          In January, Twitter announced that it would be willing to remove tweets on a country-by-country basis when there are local restrictions

… and …

Indian Government has defended its censorship of the Internet, including Twitter, in order to prevent civil unrest

Title: Indian Government Defends Social Media Crackdown

Authors: Gardiner Harris and Malavika Vyawahare

Date: 24 August 2012

Location: India

Link: http://india.blogs.nytimes.com/2012/08/24/indian-government-defends-social-media-crackdown/

–          Indian Government demands for censorship follows unrest in India’s northeast and riots in Mumbai

–          Some of the sites blocked have included general news sites – British newspaper The Telegraph and TV network Al Jezeera

–          Kuldeep Singh Dhatwalia, spokesman for India’s Home Ministry, said that the government has sought to remove/block 310 web pages and sites with most providers agreeing to the request

–          However, Twitter has expressed technical difficulty with finding and removing these sites

–          Harish Khare, media advisor to the Indian PM from June 2009 to January 2012 said that changing technology has put new demands on the government

–          “If someone sits in Morocco or Boston and says we should have absolute freedom, just to satisfy them we cannot have riots in our country,” he said.


Social media users with an interest in cold cases need to be cautious about the information that they post

Title: Police: Don’t use social media to post about case

Authors: Victoria Grabner

Date: 26 August 2012

Location: Henderson County, Kentucky, USA

Link: http://www.courierpress.com/news/2012/aug/26/police-dont-use-social-media-to-post-about-case/

–          It has been 17 years since Heather Teague disappeared

–          She was 23 when she was pulled by her hair into the underbrush of Newburgh Beach in Henderson County

–          On the anniversary, police have warned local residents that making false statements on social media sites Topix, Facebook and Twitter is unacceptable

–          “Unfortunately, upon investigation, these claims proved to be false. Those who make false statements about any open or cold cases on social sites need to be aware that charges may be sought for falsely reporting an incident.” (Kentucky State Police Trooper Corey King)


Be very careful about the content on a Facebook page that you create and administer

Title: Bendigo Facebook sex rater gets jail

Authors: Elise Snashall-Woodhams

Date: 22 August 2012

Location: Bendigo Magistrates Court, Victoria, AUS

Link: http://www.bendigoadvertiser.com.au/story/237376/bendigo-facebook-sex-rater-gets-jail/?cs=80

–          Two male accused set up Benders Root Rate Facebook page in June2011

–          The page encourage people to rate the sexual performance of past partners and included sexually explicit and degrading comments about girls as young as 13

–          In Bendigo Magistrates Court, Leading Senior Constable Lindsay Riley explained how a young girl, who is still under 18, had come to police with a complaint about being named and slandered on the site

–          The police followed the complaint and one defendant gave full admission about creating and administering the site

–          He was charged with and pleaded guilty to using a carriage service to offend and using an online information service to publish objectionable material

  • He also pleaded guilty to a series of unrelated traffic and theft offences

–          In sentencing, Magistrate Wright said “I need to send you and others a message”

–          Magistrate Wright sentenced him to 4 months jail on each of the two Facebook related charges as well separate charges of obtaining property by deception

  • The terms will be served concurrently for an effective sentence of 4 months

–          He will appeal the sentence (NB: watch for appeal in the Victorian County Court)


Filed under Uncategorized

Prejudging justice – lessons from the US


A riveting session at this week’s AEJMC convention in Chicago was billed “Prejudging Justice: The News Media and Prominent Criminal Trials”, featuring high profile defence attorney Andrea D. Lyon – known as the ‘angel of death row’.

Lyon won a murder acquittal last year for Casey Anthony who was accused of killing her two-year-old daughter Caylee, a trial attracting global media attention.

Her experience in that case and many others has informed her critical view of the US approach to high profile trials, which she explains in detail in a recent article in the Reynolds Courts and Media Law Journal.

Lyon has formed the view that publicity generally hurts a criminal defendant and leads to a presumption of guilt rather than innocence in the minds of jurors.

It is worth considering the views of Lyon and her fellow panelists at a time when courts in Australia and other Commonwealth jurisdictions are looking to the US example as a potential salve to their growing concerns about prejudicial Web 2.0 coverage of trials.

One view is that the only option is to move to a US system where the solution is via instruction to jurors to avoid accessing social media materials related to the case, sequestering juries or moving trials to a new location distant from the heat of publicity.

