Tag Archives: free speech

Memo #RSF Paris: Australian media freedom at risk from anti-terror laws

By MARK PEARSON

[Research assistance from media freedom intern Jasmine Lincoln]

Memo to: Benjamin Ismail, Bureau Asie-Pacifique, Reporters sans frontiers (RSF – Reporters Without Borders), Paris.

From: Mark Pearson, RSF correspondent, Australia

RSFlogo-enI regret to advise that several events and policy proposals have impacted negatively on the state of media freedom in Australia.

They are highly likely to threaten Australia’s ranking on your forthcoming RSF World Press Freedom Index.

A raft of new laws and policies proposed by the conservative Abbott Government has placed its stamp on media law and free and open public commentary.

The initiatives follow in the steps of the prior Labor Government that had proposed a new media regulatory regime with potentially crippling obligations under the Privacy Act.

In the course of its first year in office the Abbott Government has:

– imposed a media blackout on vital information on the important human rights issue of the fate of asylum seekers;

– initiated major budget cuts on the publicly funded ABC;

– used anti-terror laws to win a ‘super injunction’ on court proceedings that might damage its international relations (see your earlier RSF release on this, which I cannot legally reproduce here for fear of a contempt charge);

– moved to stop not-for-profits advocating against government policy in their service agreements, meaning they lose funding if they criticise the government;

– slated the Office of the Information Commissioner for abolition, promising tardy FOI appeals;

– proposed the taxing of telcos to pay for its new surveillance measures, potentially a modern version of licensing the press;

– proposed ramped up surveillance powers of national security agencies and banning reporting of security operations (See Prime Minister’s August 5 release here);

– proposed increased jail terms for leaks about security matters (you issued a release on July 22 the impact for whistleblowers);

– mooted a new gag on ‘incitement to terrorism’;

– proposed new laws reversing the onus of proof about the purpose of their journey for anyone, including journalists, travelling to Syria or Iraq.

Major media groups have expressed their alarm at the national security proposals in a joint submission stating that the new surveillance powers and measures against whistleblowers would represent an affront to a free press.

Over the same period the judiciary has presided over the jailing of a journalist for breaching a suppression order, the conviction of a blogger for another breach, and several instances of journalists facing contempt charges over refusal to reveal their sources. There have also been numerous suppression orders issued, including this one over a Victorian gangland trial.

Other disturbing signs have been actions by police and departmental chiefs to intimidate journalists and media outlets.

  • The Australian Federal Police raided the Seven Network headquarters in Sydney in February, purportedly in search of evidence of chequebook journalism, triggering an official apology this week.
  • Defence Chief General David Hurley wrote to newly elected Palmer United Party Senator Jacqui Lambie in March, warning her not to use the media to criticise the military.
  • Freelance journalist Asher Wolf received a threatening letter from the secretary for the Department of Immigration and Border Protection (DIBP) Martin Bowles following her co-written article for the Guardian Australia on February  19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details.’ The public service mandarin’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’ and demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices. See the letter here: WolfDIBP to The Guardian – A Wolf. The Sydney Morning Herald later reported that the DIBP was hiring private contractors to trawl social media and order pro-asylum seeker activists to remove their protesting posts.

I am sure you will agree that these developments are not what we would expect to be unfolding in a Western democracy like Australia where media freedom has previously been at a level respected by the international community.

Kind regards,

Mark Pearson (@journlaw)

—–

Sources for further detail on the national security reforms:

(6 August, 2014). Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014 Submission. Retrieved from: file:///C:/Users/jasmine/Downloads/17.%20Joint%20media%20organisations%20(1).pdf.

Criminal Code Act 1995 (Qld) s. 5.4 (Austl.).

Grubb, B. (19 August, 2014). Anti-leak spy laws will only target ‘reckless’ journalists: Attorney-General’s office. Retrieved from: http://www.smh.com.au/federal-politics/political-news/antileak-spy-laws-will-only-target-reckless-journalists-attorneygenerals-office-20140818-1059c7.html.

