Tag Archives: public interest

Stakeholder theory as a way of viewing social media policies and risk

By MARK PEARSON

My Skype guest of the week for our Social Media Law and Risk Management course this week is Professor Andrew Crane from York University in Toronto, Canada, the author of one of our key readings for the week on stakeholder theory.

The article is co-authored with Trish Ruebottom and is titled ‘Stakeholder Theory and Social Identity: Rethinking Stakeholder Identification’, Journal of Business Ethics, Vol. 102, Supplement 1: Ethics, Corporations, and Governance (2011), pp. 77-87

We discussed the application of stakeholder theory to social media risk management and policy development. Professor Crane starts by explaining the basics of stakeholder theory (video and transcript below). Enjoy!

INTERVIEW TRANSCRIPT

Mark Pearson (@Journlaw): I am delighted to be joined here today by Professor Andrew Crane who is the George R Gardiner Professor of Business Ethics and Director of the Centre of Excellence in Responsible Business at the Schulich School of Business in the York University in Toronto, Canada. Welcome Andy.

Professor Andrew Crane: Thank you Mark, it’s a pleasure to meet you.

MP: Well you’ve done a lot of research and writing in Stakeholder Theory, and my students have actually been reading one of your co-authored articles on the topic. And for postgrad students who are relatively new to this theory, would you mind just giving a nutshell summary for them?

AC: Sure. Stakeholder Theory is a pretty simple idea in many respects, you know. It’s really about the idea that corporations in particular are not just there to serve the interests of shareholders. So Stakeholder Theory was designed to give us a way of thinking about other ways of understanding both the ownership of corporations, but in particular how decisions should be made. So, who should be involved in decision making, and how should the benefits that are, driven by corporations, the value that is created by them; who should it go to? So Stakeholder Theory is really about those sorts of questions, so who can affect organisations, but also who is affected by them, and what sort of rights do they have in respect to that stake they have, how should they be consulted, how should they be involved in the decision making, and those sorts of things. So it’s a very broad theory, and I saw that in one of your other readings you had the paper What Stakeholder Theory is Not, because there is a whole sort of set of different ways of understanding what it is – you know, it’s a very simple idea: there are multiple constituencies in any organisation, but then when it comes to [the question] of well, who is actually included and what are the implications of that, then it becomes a much broader discussion of the purpose of corporations.

MP: Yes, and we see that at its simplest level, I guess it’s just simply a matter of stakeholders being there to serve the interests of a company, and the main stakeholders being the shareholders and the customers and the corporate directors. But really your article and the other one you mentioned certainly extends that a lot further and it enters that corporate ethics field, where a company and its decisions have so many more stakeholders interests at play.

AC: Exactly

MP: So, coming to your article which starts to talk about social identity and basically presenting a grid which shows some intersection of what might be seen as a traditional role in relation to a corporation, and other social roles someone might play. Would you mind just talking us through the basic principles there and your spin on that?

AC: The basic way we understand stakeholders is the kinds of interactions that they have with the firm; so we think about them as either customers or employees and suppliers, regulators or NGOs or whatever else they might be. That’s typical kind of transactional view of who those different constituencies are. But the reason why different groups may actually mobilise or try and gain legitimacy in relation to firm, how they might press their claims, the kind of stake that they think they have, is not always about those simple transactions that they are engaged with. The reasons that people do things, the reasons people collect together to collaborate and press their claims upon firms are also about who people believe they are, about their social identity. So what are the bonds that connect me to other people that means these are the things that bring people together and make them mobilise in a social movement or some sort of pressure towards companies. So it may well be that I’m a customer of a firm, but I’m might simultaneously also be an employee, I might also hold shares in that firm; and I’ve got all kinds of different relationships with that firm at any one time. What we are trying to do with (Stakeholder) Theory with our paper is to say well, when people actually do try and press their claims, it is often about who we feel connected to that’s important. So the fact that I’m a white, British male for example who lives in Canada, that is very important for why I may be involved, why I might connect with certain firms. For example, it might be very different if I was a woman or a person of colour, or any other kind of quality which might impact on how I connect with companies.