Professor W. Joseph Campbell from American University gave an insight into the lengths US journalists have been willing to go in their coverage of sensational crimes.

The antics of newspaper journalists during the 1897 ‘sausage murder’ trial in Chicago far outstrip the more recent phone hacking sins of News of the World reporters and private eyes.

As Campbell explained, journalists were so desperate to hear the deliberations of the locked jury in this case that they lowered a reporter from the Independent by rope down an air shaft from the attic of the courthouse building so he could listen to the jurors’ discussions and relay them back to his co-conspirators using a hose.

Chicago Sun-Times courts reporter Rummana Hussain explained this would never be attempted or tolerated today, given the hurdles presented to her and other media in the recent Balfour murder trial where the victims were relatives of celebrity Jennifer Hudson, prompting substantial media attention.

Hussain was left to negotiate with the judge the reporting permissions of the whole press contingent and was able to extract the privilege of using cellphones to communicate from the court to their newsrooms via text messages.

But she could not convince him to allow live tweeting from the courtroom – only from the overflow room where the proceedings were televised.

Even that arrangement was suspended for a day by the irate beak after a reporter’s phone sounded in the court after his numerous warnings to place them in silent mode. Hussain explained she even had to play attorney and present to the court an argument on why the media should be granted access to tapes played during proceedings.

American University journalism professor John C. Watson drew upon communication news framing theory to propose that journalists should frame their court and crime stories in terms of what citizens needed to know instead of merely what the public wanted to know.

“The press create a scenario in which the defendant is assumed to be guilty,” he told the audience. “The press has framed the case from the prosecutorial perspective.”

He said the judiciary was potentially the most dangerous branch of government with real potential to deprive citizens of their constitutional rights to life, liberty and their ability to pursue happiness.

“The judicial process can kill innocent people and the press are the first line of defence against that,” he said.

“Journalists have to remember they are reporting for the primary purpose of protecting the people against their government.”

He pointed to an emerging crisis with the coverage of trials on social media, and suggested the British system where there was “no reporting until afterward” might be a preferable alternative to the US approach.

But the panel’s “star witness”, Andrea Lyon, took the line that open coverage was important to the judicial process, but must be exercised responsibly.

“The prosecution already has a lot of power – there are almost no brakes on it,” she said. “There are no brakes on framing someone. The only way we’ll have brakes is through fair reporting.”

She took issue with the privacy invasion and voyeurism of coverage in sensational trials.

“I’m sick of my clients’ and victims’ terrible stories becoming fodder for cheap entertainment,” she said.

She was physically assaulted twice during the Casey Anthony trial and was angered when a major newspaper republished a blog detailing the time she would arrive at court and contemptlated “the trouble they would get in for just hitting me rather than hitting me with a bat”.

She wrote in the Reynolds Courts and Media Law Journal article: “What is troubling is the public’s fascination with this case, the need to make Anthony a villain, and how the media helped feed this mob mentality.”

“They landed, heavily, on any witness who spoke up in Anthony’s favor, making witnesses extraordinarily difficult to find and interview because everyone was afraid of the backlash from the public and the prosecution,” Lyon continued.

She told the seminar she regretted the negative influence of the television program “Law and Order” on the public perception of courts and trials, as well as the rise of “expert” court commenters who typically knew little about the specific cases they were discussing but were fodder for television commentary because of their legal training.

Social media aggravated the situation, she said, with more than 100 blogs devoted to the Casey Anthony case.

Australian, New Zealand and British policymakers could learn much from this session as they contemplate a future of more open public discussion of prominent trials in social media – even if tough restrictions on the legacy media are maintained.

This “two-speed” approach might well keep the pages of the press and the airwaves of radio and television free of prejudicial material.

But it is naive to think that prospective jurors and witnesses will not venture onto blogs, Facebook and Twitter to get every salacious detail on a celebrity accused in the next big Whodunnit.

Short of effective controls across jurisdictions in cyberspace, which appears unlikely, it seems the integrity of the jury system will rely on effective instructions to jurors and better justice education for the broader citizenry.

© 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.


Filed under Uncategorized

Queensland’s biggest publisher – the police – try to calm the FB lynch mob


The resources of the Queensland Police Service Facebook fan page were stretched over the past 24 hours to cope with the public response to their announcement of an arrest of a suspect in one of Brisbane’s most compelling ‘whodunnit’ murder mysteries.

