Tag Archives: sub judice

Ten minutes with @journlaw – Anne Stanford from @SCVSupremeCourt talks open justice #MLGriff


In this week’s interview (actually 14 minutes!) I chat with the Strategic Communication Manager at the Supreme Court of Victoria, Anne Stanford, about open justice, suppression orders and general court reporting guidelines.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.

Listen to Supreme Court of Victoria Strategic Communication Manager Anne Stanford on open justice.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

#Hinch (@HumanHeadline), #Morcombe and open justice – lessons in media law


It is timely that in the space of a week we should see the Human Headline (@HumanHeadline) Derryn Hinch released from jail for a publication offence and a serial offender receive a life sentence for the sex murder of teenager Daniel Morcombe.


Courier Mail front page 14-3-14

We learned yesterday after Brett Peter Cowan was convicted of that 2003 crime that he had served time twice earlier for similar offences.

He is exactly the kind of individual that Hinch wants placed on a public sex offender register for exactly the reason most talkback callers and social media commenters are asking this question: How can we release such individuals anonymously into our communities when we cannot be sure they will not strike again?

Hinch asked it again this morning:

Hinch became the first Australian journalist jailed this millennium for a publishing offence when he was jailed for 50 days refusing to pay a $100,000 fine for breaching a suppression order on the prior convictions of Adrian Ernest Bayley – the accused sex murderer of ABC worker Jill Meagher in Melbourne in 2012.

In 2011 he was sentenced to five months of home detention for publicly naming two sex offenders at a rally and on his website in defiance of such anonymity orders.

In 1987 he was jailed on a contempt of court charge after broadcasting the criminal record of a former priest Michael Glennon accused of child sex offences and implying his guilt in his high rating Melbourne radio program.

It was only by a 4-3 majority that the High Court later stopped short of overturning Glennon’s conviction on those sex charges on the grounds of Hinch prejudicing his fair trial. (Glennon died in jail this year.)

Journalists and media law students have much to learn from the events of the past week.

While the crimes themselves left a trail of human destruction, the Hinch and Morcombe stories make for ideal case studies in a media law module covering open justice, contempt of court and court reporting – the exact module my students will be starting next week.

They will get to research and debate these kinds of important questions that arise from the week’s events:

  • What public policy issues are at play that see a journalist jailed for reporting the past convictions of an individual convicted of a high profile crime?
  • What does such a penalty say about Australia’s standard of media freedom?
  • Why is Australia’s approach to this level of suppression different from that applying in the United States?
  • Why should the mainstream media be prevented from reporting such material when social media platforms and certain websites are full of it?
  • Why would Hinch’s blog and Twitter feed where he breached the suppression orders over Bayley not represent a ‘real risk of prejudice’ to the trial, when mainstream media coverage might do so?
  • How can juries be quarantined from such information and – if they can’t – why shouldn’t the media be allowed to publish it?
  • Do other methods of dealing with juries – judges’ instructions, training, sequestering etc – mean we no longer need to suppress such material?
  • Are the past offences of such criminals matters of such overwhelming social importance and public concern that suppression of the details should be considered contrary to the public interest?
  • Should the Courier-Mail’s front page heading of February 21, 2014 – ‘Daniel’s Killer’ – have forced the trial to be aborted? Should it be grounds for a sub judice contempt charge? Should it be grounds for Cowan’s appeal?
  • How can a journalist report upon such proceedings in an interesting and timely way while navigating the various restrictions that apply?
  • How ‘open’ should ‘open justice’ be in such high profile trials? Should cameras and smartphone recordings be allowed in court? Should tweeting and other social media usage be allowed in court?
  • Is it appropriate in the modern era of communication that a major television network has to rely on a presenter standing outside a courthouse relaying sentencing information to the audience from a court reporter on the inside via telephone?
  • How much social media commentary should be tolerated about such cases while an accused is facing trial?

I’m sure many other questions arise too – and would be keen for other educators, journalists, lawyers and students to use the Comments section here to pose them so my students can take them up in lecture and tutorial discussions.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

The Human Headline legacy – the jailed Hinch, suppression and free expression


Broadcaster, tweeter, blogger and veteran journalist Derryn Hinch – the self-proclaimed ‘Human Headline’ – has been released from jail after serving a 50 day sentence for breaching a suppression order. 

Derryn Hinch's 'Human Headline' blog - Countdown to Freedom

Derryn Hinch’s ‘Human Headline’ blog – Countdown to Freedom

Hinch had refused to pay a $100,000 fine over his blog and Twitter comments including suppressed background material on Adrian Ernest Bayley, accused of the Melbourne murder of Irish woman Jill Meagher.

