Tag Archives: police media

The journalist and the police source – learning from an unfortunate case


The sad case of a Victorian detective who revealed operational information to a newspaper journalist ended this month when senior constable Simon Artz was given a four month suspended sentence for ‘unauthorised disclosure of information’.

The sobering 10 pages of sentencing remarks of Victorian County Court Judge Mark Taft on February 5 should be read by every journalism student, journalist and serious blogger because they are testimony to one of the most serious consequences a whistleblower can face – loss of their job and mental anguish.

The ethical rights and wrongs of the Artz episode have been contested very publicly with the Australian newspaper attacking journalism educator and Crikey correspondent Margaret Simons, prompting her point by point response to the allegations and Media Watch host Jonathan Holmes blogging in her defence.

Golden Quill-winning journalist Cameron Stewart has detailed the events surrounding his source releasing him from the usual journalistic ethical obligation of confidentiality (all handled by the police, without Stewart’s knowledge).

Different versions of conversations between the AFP and The Australian about whether the newspaper would publish a report about the Operation Neath raid on a terrorist cell have been detailed. Crikey published the affidavit by AFP Commissioner Tony Negus about his phone conversation with former editor of the Oz, Paul Whittaker, which claimed Whittaker was somehow weighing up how many lives might be lost in a terrorist attack as a determining factor on whether he should publish the story. Fascinating reading, but the veracity of the Commissioner’s recollection of that conversation was eroded somewhat by him getting Whittaker’s name wrong in his affidavit – calling him ‘Neil’ instead of ‘Paul’.

The issue is clouded by ongoing animosities between The Australian and Simons, between The Australian and former Victorian Police commissioner Simon Overland, and between the Victorian Police and the AFP.

I do not have enough facts to inquire deeply into the veracity of all the contested facts, although I hope to do explore the case study further for our next edition of The Journalist’s Guide to Media Law.

Rather, I suggest the following questions and discussion points for a workshop on the law and ethics of confidential sources, using this episode as a wonderfully suitable case study. If you are a student or journalist, you are welcome to think through the questions and post any comments or queries at the end of this blog. If you are a journalism academic or in-house trainer, you might wish to work through these questions and the associated documents when exploring the contentious issue of the relationship between journalists and their sources.

  1. Read the Cameron Stewart page 1 story ‘Army base terror plot foiled’ from The Australian on Tuesday, August 4, 2009 at this link.  Discuss the newsworthy elements of this story and the various matters of public interest at stake.
  2. Let’s go to the Judge Taft’s remarks when sentencing detective Simon Artz on February 5, 2013 and explore the journalist-source relationship.  Artz was a respected detective in the Security Intelligence Group of the Victoria Police. Stewart was a highly regarded investigative reporter for the national daily newspaper. Let’s focus in on this relationship and answer the following questions:
    • Explore the likely motivations at play – for the detective and the journalist
    • What did we learn from the judge’s remarks about the dealings between the detective and the journalist? How might a journalist handle the discussions with such an inside source and the potential risks facing them?
    • What, if any, onus is on the journalist to make the source aware of the potential consequences of discussing sensitive information?
    • Consider the information being revealed. Was Artz the classic ‘whistleblower’ as we have come to use that term? Why or why not?
    • Should journalists handle ‘vulnerable’ sources differently in such situations? If so, who might ‘vulnerable’ sources be, and would Artz have fallen into that category?
    • Considering the journalist’s obligation of confidentiality to a source, what discussions or negotiations over the terms of that confidentiality should happen at this early stage?
    • What measures can the journalist and source take in this modern era of geolocational tracking technology and telecommunications call tracing to preserve the anonymity of an inside source?
    • Reading Stewart’s account, he was unknowingly ‘released’ from the obligation of confidentiality by his source without even having had the opportunity to discuss it with Artz in person. If this had not happened, what were the possible outcomes for Stewart in an upcoming court case? How might a ‘shield law’ like s126H of the Evidence Act operate if Artz was ordered to reveal his source? (Remember, however, this case was tried under Victorian law, not Australian Commonwealth law.)
  3. Let’s now consider the early release of the copies of The Australian newspaper, detailed on page 2 of the court transcript, and in the Media Watch account of the episode.
    • The Australian
    • had been sitting on the story for some days and had not yet released it because of police concern over its implications. Why would they have been so keen to publish it on the morning of the raid?

    • What elements of legitimate public interest can you propose for its release on the morning of the raid?
    • What public interest considerations would have weighed against its release at that time?
    • If the story had not been released, and the accused had appeared in court, what impact might sub judice contempt restrictions have had on the reportage of the story?
  4. You can see from the Federal Court documents that The Australian and its editor Paul Whittaker launched a court action to prevent the release of a report by police agencies into the role of the newspaper in the events.  Media companies usually go to court seeking the release of documents, not the suppression of them. Discuss the issues at play here.
  5. What if Stewart had never known about the story and if his police sources had not given him the inside information? When would the public have heard about the raid and what information would they be likely to have learned about it?

There are many more potential issues arising from this story, not least of which concern the respective approaches of The Australian and Crikey in the aftermath. It is worth considering the extent to which media outlets can report fairly upon matters involving their own personnel.

© Mark Pearson 2013

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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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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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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