Mainstream and social media speculation about the case has been rampant since 43-year-old Allison Baden-Clay went missing on April 23. Her husband Gerard appeared in court today charged with her murder.

As I have blogged previously, the Queensland Police Service has a highly successful Facebook page which established the bulk of its 289,500 fan base during the devastating Brisbane floods in January last year. It proved an excellent community communication tool during the disaster and since then as a crime detection aid as the public volunteer leads on unsolved crimes and public safety.

But the challenge comes when Police Media announce on their Facebook page the apprehension of a suspect in a high profile case.

The problem with Facebook fan pages is that you must have the ‘comment’ function turned completely ‘on’ or ‘off’ – so the best the police can do is monitor the feed and remove offensive or prejudicial material after it has been posted.

That might be fine during an uneventful day when the police social media team can keep on top of the message flow – but when an arrest has been made in an emotion-charged crime like a murder or a child sex attack many fans want to ‘vent’.

That’s what happened with the arrest of a suspect in the murder of Sunshine Coast teenager Daniel Morcombe last August.

It happened again last night and today as, within 21 hours, more than 500 fans commented on the Police Media announcement that Baden-Clay had been charged with his wife’s murder and more than 1,500 ‘liked’ the announcement. Those 506 comments were the ones that survived the post-publication moderation process where officers in the social media unit trawl through the latest posts to delete the inappropriate ones.

The law of sub judice in Australia dictates that nothing can be published that might prejudice the trial of an accused after they have been arrested or charged. That includes any assumption of guilt (or even innocence), evidentiary material, theories about the crime, witness statements, prior convictions or character material about the accused. It even bans visual identification of the accused if that might be an issue in court. In a murder trial it usually is.

The penalty can be a criminal conviction on your record, a stiff fine and sometimes even a jail term for contempt of court.

Once the accused has appeared in court, journalists covering the matter are protected from both contempt and defamation action if they write a ‘fair and accurate’ report of the hearing, sticking to material stated in open court in the presence of the jury – if there is one.

It’s hard enough for reporters to get their heads around these rules – let alone the Facebook fans posting their theories on a murder to the police Facebook page.

Even some of the posts that have survived the police editing process to date push the boundaries of acceptable commentary on a pending case.

One stands out: “Ann Gray: Took long enough. It was obvious that he did it. Hope he rots in jail.”

That was six hours after the announcement, and obviously the moderators were running short on patience with their ‘fans’. The moderators took to calling those speculating on the crime “Facebook detectives”. One replied to Ms Gray: “Queensland Police Service: Ann Gray *sigh* Really? The third detective we have commenting on here that does not comprehend what it takes? I suggest you don’t pass judgement on something that you know nothing about!”, and then “Queensland Police Service: I am not sure ‘because it is obvious’ is suffice (sic) evidence in court, Facebook detectives. It is a matter before the courts. Enough!”

They also tried with a standard warning to commenters that was pasted into the discussion on several occasions: “Facebookers who are just joining this post, please do not speculate on this matter. Any posts which do are deleted and those who continue will be banned from our FB page. Please respect our rules. Thanks.”

One fan – Bec Mooney – suggested the police disable their comments function if they were so concerned about offensive and prejudicial material appearing, to which the police replied: “Queensland Police Service Bec Mooney – WE CAN’T DISABLE COMMENTS. Take that issue to Facebook. Even if we could, it would contradict the idea of social media.”

Do I sense a little attitude here? Clearly, the officers were getting tired and frustrated in the midst of the onslaught of the ‘lynch mob’, but surely the correspondent Ms Mooney had a valid point.

As I blogged earlier this week, Australian courts have ruled that the hosts of such fan pages are legally responsible for the comments of others on their sites and must act within a reasonable time to remove illegal or actionable material.

But they haven’t yet had to rule on a serious sub judice matter – so the key question is: How long is it reasonable for a prejudicial statement like the ‘obvious he did it’ and ‘rot in hell’ comment to remain on a public law enforcement agency’s Facebook page? It had been there 15 hours when we took our screen shot and may well still be there when you are reading this.

These rules apply to the mainstream media, and the police fan page has been so successful that it is now Queensland’s biggest publisher on some counts. Its fan base outstrips the Courier-Mail’s circulation, which peaks at 255,000 on a Saturday. And that newspaper – Queensland’s biggest – has fewer than 20,000 fans on its Facebook page. The ABC has just 91,000 nationally.