Hinch has been jailed twice, fined and sentenced to home detention for his contemptuous reportage and commentary about sex offenders over more than a quarter of a century.

While much of the coverage of his prosecutions and trials has focused on his cavalier and principled stance in the vein of his ‘Human Headline’ moniker, he has also been responsible for a body of case law covering sub judice contempt, the naming of a child sexual assault victim and the defiance of suppression orders – in his television and talkback radio programs, blogs and Twitter feeds.

I am preparing a paper for the ANZCA conference in Melbourne in July, reporting on a legal and textual analysis of eight key Victorian and High Court cases involving Hinch as a party in 1986, 1987, 1996, 2011 and 2013.

It reviews these key cases involving Hinch as a defendant and an appellant since 1986 – including Magistrates, Supreme Court, Court of Appeal and two High Court judgments – and identifies the key media law principles shaped in the process.

It concludes that the Hinch legacy is far more significant than his shallow ‘Human Headline’ title suggests – and ventures into important human rights questions arising in the complex legal and moral terrain where free expression, the ‘public interest’ and the ‘public right to know’ compete with an accused’s right to a fair trial, an ex-prisoner’s right to rehabilitation and a child’s right to protection from sexual predators.

For example, Hinch’s appeal to the High Court over his contempt conviction in 1987 was unsuccessful but resulted in a broadening of the public interest defence to sub judice contempt.

His latest case offers an excellent summary of the relevant factors considered in deciding whether there is a real risk of prejudice to a trial, because Hinch was acquitted on a second contempt charge that his blog ‘had a tendency, or was calculated, to interfere with the due administration of justice in the trial of Bayley’.

Victorian Supreme Court Justice Stephen Kaye ruled that three factors combined to reduce the tendency of Hinch’s blogging to prejudice potential jurors: the small readership of the article, the period of delay between the publication of the article and the likely trial date of Bayley, and other prejudicial material about Bayley circulating in the media and social media at the time (para 114). While ‘highly prejudicial’, Justice Kaye had a ‘reasonable doubt’ in light of those three factors that the article would have prevented Bayley getting a fair trial.

I will post updates on this paper as the research and writing unfolds. Meanwhile, no matter what you think of Hinch’s bravado in his naming and shaming of sex offenders, at least this week we should be able to celebrate the release of an Australian journalist from jail.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014


Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized

The courts and social media: what do judges and court workers think?


Another article by our collaborative Courts and Social Media research team has been published – this time in the Judicial Officers’ Bulletin (Published by the Judicial Commission of NSW).

A hearty thanks to my colleagues – Patrick, Jane, Sharon and Anne – for your collaboration! It is a team of academics from four universities – Bond, Griffith, Monash and Edith Cowan – proving that worthwhile research can defy institutional and geographic boundaries.

The citation is:

Keyzer, P., Johnston, J., Pearson, M., Rodrick, S. and Wallace, A. (2013). ‘The courts and social media: what do judges and court workers think?’ Judicial Officers’ Bulletin, 25 (6). July 2013: 47-51.

JudicialArticleThe full pdf of the article can be viewed here at the site of the Centre for Law, Governance and Public Policy at Bond University, but here is the introduction to give you a taste for it:

“Social media” is a collective term for a group of internet-based applications that allow users to create, organise and distribute messages, pictures and audio-visual content.[1]  Generally speaking, social media is characterised by its accessibility, participatory culture and interactivity.[2]  Social media can be “two way” (allowing conversations characterised by varying degrees of publicity, depending on the privacy settings selected by the contributor) or “one way” (allowing publication of information, but not permitting comment).[3]

Social media have created intense challenges for the law and judicial administration.[4] Traditionally, the courts have employed the law of sub judice contempt  to prevent prejudicial publicity, to protect the right to a fair trial, and to ensure the due administration of justice. Courts also have the option of making non-publication orders about cases.[5]  However, social media applications have dramatically increased the number of people who can publish material about court cases.[6]  Many of these “citizen journalists” are unaware of the legal rules that restrict what they can publish.[7]

At the same time, social media have created unprecedented opportunities for the courts to engage with journalists and the wider community.[8]

This article reports on the findings of a small research project conducted in February 2013 with 62 judges, magistrates, tribunal members, court workers, court public information officers and academics working in the field of judicial administration.  We acknowledge that there were no journalists present, and our findings therefore are skewed towards the legal profession. However, so far as we are aware, this is the first attempt to gauge the opinions of some key stakeholders on the issues in this area.  We intend to follow up this pilot project with more research to build on our findings.