MP: Well it seems, because of that very reason, to lend itself to an examination of social media in relation to a corporation; and particularly in the case of an emerging crisis because people with different social identities might fluctuate more towards social media for different reasons and in different places. Have you thought yourself about the interaction of Stakeholder Theory and social media in the corporation?

AC: I think one of the important ways of connecting up Stakeholder Theory and social media as well if a firm is trying to work out who it should be communicating with through social media; who the constituencies who are important; Stakeholder Theory provides a framework for that, because it gives us a way of thinking through who are the legitimate constituencies that we should be connecting with, how can we distinguish between legitimate and illegitimate, and also between who are the more powerful or less powerful that we should be connecting with. Stakeholder Theory is often seen in very instrumental terms in that sense; it is a strong instrumental approach there which says firms will care about stakeholders that matter – those that have power, those that have legitimacy, those whose stakes are very urgent. So social media is all about power in many respects; it’s about who you can influence, who you can connect to, how many people in your list of Twitter followers and what have you. So for firms it provides a framework for them to establish who matters in terms of their different constituencies. If we take it in an ethical dimension, take it in a more normative perspective, we say well ‘what rights do those people then have’? What sort of rights do you have as an employee, as a consumer, as a broader stakeholder of an organisation in relation to how it is going to communicate to you – in terms of protection of privacy, protection of various rights in terms of bullying and other things through social media?

MP: Yes – and also I think it can catch some corporations by surprise if they haven’t thought through particular social media stakeholders, or people who are using social media who may be stakeholders. And we see this with these grassroots campaigns against major corporations where they’ve underestimated the power of public momentum and social conscious using social media – which fits with your social identity perspective on that, doesn’t it?

AC: Absolutely. I think one of the interesting things here is that we tend to think of stakeholders in terms of a hub with spokes, right? Here’s the firm, here’s the decision making unit, and here’s the employees, here’s the consumers, here’s the suppliers, here’s the others; but social media is all about interconnections between different stakeholders and between different groups. You can’t think in those terms anymore if you’re trying to understand social media. Stakeholder Theory has limits in its traditional view and understanding it, unless you take it to a much more networked, much more nuanced kind of understanding of the types of environments that firms are interacting with.

MP: Well, while Stakeholder Theory might be very useful in research and the academic and looking at corporations and their interaction with various stakeholders, how useful is it as a practical tool in an organisation? So if you were a marketing manager or a public relations manager and you wished to avert some crisis in your company by trying to ascertain who the various stakeholders are and their respective interests.

AC: It can be very useful. It depends how you use it. It can be very effective at helping firms become prepared for identifying the various constituencies they need to be concerned about. If you take it seriously you need to be creative about trying to imagine who those constituencies are, because it is not just who is going to affect you now, when you think about a particular decision, who is going to be affected further down the line. So it can help you to identify these constituencies, but it can also help you to start thinking about, well, how can we predict what the type of response will be from those constituencies, depending upon how much power they have, how much influence, leverage, whether they are connected to other stakeholders in ways that mean they can leverage even greater influence and those sorts of things. So you can start to predict the kind of responses that may happen based on simple stakeholder framework that then gets into the idea of who has power, who can influence what is going to happen in the firm.

MP: And could you see it fitting in any way into the planning and drafting of a social media policy within an organisation?