They aren’t allowed to publish this kind of prejudicial material.

Surely the police have even less excuse for hosting such comments even for a moment. The Queensland Police Service is the arresting and prosecuting authority whose job is to preserve the integrity of the justice process.

I fear it will not be long before a savvy defence lawyer seizes the opportunity to use such prejudicial commentary as grounds for appeal – perhaps resulting in a trial being aborted at great public expense or even a verdict quashed. That would be the exact opposite of what most of these commenters and the police would want.

Social media is clearly a superb resource for police and other agencies to use to connect with their communities and to build public trust. But let’s get sensible with this.

Instead of boasting to the whole world about a high profile arrest like this one, surely the police can hold back and let the mainstream media publish their announcement just as they have done for decades. The message would still get out and at least they would not then have the headache of the avalanche of comments in response to this kind of PR announcement.

The police argue that disabling comments might “contradict the idea of social media”, but surely their hosting of prejudicial material – even for a short time – contradicts the valued right to a fair trial of those they have arrested.  

© 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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The liability time bomb of comments on your FB fan page #medialaw


What if someone posted a comment to your Facebook fan page at 5.15pm on a Friday alleging a leading businessman in your community was a paedophile?

How long would it be before someone noticed it? Immediately? Perhaps 9am Monday?

I put this question to a group of suburban newspaper journalists recently, expecting most would not be checking their newspapers’ Facebook pages over the weekend.

I guessed right, but I was amazed when one replied that such a comment would have remained there for the three months since he last looked at his company’s fan page.

Facebook fan pages are a legal time bomb for corporations, particularly in Australia where the courts have yet to rule definitively on the owner’s liability for the comments of others.

In an earlier blog I looked more closely at the decision of Federal Court Justice Ray Finkelstein in the Allergy Pathways case last year.

Justice Finkelstein’s ruled that in a consumer law case a company would have to take reasonable steps to remove misleading and deceptive comments of others from their Facebook fan pages (and Twitter feeds) the instant they had been brought to their attention.

A more recent Federal Court case examined moderated comments on a newspaper’s website in the context of a racial discrimination claim.

In Clarke v. Nationwide News, Justice Michael Barker ordered the publishers of the Perth Now website to pay $12,000 to the mother of three indigenous boys who died after crashing a stolen car and to take down the racist comments about them from readers that had triggered the claim.

Central to the case was the fact that the newspaper employed an experienced journalist to moderate the comments on its site, meaning that it had taken on responsibility as ‘publisher’ of the comments. (The newspaper managing editor’s explanation of the moderation system at paras 170-178 makes for interesting reading too).

Justice Barker distinguished situations where the editors actively moderated readers’ comments from those where they did not (para 110), but restricted that distinction to the operation of s. 18C of the Racial Discrimination Act, which requires the “offensive behavior” to have been “because of the race, colour or national or ethnic origin”.

Unmoderated comments fall outside this because it cannot be proven the publisher shares the commenter’s racist motivation unless the publisher refuses to take down the comments once this has been brought to their attention.

Justice Barker stated:

“If the respondent publishes a comment which itself offends s18C, where the respondent has “moderated” the comment through a vetting process, for example, in order not to offend the general law (or to meet other media standards), then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it.

“In such circumstances, it will be no defence for the respondent media outlet to say, ‘But we only published what the reader sent us’.”

Some might read this to mean that it is safer to run all comments in an unmoderated form – just like a Facebook ‘fan’ page is structured – then take them down if you get a complaint.

Such an approach might sit okay with these decisions in consumer or racial discrimination law, but what happens when the time bomb lands – a shocking defamation imputation, a heinous allegation damaging a forthcoming trial, or the breach of a court order or publication restriction like the naming of a rape victim?

Defamation and contempt are matters of ‘strict liability’, where you might be liable even if you are ignorant of the defamatory or contemptuous content you are publishing. The only intent required is that you intended to publish your publication or were ‘reckless’ in the publishing of the material. And neither has offered protection for publishers providing a forum for the comments of others.

Which brings us back to the question at the very start. If the Federal Court has ruled you should remove unmoderated material breaching consumer or race law within a reasonable time of becoming aware of it, what will courts deem a ‘reasonable time’ for a serious allegation of child molestation about a prominent citizen to remain on a publisher’s Facebook fan page?