After describing our research methodology, we outline the findings and offer our brief reflections.

[1]                 T Bathurst, “Social media: The end of civilisation?” The Warrane Lecture, 21 November 2012, UNSW, Sydney, p 7; A Kaplan and M Haenlein, “Users of the world, unite! The challenges and opportunities of social media” (2010) 53(1) Business Horizons 61.

[2]                 P Keyzer, J Johnston, G Holland, M Pearson, S Rodrick and A Wallace, Juries and Social Media, Centre for Law, Governance and Public Policy,  a report commissioned by the Victorian Department of Justice on behalf of the Standing Council on Law and Justice, 16 April 2013, [1.2], <www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juries%20and%20social%20media%20-%20final.pdf> accessed 20 June 2013.

[3]                 Privacy Victoria, “Social Networking, Information Sheet 04.11, September 2011, at <www.privacy.vic.gov.au/domino/privacyvic/web2.nsf/files/social-networking/$file/info_sheet_04_11.pdf> accessed 20 June 2013.

[4]                 For a discussion of these challenges, see: M Pearson, Blogging and Tweeting Without Getting Sued, Allen and Unwin, Sydney, 2012; P Keyzer, J Johnston and M Pearson, (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media, Halstead Press, Sydney, 2012.

[5]                 D Butler and S Rodrick, Australian Media Law, 4th edn, Thomson Reuters, Australia, 2011, ch 6.  There is also an increasing tendency of courts to make general non-publication orders rather than rely on people knowing and complying with the common law of sub judice contempt. In other words, courts are prohibiting by specific order what would be prohibited by contempt laws anyway.

[6]                 Juries and Social Media, above,  n 7, at [2.3].

[7]                 ibid.

[8]                 J Johnston, “Courts’ New Visibility 2.0”, in Keyzer, Johnston and Pearson, (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media, above, n 9.

© 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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My submission to the Tasmania Law Reform Institute on ID of sex crime victims


Here is my submission responding to the issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes.

For background to the inquiry, see my earlier blog here. It was triggered by this Hobart Mercury story (left).


September 28, 2012

Submission in response to Issues Paper No 18 ‘Protecting the Anonymity of Victims of Sexual Crimes’

Please accept this personal submission in response to your issues paper, which I have prepared with research assistance from Bond University students enrolled in my media law and ethics subject. They have been required to read and discuss your report as part of an assignment for that subject and their scholarship and insights have informed the views I express here. I must stress, however, that this is a personal submission as an academic who teaches and researches in the field and my opinions do not necessarily reflect those of my employer, Bond University, or the international media freedom agency Reporters Without Borders, for whom I am the Australian representative.

By way of background, my research, teaching and industry consultancy focus on the interpretation of media law for journalists and other writers who might produce reportage as bloggers, ‘citizen journalists’ or social media users. I am co-author with barrister Mark Polden of The Journalist’s Guide to Media Law (4th edition, Allen & Unwin, 2011) and am sole author of Blogging and Tweeting Without Getting Sued – A Global Guide to the Law for Anyone Writing Online (Allen & Unwin, 2012). I have conducted media law training for Fairfax Media journalists at the Launceston Examiner and the Burnie Advocate newspapers. Our Centre for Law, Governance and Public Policy convened the national symposium ‘Courts and the Media in the Digital Era’ in 2011, which resulted in our co-edited book The Courts and the Media – Challenges in the Era of Digital and Social Media (Keyzer, Johnston and Pearson, Halstead Press, 2012). We are now collaborating with colleagues from other universities on a national research project examining the impact of social media upon the courts.

I have chosen to begin with some general observations about the tone and ambit of your issues paper before proposing a mechanism for reform.

Important contextual considerations

Issues Paper 18 is an excellent summary of comparative legislation and case law on the identification of sex crime victims. It canvasses numerous public policy issues at stake when contemplating a reform of s. 194K. However, it seems to demonstrate little understanding of media organisations’ news values and production values and does not acknowledge several important policy developments under way nationally and globally.

Journalists’ training

The paper offers a handful of examples where such laws have been breached by the news media in Australia, including only one in recent times in Tasmania that has proceeded to court. While we all would prefer there were no media breaches of identification laws, I suggest that court reporters are overwhelmingly aware of, and compliant with, both sub judice contempt guidelines and statutory reporting restrictions. This is due mainly to the media law education and training reporters receive in their university journalism degrees and in the workplace. Most media organisations also provide shorthand tuition to their staff and adhere to strict court reporting protocols where cases are followed through the court system and junior reporters ‘shadow’ experienced colleagues before starting on the round. One of the fundamental topics all court reporters learn is that there are restrictions on the identification of children and sexual assault victims involved in proceedings.