AC: Certainly, yes. Both in terms of identifying who should be included in that policy, but perhaps more importantly, who should actually be involved in even devising the policy. Stakeholder Theory is all about who should be involved in decision making, so the question will be can we just set up a policy and then kind of send it out and everyone is going to abide by it. Well, realistically, that is not how social media works is it? It is a very unruly phenomenon. So it’s also thinking about who should be involved in the decision making. Who are the parties who are affected by this, and with our social identity card on it. So it’s not just ‘okay we need to involve our employees, or we need to involve our consumers’, but what particular subgroups of those employees or consumers might we need to be concerned with? So Facebook had its big issues with lesbian, gay, bisexual and trans community a couple of years ago by making sure that everyone had their real name as part of their Facebook profiles. This community was saying that they wanted also to express other identities as part of their names. So if you don’t have those groups involved when you’re setting up that policy in the first place, you’ve got all sorts of problems down the line when you realise you’ve upset core constituencies without thinking what it is that bind us all together in terms of our identity.

MP: Well that’s terrific, thanks Professor Crane. It’s great to have one of the authors of our readings talking to us about the subject matter at hand, and I would really thank you for your time today.

AC: It’s been a pleasure, thank you very much.

© Mark Pearson 2015

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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New course helps manage social media risk

By MARK PEARSON

Griffith University has issued the following release on our fully online global social media law course which I will be teaching from March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

New course helps manage social media risk

Managing your social media risk and protecting your brand is the focus of a fully online global social media law course to be offered at Griffith University from March 2015.

Social Media Law and Risk Management is aimed at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management.

“It addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies,’’ says course convenor Professor Mark Pearson.

“The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in averting communication crises.

“It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business and the general public.”

Professor Pearson is the author of Blogging and Tweeting Without Getting Sued – A Global guide to the Law for Anyone Writing Online, co-author (with Mark Polden) of The Journalist’s Guide to Media Law and the Australian correspondent for Reporters Without Borders. His Twitter handle is @journlaw.

Social Media Law and Risk Management is offered online as a stand-alone course or as part of a suite of four courses in the Graduate Certificate in Crisis Communication for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

Media Contact: Deborah Marshall, 0409 613 992, d.marshall@griffith.edu.au

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Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© 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.

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Course outline for global social media law course starting in March

By MARK PEARSON

WE have now posted the course profile for our fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course outline, including the learning activities and assessment, can be viewed here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© Mark Pearson 2015

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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Griffith Uni to offer online global social media law course

By MARK PEARSON

WE are now taking applications for a fully online global social media law course which I will be teaching from Griffith University, starting in March 2015.

social-media-law-risk-management-postgraduate-degree-griffith

 

Titled ‘Social Media Law and Risk Management’, the course is targeted at professional communicators internationally who want an introduction to the laws impacting on social media use and other strategies for strategic social media management including social media policies and risk analysis.

The course can be undertaken as a fully online, stand-alone unit if you just want these skills and may not be able to attend in person, or as part of a suite of four courses in the Graduate Certificate in Crisis Management for students who can visit Griffith University’s Gold Coast or Nathan campuses for their other three courses.

You can read more about the entry requirements, application procedures and fees for the social media law course here.

The course examines the dynamic role of social media law and risk management in a range of social and political contexts internationally, particularly in the averting of communication crises. It provides advanced knowledge and skills in the use of social media by government, non-governmental organisations, business, and the general public. Its special focus is on law and risk management in social media in a global context.

After explaining the basic legal concepts required for effective analysis and understanding, and the elements of stakeholder theory underpinning the course, we then proceed to examine key areas of the law arising internationally when professional communicators use social media. These include defamation, contempt of court, privacy, confidentiality, discrimination, copyright, consumer law and censorship. This feeds into a critical examination of the terms of use of social media providers, effective social media policy formulation and social media risk management – all key skills and understandings for crisis communication.

The course can be completed online with no requirement for on-campus attendance. For on-campus students two meetings per semester will be held on the Nathan and Gold Coast campuses for students to meet colleagues and workshop material with instructors. Learning activities will include video lectures, readings, online discussion board activity, social media interaction, multiple choice quizzes and problem-based learning. Each module is focused upon a social media law or risk scenario where students are challenged to draw upon their readings, case studies and professional experience to map out an appropriate diagnosis and strategic course of action.