If the allegation were about me, I certainly wouldn’t want it remaining there over a weekend. Or even five minutes. Any period of time would be unreasonable for such a dreadful slur.

The High Court established 10 years ago in the Gutnick case that a publisher is responsible for defamation wherever their material is downloaded. As The Age revealed in 2010, a blogger using the pseudonym ‘witch’ launched a series of attacks on a stockmarket forum about technology security company Datamotion Asia Pacific Ltd and its Perth-based chairman and managing director, Ronald Moir. A court ordered the forum host HotCopper to hand over the blogger’s details which could only be traced to an interstate escort service. But private investigation by the plaintiff’s law firm eventually found the true author of the postings on the other side of the nation who was then hit with a $30,000 defamation settlement.

And what if it is a litany of allegations about the accused in an upcoming criminal trial? I have blogged previously about the awkward position the Queensland Police face with their very successful Facebook fan page when citizens comment prejudicially about the arrest of an accused in a criminal case. No matter how well those fan page comments are moderated by police media personnel, they could never keep pace with the prejudicial avalanche of material posted on the arrest of a suspect in a high profile paedophilia case.

That leads to the awkward situation of the key prosecutor of a crime hosting – albeit temporarily – sub judice material on their own site. It can’t be long before defence lawyers use this as a reason to quash a conviction.

The situation is different in many other countries – particularly in the US where s. 230 of the Communication Decency Act gives full protection to ‘interactive computer services’, even protecting blog hosts from liability for comments by users.

Much has changed in the three decades since I had my first letter to the editor published by the Sydney Morning Herald as an 18-year-old student.

I can clearly recall that newspaper’s letters editor phoning me in my suburban Sydney home to check that I really was the author of the letter and that I agreed with his minor edits.  No doubt he then initialled the relevant columns in the official letters log – the standard practice that continues in some newspaper newsrooms today.

But all that caution has been abandoned in the race for relevance in the digital and Web 2.0 eras.

First, it was news organisations’ websites allowing live comments from readers – still largely moderated. For a while, most insisted on identification details from their correspondents.

Next came their publication in hard copy of SMS messages received in response to their stories. My local newspaper – the Gold Coast Bulletin – sometimes publishes several pages of such short texts from readers using witty pseudonyms.

And now we have the Facebook fan pages, where the technology does not allow the pre-moderation of the comments of others. You need to have that facility switched completely ‘on’ or ‘off’ – and it defeats the purpose of engaging with readers for a media organisation to turn off the debate. I can post a Facebook comment from an Internet café under the name ‘Poison Pen’ and it may well be vetted by nobody.

The whole issue is symptomatic of the social media challenges facing both the traditional media and the courts.

Meanwhile, expect to wait a while to see your comments to this blog published. I’ve elected for full moderation of all comments, and have already rejected a couple that seem to leave me exposed as publisher. You can’t be too cautious now, can you?

© 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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Celebrities’ social media strife a lesson for us all


[First published in the Gold Coast Bulletin, Monday, June 4, 2012, p. 33]

Every week we hear about yet another celebrity finding themselves on the wrong side of the law because of their misuse of social media.

We’ve had comedian Catherine Deveny sparking a defamation threat against Twitter by Catholic Archbishop George Pell, writer Marieke Hardy paying a man damages over a false cyberstalking allegation on Twitter, and celebrities threatened with consumer litigation over their sponsored plugs for companies.

In my book ‘Blogging and Tweeting Without Getting Sued’  (Allen & Unwin, 2012) I tell the story of fashion designer Dawn Simorangkir who was asked to create some clothing for rock diva Courtney Love.

Love was furious when Simorangkir sent her an invoice for her work under the Boudoir Queen label. The troubled star fired off scores of blog and Twitter rants, accusing the designer of being a thief, burglar, felon, drug addict, prostitute, embezzler, cocaine dealer and an unfit mother.

Love had to pay her $430,000 in defamation damages and make a grovelling apology as part of a mediated court settlement, only to find her former lawyers had filed suit over other tweets where she had claimed they had taken a bribe.

It is not just celebrities who find themselves in legal strife on social media. Brisbane ‘Internet troll’ Bradley Paul Hampson served 220 days in jail last year for plastering obscene images and comments on Facebook tribute pages dedicated to the memory of two children who had died in tragic circumstances. Hampson had already been convicted of a similar offence three years earlier.