News values, open justice and the role of court reporting

Your issues paper devotes a small section to the principle of ‘open justice’ which quite rightly quotes important jurists and international human rights documents and legislation enshrining it (Part 2.1). Yet, it implies news organisations are motivated primarily by commercial interest when reporting upon the courts. At 4.3.3, your paper states: “Media outlets have an obvious interest in publishing material that will attract readers or viewers. A story that identifies the victim of sexual assault is likely to attract greater consumer interest than one that does not. There is a strong incentive for the media to publish such details.” I am aware of no research supporting this assertion and my informed view is that editors, sub-editors and court reporters strive to abide by the legal restrictions and ethical obligations forbidding identification. On rare occasions that determination is tested in the heat of competition for a particularly unusual story or one involving a celebrity – but such occasions have become even less common in the wake of strong national and international scrutiny of such media behaviour. It is, however, a mistake to view this story of this 12-year-old Tasmanian girl prostituted by her mother and the named accused as one of simply the media feeding a public titillation with sordid sexual detail. The story indeed featured the news values of ‘unusualness’ and sheer ‘human interest’ – but it also had the important public news value of what we call ‘consequence’ or ‘impact’ – many of which concern public policy benefits of the reportage of such matters.

Public policy benefits of media reportage of sexual and juvenile cases

There is a principle as ancient and as inherent in a democracy as open justice – and that is the role of the news media as the ‘Fourth Estate’. Key public policy reviews and reforms have ensued in Tasmania after this incident, and I suggest they might not have garnered the political traction to proceed if the public had been kept ignorant of the matters before the courts. These have included your own review of the defence of ‘mistake as to age’ and other important reviews of child protection. In short, court reporting by the news media and the public discussion and scrutiny it generates can fulfil many important functions in society beyond sheer entertainment; including deterrence from crime, education about justice, transparency of process, and as a watchdog on injustice and deficient public policy. Closed proceedings – or complex requirements involving media applications to cover certain matters – pose serious risks to such positive public policy outcomes.

Free expression and freedom of the press

A close relative of the principle of ‘open justice’ in a democracy is the human right of free expression and its derivative – freedom of the press. Your paper does not mention this principle, but it is crucial to note when comparing reporting restrictions across jurisdictions that Australia is unusual among western democracies in that it has no written constitutional guarantee of free expression or a free media. Each of the foreign jurisdictions your paper uses for comparison on sexual reporting restrictions – the United Kingdom, Canada and New Zealand – features such a guarantee in a charter of rights. Australia and Tasmania have no such statutory or constitutional mechanisms in place, which is an important point of difference because proposed restrictions trigger no formalised process of review on free expression grounds and courts here are not obliged to weigh free expression against other rights in their determinations. (There is, however, an argument that court reporting restrictions might breach the High Court’s implied constitutional freedom to communicate on matters of politics and government; see Nationwide News v. Wills [1992] HCA 46; (1992) 177 CLR 1).

Media ethics and regulation

I realise the your document focuses on the narrow question of whether S. 194K should be reformed, but highly relevant is the likelihood of media organisations being motivated to use a perceived legal ‘loophole’ to identify a vulnerable individual such as a child who has been subjected to sexual abuse. Such a motivation would represent a serious breach of the privacy provisions of the MEAA Journalists’ Code of Ethics and all self-regulatory and co-regulatory codes of practice in place throughout print, broadcast, television and online news media industries – including in-house codes, those of the Australian Press Council and the numerous broadcast sector codes ultimately policed by the Australian Communications and Media Authority (ACMA). The question of media adherence to such codes has been the subject of two major inquiries in the form of the Convergence Review and its subsidiary Independent Media Inquiry chaired by former Federal Court justice Ray Finkelstein – the recommendations of which are currently under consideration by the Federal Government. Regardless of whether they are adopted, an impact has been significant attempts by the news media to get their own ‘houses in order’ to avoid the prospect of strict government regulation of their ethical practices and complaints systems. The Australian Press Council has implemented significant improvements to its processes. All of this has been against the international backdrop of the UK inquiries into serious ethical and legal breaches by the Murdoch-owned News of the World newspaper.