‘Social Media Law and Risk Management’ addresses one of the key organisational and crisis communication phenomena of the modern era – engaging effectively and internationally with a range of stakeholders using social media while being cognisant of laws, risks and policies.

The course integrates theory and practice by introducing both stakeholder theory and jurisprudential theory of legal systems in the first module and then applying both in the balance of the course throughout learning activities and assessment tasks. The readings, learning problems and portfolio are designed to allow students to find recent cases from within their own jurisdictions internationally to make their learning most relevant to their particular nation, state or territory of professional practice.

Of course, social media is an international medium and therefore all students need to be broadly aware of the laws and risks applying globally. The course bears a direct relationship to students’ professional needs as crisis communicators in a variety of career roles – public relations, journalism, government communications, corporate communications, social media moderation, marketing, human resources and law.

Assessment includes a reflective learning journal, online multiple choice quizzes, and a written assignment involving the critical appraisal of a social media policy.

Please drop me a line at m.pearson@griffith.edu.au if you would like further information after reading the course brochure available here.

© 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.

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I’m heading to Griffith U as Professor of Journalism and Social Media

By MARK PEARSON

After 24 fulfilling years at Bond University I am leaving to take up a position as Professor of Journalism and Social Media at neighbouring Griffith University.

This Friday, December 21, will be my last day at Bond U and I will take a few device-free weeks of long service leave before starting at Griffith U on February 4, 2013.

You would appreciate my mixed emotions after almost a quarter of a century at the one institution.

I was lucky to be part of the foundation staff at Australia’s first private university in 1989 and have worked with a host of great people over those years to build a credible Journalism program, culminating in the wonderful ‘J-team’ of colleagues I’m leaving this week.

That said, I’m excited by the role I’ll be taking up at Griffith U and am looking forward to joining the faculty there. I’ve collaborated with at least four of my Griffith colleagues on research projects previously and am keen to resume old friendships and start new ones.

As a journalist I am hesitant to claim ‘firsts’, but I can’t find another “Professor of Journalism and Social Media” on a Google-search, although there are a few professors of social media internationally. Please let me know if you find one out there! Of course, I’ll be specialising in the social media law, ethics, risk and policy space in my social media research and teaching and make no claim to be expert in all things social media.

My teaching timetable has already been decided and I’m able to devote my first semester to lecturing and tutoring in my primary field of media law.

My new email address will be m.pearson@griffith.edu.au , but meanwhile you can contact me at journlaw@gmail.com.

I’ve packed 24 years worth of books and papers into boxes to move up the motorway to my new office at Griffith U’s Gold Coast campus, just a 30 minute drive away.

Then it’s Christmas festivities with the family and three weeks of R&R in our motorhome exploring the north coast of New South Wales over summer.

It’s a great life, and I wish you a peaceful and safe festive season.

My journlaw.com blog will resume in February and I’ll also return to the Twittersphere about then @journlaw from my new home at Griffith U.

Best wishes!

Mark (@journlaw)

© Mark Pearson 2012

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Social media legal risks for journalists – the journlaw.com guide to staying safe in the Web 2.0 era

By MARK PEARSON

The latest edition of the Walkley Magazine is out – with the issue in the mail to subscribers and articles gradually being posted to its website. As a teaser, here’s my contribution on the legal risks of social media for journalists:

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Journalists and bloggers face new legal pitfalls in the Web 2.0 publishing environment, writes MARK PEARSON

Industry upheaval has prompted many journalists to retool as bloggers, multimedia producers and social media editors – each with its own set of legal risks.

These roles present exciting new dimensions to journalism – conversations and engagement with audiences, instant global publishing at the press of a button, and new opportunities to share content. But they also present levels of legal exposure most twentieth century journalists did not envisage.

Most of the principles covered in the dusty old media law tomes on a journalist’s bookshelf still hold true for defamation, contempt and confidentiality, but their Web 2.0 application is still being clarified by the courts and reporters and editors need to be aware of their personal legal liability across a range of risk categories.