While a newspaper publisher can pulp an offensive edition before the trucks left the factory, as a blogger or micro-blogger you have to live with the consequences of your digital publishing errors.

Yes, you can remove your blog, tweet or Facebook status within seconds of posting it, and request that it be taken down from search engines – but you can never be sure someone hasn’t captured, downloaded, and forwarded it in the meantime.

This permanent quality of new media does not mix well with an online writer’s impulsiveness, carelessness, anger or substance abuse.

There is an old saying: ‘Doctors bury their mistakes. Lawyers jail theirs. But journalists publish theirs for all the world to see’. That can be applied to anyone writing online today.

At least in bygone times these mistakes would gradually fade from memory. While they might linger in the yellowing editions of newspapers in library archives, it would take a keen researcher to find them several years later. Now your offensive or erroneous writing is only a Google search away for anyone motivated to look.

If you have posted something you regret, you should act to withdraw any dubious material as soon as possible. If others choose to forward or republish it, it has hopefully become their problem rather than yours.

Whether you have millions of Twitter followers, hundreds of friends on Facebook or just a single figure readership for your Pinterest postings on tapestries, in the eyes of the law you are now a ‘publisher’.

That means you have to comply with those same communication laws that big media outlets have been forced to obey since Gutenberg invented the printing press 575 years ago. The big difference is that for most of that time publishers only had to worry about the laws in their own country.

You have hundreds of legal systems or ‘jurisdictions’ to consider because the courts have decided you are liable wherever your material is downloaded.

That might be especially dangerous if you plan to visit a country like Thailand, Vietnam or Fiji – popular tourist spots with far less tolerance of the free and vigorous expression we allow here.

© 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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Social media, you and the law: Transcript of the @lawreportrn interview with @journlaw & @julieposetti


Transcript of the @lawreportrn interview with @journlaw and @julieposetti on May 22, 2012.

To listen, go to the ABC Radio National Law Report website for podcast download.

Anita Barraud: you’re probably all well acquainted with that advice that you shouldn’t put anything on the internet that you wouldn’t want your employer or your mother to see. There are those posts that can lead you to missing out on that great job, but some might even land you in court. James Pattison reports on the legal dangers of your online life.

James Pattison: Have you got a phone in your pocket? Or what about a laptop in your bag? Well, if you use social media, you’re now a publisher, whether you know it or not. Mark Pearson is professor of journalism at Bond University. He’s written a book that’s very aptly named Blogging and Tweeting Without Getting Sued.

Mark Pearson: The book stemmed from 30 years of looking at the law, as it relates to journalists and journalism students, and coming to the realisation a couple of years ago that of course this whole development in social media meant that everybody out there using it is now a publisher, just like journalists have been, and therefore come under the laws of both media law and many others that might apply to citizens who publish things.

James Pattison: And trying to be funny online can land you in some serious trouble.

Mark Pearson: And only last year we had a British gentleman who posted a witty tweet, or what he thought was a witty tweet, about blowing up an airport, and he was just expressing it as satire, he said, because he was frustrated that snow had stopped flights from this particular airport, but unfortunately national security and police agencies don’t always have a sense of humour, and they certainly didn’t in that case, and his house was raided, he was arrested, he was charged with national security offence and he finished up being released, of course, but he suffered a whole lot through the process and spent some time in the big house, at least temporarily, as a result of it. Something none of us need in our lives.

James Pattison: There’s been a lot of changes with media that’s available to us as individuals; a student on their mobile phone posting witty tweets about the lecturer at the front of their lecture theatre, so we now have this instant public communication. Have the laws changed to cover the instant nature of this communication?

Mark Pearson: The basic laws are pretty much the same as they applied to journalists and media organisations in the past. So, your fundamental law of defamation, contempt, confidentiality, all of these areas, you know, the core law is still the same, it’s just that some circumstances have changed with new media and social media.

James Pattison: If the core law is still the same, if the underlying principles are still the same, how’s the adaptation been? Is it exposing perhaps that there’s some principles upon which our legal system is founded, that don’t quite weigh up in 2012?