Privacy regulation and factors impacting media privacy intrusion

Related to this inquiry have been important developments in the area of privacy law and regulation. You would be aware that the Commonwealth Government has already implemented privacy law reforms recommended by the Australian Law Reform Commission Report 108: For Your Information: Australian Privacy Law and Practice (http://www.alrc.gov.au/publications/report-108). The Gillard Government is reported to be seriously considering a recommendation for a statutory tort of invasion of privacy. Whether or not that is implemented, your own issues paper at p. 14 cites the case of Doe v. ABC (2007) VCC 282, where a journalist’s identification of a sexual assault victim led to both criminal charges and a civil suit where damages were awarded for the privacy invasion of the victim. Although this was an intermediate court decision, it stands as a precedent in a developing body of judge-made privacy law. Significant too is the ACMA’s 2011 review of its privacy guidelines (http://www.acma.gov.au/WEB/STANDARD/pc=PC_410273) for broadcasters which included important changes in the way broadcast media should deal with vulnerable interviewees, particularly children. The submission from an ARC Vulnerability Linkage Grant project on which I was a chief investigator seems to have been influential in helping frame these new provisions. (See our submission to that ACMA inquiry at http://www.acma.gov.au/webwr/_assets/main/lib410086/ifc28-2011_arc_linkage_grant.pdf ).  In short, my view is that media outlets are working to a higher level of internal, industry and public accountability when dealing with the vulnerable (particularly children) than they were two years ago when this court proceeding was reported.

The Internet, social media and the Tasmanian jurisdiction

Your issues paper makes some mention of the Internet, primarily with regard to the terminology and scope of s 194K at 5.4.2, but it mentions social media only as a footnote on page 32. My informed opinion, drawing upon research for my most recent book and for our courts and social media project at Bond University’s Centre for Law, Governance and Public Policy, is that it would be a grave error to proceed to legislative reform without due consideration of the extraordinary ways in which social media has changed the capacity for ordinary citizens to become publishers about court proceedings. Importantly, this allows for the exact reverse situation to occur in a trial to what happened in this case. Instead of the traditional media revealing, albeit indirectly, the identity of a child sexual crime victim to people who might otherwise not know her, social media allows for those who know the victim to reveal her identity to the wider world via their networks of Facebook ‘friends’ and Twitter ‘followers’. Here you are dealing with ordinary citizens who may be completely ignorant of legal restrictions on identifying such victims and may even be relying on second hand information from court proceedings they have not even attended. The reality is that the advent of social media means that  no tightening of restrictions such as those found in s.194K will be totally effective in protecting the identity of anyone involved in court proceedings – no matter how compliant journalists from traditional media might be. Web 2.0 means that secrets – particularly interesting ones – will not often be revealed, and those revealing them might not be identifiable or answerable. It has led to what I describe as a “two-speed” suppression regime in our justice systems – effectively one rule for traditional media and a different rule for citizens using social media who sometimes have an even larger audience than news outlets for their gossip and innuendo. For a recent example of this, see the remarkable situation where the mainstream media was prevented from reporting that the acting police minister faced serious sexual charges under the Evidence Act 1929, s 71A – but his name was all over the Internet and social media (See http://www.adelaidenow.com.au/news/south-australia/bernard-finnigans-name-was-all-over-the-internet-despite-suppression-order/story-e6frea83-1226480605607 and https://journlaw.com/2011/05/04/south-australias-antiquated-sex-id-law/ ).

A feature of Internet searches is that Google searches for certain terms group the results, leading to possible identification via a combination of factors across different results, whereas any single publication would not identify a victim. Similarly, an individual’s Facebook page or Twitter profile will list their ‘friends’ or associates, allowing social media to link an unnamed victim with a named accused if they have a close relationship. These factors present a challenge for reform of such legislation. A bizarre aspect of your inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter. Further, it draws attention by headline to the actual article that has triggered the inquiry, thus facilitating readers to access the very material that identifies the victim. It is sad and ironic that someone who knew the family and those basic facts might well discover the victim’s identity via the Institute’s very own document.

The paper also seems to take a pre-Internet approach to jurisdictional sovereignty, suggesting that Tasmania’s reach might extend beyond its island borders to ‘the entire world’ (4.3.9). While the state might well achieve such reach in the most serious offences via extradition agreements, I suggest it is counter-productive and unrealistic to entertain the notion that a Tasmanian identification prohibition is going to have any real effect on individuals publishing material on the Internet from beyond the State’s borders.

Court closure and judicial censorship are a threat to open justice

Completely closing the court in such proceedings would be a draconian and retrograde step, counter to the principle of open justice and damaging to the important public policy outcomes I mentioned earlier in this submission. I understand the detailed mention in the Mercury article of the sexually transmitted diseases the girl had contracted was a special concern of those who wanted the DPP to press charges in this matter. Yet there is strong argument that there could be important public policy outcomes from the publication of such graphic details; such as deterring prostitution clients from engaging in unprotected intercourse and the incentive for the numerous clients in this case to seek treatment to prevent their spread through the broader community. A closed court would prevent such public messages being conveyed.