Grubb, B. (30 July, 2014). Edward Snowden’s lawyer blasts Australian law that would jail journalists reporting on spy leaks. Retrieved from: http://www.smh.com.au/digital-life/consumer-security/edward-snowdens-lawyer-blasts-australian-law-that-would-jail-journalists-reporting-on-spy-leaks-20140730-zyn95.html.

Hopewell, L. (17 July, 2014). New Aussie Security Laws Would Jail Journalists for Reporting on Snowden Style-Leaks. Retrieved from: http://www.gizmodo.com.au/2014/07/new-aussie-security-laws-would-jail-journalists-for-reporting-on-snowden-style-leaks/.

Murphy, K. (17 August, 2014). David Leyonhjelm believes security changes restrict ordinary Australians. Retrieved from: http://www.theguardian.com/world/2014/aug/17/david-leyonhjelm-security-changes-restrict-australians.

Parliament of Australia (15 August, 2014). Parliamentary Joint Committee on Intelligence and Security, 15/08/2014, National Security Legislation Amendment Bill (No. 1) 2014. Retrieved from: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=COMMITTEES;id=committees%2Fcommjnt%2F2066f963-ee87-4000-9816-ebc418b47eb4%2F0002;orderBy=priority,doc_date-rev;query=Dataset%3AcomJoint;rec=0;resCount=Default.

The Greens (1 August, 2014). Brandis presumption of terror guilt could trap journalists, aid workers. Retrieved from: http://greens.org.au/node/5617.

 

© Mark Pearson 2014

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.

4 Comments

Filed under free expression, national security, Press freedom, terrorism, Uncategorized

Sub judice – time to brush up on your Latin

By MARK PEARSON

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.

6 Comments

Filed under Uncategorized

SHIELD LAWS update – an experiment in collaborative scholarship

By MARK PEARSON

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…”

Links:

‘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

SBS.com.au

‘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.

 

Links:

“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

1 Comment

Filed under Uncategorized

DEFAMATION update – an experiment in collaborative scholarship

By MARK PEARSON

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.”

Links:

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.

Links:

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”

http://glj.com.au.ezproxy.bond.edu.au/files/dtroguesmco.pdf

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

Summary:

  • 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

http://www.theaustralian.com.au/sport/cricket/chris-cairns-wins-libel-action-against-lalit-modi/story-e6frg7rx-1226310713029

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

Summary:

  • 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

Summary:

  • 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

Summary:

  • 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

Summary:

  • 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

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASCFC/2012/99.html?stem=0&synonyms=0&query=defamation

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

Summary:

  • 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)

6 Comments

Filed under Uncategorized

CONTEMPT update – experiment in collaborative scholarship

By MARK PEARSON

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

Link:

–          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

Link:http://www.nypost.com/p/news/business/twitter_in_contempt_da_IhsRlQ7Cp93GAZdLRvpMhJ

–          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:

  • THE JUDGMENT IS NOT TO BE PUBLISHED (INCLUDING ANY COMMENTARY, SUMMARY OR DESCRIPTION OF IT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE OR OTHERWISE DISSEMINATED TO THE PUBLIC UNTIL FINAL DISPOSITION OF TRIAL OR FURTHER ORDER OF THE COURT. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

–          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)

http://legalonline.thomson.com.au/jour/resultDetailed.jsp?curRequestedHref=journals/CRIMLJ/volumes/36&contentSourceHref=journals/CRIMLJ/volumes/36/parts/2/articles/103/fulltext&tocType=fullText&hitListPageContext=http://legalonline.thomson.com.au/jour/resultSummary.jsp?tocType=fullText___curRequestedHref=journals%2FCRIMLJ%2Fvolumes%2F36___start=21&searchId=2&hit=21&hits=25&articleType=fulltext&freeText=&titleCode=Ptrtaftit2chtbjbcitwww

–          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)

2 Comments

Filed under Uncategorized

Prejudging justice – lessons from the US

By MARK PEARSON

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.

2 Comments

Filed under Uncategorized

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

By MARK PEARSON

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.

3 Comments

Filed under Uncategorized