Mark Pearson: Indeed, it is already demonstrating that, and when it comes to social media law decisions, well, it’s problematic. For example, only last year we had the retired judge Finkelstein presiding over a consumer law case known as the Allergy Pathways case where a company had been directed not to make certain misleading comments about its health treatments, and what had happened was that some of these claims had continued to be made on their website and some by Facebook fans on their Facebook page, and some in a Twitter feed. So Justice Finkelstein was placed with a situation where he had to rule whether the fact that they…some of these comments had been hosted on the company’s Facebook fan page, meant that they were in breach of the order. He held that they were, and he found them in contempt, because of that breach, they were fined. He also made the interesting direction that they should remove all such comments from their Twitter page, whatever a Twitter page is. I don’t know what a Twitter page is, but nevertheless Justice Finkelstein made that direction in that case, so all I’m saying is that judges themselves are still trying to come to grips with social media and its implications, both in the court system and in particular cases where old law should apply, but it has to be adapted to these new technological circumstances.

James Pattison: Professor Mark Pearson. Julie Posetti is a journalist and assistant professor at the University of Canberra. She’s writing a PhD about the impact of social media on professional journalism. Posetti has firsthand knowledge of the troubles that you may encounter when using online platforms like Twitter. A couple of years ago she found herself at the centre of a legal stoush involving the editor of The Australian newspaper, Chris Mitchell.

Julie Posetti: This whole episode, which eventually became the subject of large headlines and news tickers and coverage ad nauseam in the mainstream media, at least as far as The Australian was concerned, started with the live tweeting of a conference about journalism which was being held at the University of Technology in Sydney in late 2010. It was a particularly newsworthy session because it involved the launching of brand new research into the global reporting of the environment and climate change, which was being released in the context of this particular session, and one of the speakers was Asa Wahlquist, who, and I had heard from others, had left The Australian in difficult circumstances, and she was talking about her experience of trying to report climate change and environmental issues generally within the remit of being the rural reporter for The Australian. She was a very…highly respected, very experienced award-winning journalist, so a very trusted source, and somebody who was exceptionally media literate. So, in my mind there were no impediments to reporting what she was saying, and other than to think about the context of the event, which was a public event, there were many journalists present, so there I was, live reporting what Asa Wahlquist was saying. She had some very newsworthy, very interesting, very challenging things to say about what it was like to work at The Australian under its current editorship, and she made comments that were eminently newsworthy, and I felt were appropriate to distribute to the people who were following me on Twitter, and as I live tweeted, I had a couple of people who saw those comments who were at the conference who redistributed them via process which is called re-tweeting, and people who follow me who were not at the conference did the same. So they redistributed those comments, about four or five people I think redistributed those 140 character tweets to their own audiences, so…

James Pattison: What came about as a result of publishing these comments on Twitter?

Julie Posetti: Well, as I understand it somebody at The Australian had been monitoring my tweets, and within I think it was 12 hours of those tweets, 12 to 24 hours of those tweets being published I was sitting on a panel, and there was a live Twitter feed running behind me, and people started gasping and pointing, and somebody sent me a direct message on Twitter on my phone, so I’m sitting at this panel looking at an audience that seemed to be erupting inexplicably, and it became evident that they were reacting to a headline that had been posted by The Australian via their Twitter feed which was being rapidly redistributed which stated that Chris Mitchell, the editor-in-chief of The Australian would sue me, named me, Julie Posetti, as though I was some sort of household name, and that created an immediate explosion, and of course triggered all of the usual legal ramifications. So I had to seek legal advice from my employer, because I was there in my professional capacity as an academic. That resulted in me being effectively silenced because I couldn’t engage in any public discussion while legal advice was being sought, particularly in light of it being a threat to sue for liable or defamation. That’s where it began, and it got a life of its own on social media, it became know as Twitdef, what it came down to was, in any kind of defamation case, in very traditional terms, whether or not there was a defence against defamation, and the protection that the university, myself and our lawyers were relying on was that this was a fair and accurate report of public proceedings, which is a very familiar defence to journalists. So it was quite a tumultuous experience, but one that demonstrated to me both the power and the risk of an active online life.

James Pattison: Julie Posetti, and 18 months later nothing further has come of the threatened legal action. Posetti posted her online comments on her personal Twitter account under her own name, but what if you don’t? There are lots of anonymous internet users who tweet, blog and post comments under a pseudonym. Is this enough of a protection from a possible lawsuit? Mark Pearson.