Just as concerning is the censorship regime proposed in Option 3, requiring at 5.2.4 “that the media outlet provide details of what they intend to publish to assist the court in determining whether to grant the order”. The following sentence reads like a dictum from a despotic regime on the Reporters Without Borders watch list: “The court could then decide whether to allow publication of the whole piece, some parts of the piece or to deny publication altogether”. Such an approach is anathema in a state of a progressive western democracy like Australia. It would breach the ancient rule against ‘prior restraint’ – defended so eloquently by the first Chief Justice of NSW, Sir Francis Forbes against Governor Darling in 1826 (See Spigelman, J., 2002 at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_spigelman_201103).

My suggested mechanism for reform of s. 194K

Rather than debating the pros and cons of the various options foreshadowed in your paper, I will instead propose a workable solution that will minimise the likelihood of the recurrence of the circumstances that occurred in this case. As I suggested above, there is now no watertight legislative or procedural way to be absolutely certain of protecting the anonymity of victims of sexual crimes.

Your paper offered an excellent summary of sexual case reporting restrictions in Australia and in comparable foreign jurisdictions, but seemed to ignore the similar identification laws that apply to the identification of children in proceedings. The case prompting this inquiry involved both a juvenile and a sexual matter, which of course prompts the highest level of caution with identification. Our text, The Journalist’s Guide to Media Law (with Mark Polden, Allen & Unwin, 2011) features comparative tables of both juvenile and sexual proceedings reporting restrictions (at pp. 160-162 and pp.156-158 respectively). I feel S 104C of the NSW Children and Young Persons (Care and Protection) Act 1998 offers a promising solution in the form of a news media privilege to attend proceedings for reporting purposes:

104C   Entitlement of media to hear proceedings

At any time while the Children’s Court is hearing proceedings with respect to a child or young person, any person who is engaged in preparing a report of the proceedings for dissemination through a public news medium is, unless the Children’s Court otherwise directs, entitled to enter and remain in the place where the proceedings are being heard.

The news media have traditionally been extended certain privileges in courts as the ‘eyes and the ears’ of the broader citizenry – reserved seating at a press bench, access to court papers, and sometimes even standing to make a submission on a court order (Evidence Act (SA) s. 69A(5).) In NSW they are allowed to attend and report upon children’s court proceedings – but are of course expected to comply with identification restrictions. This is sensible, given journalists’ training in media law and court reporting matters and their understanding that it is only a privilege that a judicial officer might choose to withdraw. All this also prompts questions about the role and entitlements of reporters from non-traditional media – bloggers and ‘citizen journalists’ – who might choose to cover certain trials and report upon them on social media or upon specially constructed crime websites devoted to high profile proceedings. I suggest procedures could be applied to require ‘citizen journalists’ to satisfy the court that they deserve such a media privilege on a case-by-case basis.

In summary, and without extended further explanation, my proposal is:

  • Close the courts in matters involving children and sexual assault victims to the broader citizenry to limit social media ‘leakage’ of matters such as identification;
  • Allow authorised news media representatives to attend and report with the following identification restrictions;
  • Tighten the identification wording so that indirect identification is less likely. Prohibit the naming of the victim, of course. Require the court to rule upon the other identifying factors allowable in the particular case, with the working principle that a combination of factors does not identify the victim. (For example, allow her suburb and her age to be published if the suburb is populous enough, but not the sporting organisation of which she is a member.) Also prohibit visual identification of the accused in sexual assault cases where the accused has had an ongoing relationship with the victim (not necessary where the assault has been an attack by a stranger) so that those who have seen the accused with the victim do not identify her by this means.
  • Prohibit all photographs or footage of the victim being published or broadcast – even those pixelated or obscured in any way. (This practice is flawed.)

My final comments address two important points related to journalists. Firstly, I suggest there are excellent public policy reasons why victims should be permitted to self-identify as sexual assault victims at a reasonable time after proceedings have ended. I am not a psychologist, but I float the suggestion that a period of two years after the completion of proceedings might be a time when some victims might feel able to give ‘informed consent’ to a media outlet to tell their story – and that such a story could itself have major public policy benefits. Given that abuses of such a privilege are rare in jurisdictions that allow it, I suggest it be worded so that it is enough that the victim gives the journalist his or her permission in writing for publication, and that the onus of proof be on the prosecutor to demonstrate that the journalist “knew, or should have known” that the consent was not “informed” by the condition of the victim at the time and that financial inducements be prohibited.