Old laws, new contexts

Defamation and contempt are still high risk areas for all publishers and numerous judgments in Australia and abroad have established the rules apply just as readily to web and social media postings. Of course, damages awards might be limited if you tarnish someone’s reputation on your Facebook page to your small group of friends. But if your post prompts just one of them to cancel a lucrative contract with the victim, those damages might escalate quickly.

Twitter is still relatively new and the courts are grappling with its implications. For example, judges are yet to decide whether you face any special liability when others retweet your message.  A conservative view would be that a retweeter takes over your liability by republishing – just as anyone forwarding an email did previously. But if your nasty remark goes viral on Twitter the courts might well decide that you should have anticipated republication when you tweeted the original message – because the retweet is so central to the medium. This is virgin territory.

There is still no actionable right to privacy in Australia, although several court decisions and law reform recommendations are moving towards a new statutory tort of privacy invasion. Breach of confidence certainly exists as a legal action and this has been extended in the UK to private information and circumstances.

Facebook comes into play here as journalists download and republish private data and photographs of individuals in the wake of a tragedy or in the midst of a controversy.

That practice also brings us to the murky world of intellectual property and copyright in social media where the media and bloggers have adopted a cut and paste approach to the words and images of others online. This defies the clear international legal position which is that ‘freely viewed does not equal freely used’.

Intellectual property is a double-edged sword. It’s amazing how some publishers will complain about the theft of their own words or images while their staff are madly appropriating the words and images of others online.

New risks in old newsrooms

The new roles journalists have embraced in their existing newsrooms and the changing ways their organisations work with user-generated content across platforms present other hazards.

Moderation of website and social media comment threads has become a new position description – with inherent legal responsibilities.

A recent West Australian case centred upon racist comments on News Limited’s Perth Now website about indigenous youths who had died in a car accident. The fact that the comments were seen and approved by a moderator influenced the Federal Court’s decision to order the publisher to pay the boys’ mother $12,000 compensation for her humiliation under the Racial Discrimination Act.

The landmark case in the field was ACCC v Allergy Pathways in 2011 where then Federal Court Justice Ray Finkelstein (yes, that Ray Finkelstein of media inquiry fame) held that a company was responsible for comments made by others on its corporate Facebook page.

He suggested the comments – in breach of consumer law – should have been removed within a reasonable time during a routine review process.

But what is a ‘reasonable time’ – and does that period differ in serious defamation, contempt or race hate examples? This raises the legal and industrial issue of whether social media editors should be expected to conduct 24/7 monitoring of comments by other citizens (perhaps nasty trolls) on their social media sites.

Journalists would be well advised to clarify this and other aspects of their social media use in the terms of their contracts and to seek input into the social media policies of their employers.

Some columnists have had their services terminated over their inappropriate social media use, but journalists struggle with the confusion over their workplace and private social media persona, given the fact they publish, blog and tweet under their real names.

Special exposure in new contexts

While some are taking on new digital roles in mainstream media outfits, many are offering their services on freelance or contract terms and others are taking up newly created positions in private enterprise or government.

These work environments typically lack the traditional media’s history of daily engagement with media law, including on-call advice from in-house legal counsel and a generous budget line for courtroom stoushes.

If you are a freelancer or contractor you would be wise to take advice on your own exposure and professional indemnity insurance options – something you didn’t need when you were on the payroll of a large media enterprise.

If you are taking up a new media position in a corporation or government department you should review your work contract carefully for evidence of the industrial consequences you might face if your writing, editing or production triggers legal action.

A defamation threat that might have appeared routine to your managing editor at a newspaper or television network might well be viewed as a crisis by your new corporate boss or public service chief and it might even place your job on the line.

As we wave goodbye to journalism as we knew it, opportunities are arising in the mainstream media and beyond.

Media law was always a core training requirement for cadets and journalism students. Now all journalists need to update and extend that knowledge so they can assess their legal exposure across a broader range of work environments and functions.

© 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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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.

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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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