Mark Pearson: Well, the law is still undecided in that area. Certainly in criminal cases there’s a very strong argument, but we have yet to get enough decisions to really base any real judgement on there, but even if the courts are reluctant, because of IP addresses and so on, the lawyers and the discovery process can often actually find the suspect as it were, or the defendant in a civil action. It happened in Australia only a couple of years ago, where an anonymous poison penner in Western Australia was using the pseudonym Witch to attack a technology security company and its chairman. Well, the court ordered the forum host Hot Copper to hand over the blogger’s details, and at first the details could only be tracked to an interstate escort service, but the law firm conducted its own private investigation and eventually found the true author of the postings and then that author was hit with a $30,000 damages verdict.

James Pattison: So, let’s say that you’re living in Australia, you post a comment albeit witty about somebody in the United States.

Mark Pearson: You raise a really interesting point, and that is to do with the whole area of jurisdiction, and that’s why I’ve, you know, very boldly targeted the book internationally, because really it’s silly talking about the laws of just one jurisdiction when social media defies all jurisdictional boundaries. My own blog, Journlaw, journlaw.com, is…doesn’t have a huge following, it doesn’t have a huge readership, on any day there might be 50 or 60 people looking at it, but on any day, while 90 per cent of them will be looking at it from Australia, there are these outliers. There will be someone who’s accessed it from Thailand, someone else from Finland, someone else from Kuwait, and what it means is that if I have written something on my blog, which thankfully normally wouldn’t be offensive, but if for example I’d insulted the king in Thailand or perhaps written something blasphemous about Mohammed in Kuwait, then if I ever chose to travel to that place, I could face consequences, and as we learnt a couple of years ago with a Melbourne man who breached the Thai lese-majesty laws, he actually spent six months in one of the so-called Bangkok Hiltons, suffering away with all of the other prisoners, because he had dared to write something about the royal family there.

James Pattison: Julie Posetti, we are sort of caught up in the social aspect of social media and not the media aspect of social media; that what was once a social comment to make, a comment to make amongst friends in a social setting has now become broadcast, and that we do that every single day without realising the consequences of it. What does this present for young people who believe that they’re just having a bit of fun, and fair enough, just wanting to have a laugh with some friends, but are publishing these things in a public forum?

Julie Posetti: When we have situations where people who are very new to these mediums find themselves saying something that they might say in their lounge room but publishing it broadly, and it might be, you know, terribly defamatory or terribly contemptuous, and find themselves at the end of a threat from a big corporation or a powerful individual, what is the law going to do with that? I think these are all, you know, very interesting questions, and many of these cases have settled out of court, and case law hasn’t necessarily caught up, and it may not catch up and it may not need to catch up, but in the intervening period we have a need, I think, for a lot more communication about these issues and a lot more education about these issues, for the general public in particular.

I have a rule that I share with anybody who I’m teaching or training with regards to social media, which I borrow from my broadcasting experience which goes to the mute button and the capacity for a seven-second delay to exist, so if anything seems to you to be slightly, even slightly risky, don’t hit that send button on Twitter or Facebook, step back for seven seconds, then go and have another look at it. And if you’re still angry, if what you’re doing is about to post in anger or contempt, then step back for another seven seconds.

Anita Barraud: Julie Posetti and Mark Pearson’s book Blogging and Tweeting Without Getting Sued is published by Allen & Unwin. James Pattison with that report, and speaking of social media, on Friday, how Twitter is affecting sports journalism. Some reporters love it, some hate it, it’s certainly causing some conflict in the competitive world of British sports journalists. That’s coming up on the Media Report with Richard Aedy, Friday at 5:30 pm. That’s it for the program this week, thanks to producer James Pattison and to technical producer Angie Grant, and I’m Anita Barraud.


Mark Pearson
Professor of journalism at Bond University and author of Blogging & Tweeting Without Getting Sued
Julie Posetti
Journalist and assistant professor at the University of Canberra (@JuliePosetti)


Title: Blogging & Tweeting Without Getting Sued: a global guide to the law for anyone writing online

Author: Professor Mark Pearson
Publisher: Allen & Unwin
Released: 01 Apr 2012
Description: Every time you blog or tweet you may be subject to the laws of more than 200 jurisdictions. As more than a few bloggers or tweeters have discovered, you can be sued in your own country, or arrested in a foreign airport as you’re heading off on vacation – just for writing something that wouldn’t raise an eyebrow if you said it in a bar or a cafe.
© 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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