Secondly, I offer my strong view that any penalties for breach of the reformed statute be dealt with as an offence against the statute itself, and with a fine and not a jail term. Breaches have been so rare in the past and are usually accidental, and it is an affront to democracy when states jail journalists for publishing offences. Contempt powers, particularly those wielded by superior court judges, are far too broad to justify their application to this type of publishing error.

I wish you well with your deliberations on this important matter and would be pleased to offer any further assistance if you should require it.

Yours sincerely,

Professor Mark Pearson

© 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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Tasmanian sex case ID proposals under scrutiny


An issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes – raises so many issues of relevance to my media law and ethics class that I have built a problem-based learning assignment around it.

The inquiry was triggered by coverage in the Hobart Mercury (see picture) in 2010 of prostitution of a 12-year-old girl by her mother and her mother’s male friend.

While the Mercury anonymised the identity of the girl and her mother, it named the accused male and listed several details that might have led readers with some knowledge of the accused or the family to identify the victim.

The barrister appointed as the girl’s representative in her care and protection proceedings, Mr Craig Mackie, wanted the newspaper charged for breach of the legislation prohibiting the identification of a sex crime victim (s194K of the Evidence Act 2001).

But the prosecutor’s office refused to act, arguing the identification was too indirect to breach the provision. Mr Mackie also sits on the Tasmanian Law Reform Institute board, and he referred the matter to that body for its review.

The issues paper covers some of the key topic areas covered in our media law and ethics subject –free expression, open justice, contempt of court, court reporting restrictions and privacy.

As part of our problem-based learning task, some students might file their own submissions before the September 28 deadline, while others will use their research to inform a reflective paper they submit as a class assignment a week later.

I might draw upon some of their research and insights in my personal submission to the inquiry – with due recognition to their efforts.

Media law tragics will find the Institute’s issues paper compelling reading.

On the one hand, it offers in a relatively brief 52 pages an excellent comparison of reporting restrictions in sexual crimes across several jurisdictions including most Australian states and the UK, New Zealand and Canada.

It also summarises the key cases in the field and quotes some of the leading judgments on the principle of open justice.

Yet my own submission will call into question several assumptions and gaps in the Issues Paper, including:

–       Evidence of anti-media language and stance, betraying a fundamental assumption that journalists are out to expose sexual assault victims despite there being relatively few cases where they have done so (often accidentally).

–       An old world ignorance of the advent of social media, citizen journalism and blogging, which have complicated the 20th century approach to regulating news media coverage of sex crime cases.

–       A similar pre-Internet approach to jurisdiction, seemingly working from the premise that publications about such matters are contained within Tasmanian borders.

–       Disregard of the fact that the Commonwealth Government is considering major reform proposals on privacy law and media regulation, all of which are relevant to the media’s exploitation and exposure of vulnerable victims of sex crimes.

–       Floating an extraordinarily proposition for prior restraint in such matters – that the media be totally banned from covering sexual cases and that a court should review and censor any proposed story about such a case pre-publication.

–       Ignoring the fact that free expression has no constitutional guarantee in this country – unlike in all of the foreign jurisdictions used as a yardstick for comparison, each of which features either a constitutional guarantee or one contained in a bill or charter of rights.

A bizarre aspect of the inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter.

It is ironic that someone who knew the family and those basic facts might well discover her identity via the Institute’s very own document.

I’ll publish my submission in a future blog.

© Mark Pearson 2012

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.


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SHIELD LAWS update – an experiment in collaborative scholarship


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

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

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

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

We also have a DEFAMATION update and a CONTEMPT update.

Cheers, Mark Pearson.


[contributed by Virginia Leighton-Jackson]

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

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

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

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

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

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

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


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

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

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

 The Sydney Morning Herald

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


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


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

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

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

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

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



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

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

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

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

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CONTEMPT update – experiment in collaborative scholarship


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

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

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

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

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

We now also have a DEFAMATION update.

Cheers, Mark Pearson.


Update September 18, 2012 from Edward Fleetwood:

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

Title: Regina v Simon Harwood

Authors: Mr Justice Fulford

Date: 20 July 2012

Location: Southwark Crown Court

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

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

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

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

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

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

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

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

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

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

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

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

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

–          What steps should the court take?

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

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

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

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

Date: August 2012

Location: Canberra, Australia


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

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

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

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

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

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

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

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

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

Committee recommends

–          Adoption of Appendix C

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

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


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

Title: New California Law Prohibits Jurors’ Social Media Use

Author: Eric P. Robinson

Date: 1 September 2011

Location: California, USA

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

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

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

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


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

Title: Mauritian editor in scandalising case seeks Privy Council appeal

Authors: Media Lawyer

Date: 10 August 2012

Location: Mauritius

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

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

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

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

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

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


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

Title: Reporter has no conviction recorded for jail interview

Authors: Kristy O’Brien

Date: 22 August 2012

Location: Darwin, NT Australia

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

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

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

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

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

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

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

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

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


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

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

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

Date: 2010

Location: Victoria, Australia

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

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

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

–          Jury found the accused guilty

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

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

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

–          Over seven years coverage included

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

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

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

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

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

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

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


 Even Lords may be in contempt for their tweets

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

Authors: BBC News

Date: 26 May 2011

Location: United Kingdom

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

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

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

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

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

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

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

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

–          In referring the matter, Justice Saunders said “I reported the matter to the attorney general not for the purpose of taking any action against Lord Sugar but to investigate whether entries on Twitter sites of high profile figures relating to trials which were going to take place or were taking place posed a risk of prejudicing the fairness of a trial.

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


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

Title: Twitter’s in ‘contempt’: DA

Authors: Garett Sloane

Date: 8 September 2012

Location: New York City, NY USA


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

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

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

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

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

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


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

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

Authors: David Ng

Date: 7 September 2012

Location: New York City, NY USA

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

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

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

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

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

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

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


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

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

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

Date: 18 July 2012

Location: United Kindgom

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

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

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

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

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

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

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

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

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

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

–          Analysing the articles

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

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

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

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


(Posted earlier)

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

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

Authors: O’Regan P, Harrison and Wild JJ

Date: 11 May 2012

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

Country: New Zealand

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

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

–          At the top of the 9 December judgement read:


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

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

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

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

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


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

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

Authors: Michael Legg and Lara Dopson

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

Country: Australia

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

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

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

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

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

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

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

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

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


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

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

Authors: David Banks

Date: 9 July 2012

Location: UK

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

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

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

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

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

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

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


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

Title: Teen fights back with Twitter

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

Date: 23 July 2012

Location: Louisville, Kentucky, USA

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

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

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

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

–          Her tweets read

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

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

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

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

Authors: AP

Location: Louisville, Kentucky, USA

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

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

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

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

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


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

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

Authors: Roxanne Burd and Jacqueline Horan

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

Country: Australia

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


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

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

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

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

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

–          They instead propose

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

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


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

Title: Trigger-happy petition backers warned of contempt

Authors: Daniel Hurst

Date: 20 June 2012

Location: Brisbane, Australia

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

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

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

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

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

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


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

Title: Contempt

Authors: UK Law Commission

Date: 2012

Location: UK

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

–          New report on contempt

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

–          Different forms of contempt

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

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

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

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

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


 Twitter may face censoring in India

Title: Indian government warns Twitter over not censoring tweets

Authors: Dara Kerr

Date: 21 August 2012

Location: India

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

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

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

–          If Twitter does not censor certain content then the In

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

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

… and …

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

Title: Indian Government Defends Social Media Crackdown

Authors: Gardiner Harris and Malavika Vyawahare

Date: 24 August 2012

Location: India

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

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

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

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

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

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

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


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

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

Authors: Victoria Grabner

Date: 26 August 2012

Location: Henderson County, Kentucky, USA

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

–          It has been 17 years since Heather Teague disappeared

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

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

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


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

Title: Bendigo Facebook sex rater gets jail

Authors: Elise Snashall-Woodhams

Date: 22 August 2012

Location: Bendigo Magistrates Court, Victoria, AUS

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

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

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

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

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

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

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

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

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

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

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


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Why the #law stops you venting on #Facebook and #Twitter about the #Morcombe case


[For readers outside Australia, please see background and coverage links in the Courier-Mail]

Child sex crimes rank among the most offensive and upsetting actions of human beings upon each other, so it is little wonder that people want to vent on social media when an arrest occurs in a high profile case like the Daniel Morcombe murder.

Ordinary citizens need to realise that their comments on Facebook, Twitter and other websites are ‘publications’ in the eyes of the law, and there are three types of restrictions in Queensland applying to such cases.

1. Suppression order on identities of witnesses. In this case the main factor limiting publication of the accused’s identity was a non-identification order placed on the names of witnesses during an earlier inquest into the victim’s disappearance. The Queensland Coroner lifted this ban on the identification of the accused on the afternoon of August 16, after media representation, so he can now be named as part of a fair and accurate report of court proceedings. See: http://www.abc.net.au/news/2011-08-16/morcombes-alleged-killer-named/2842126

2.  Ban on identification of the accused in certain sex cases. The law in Queensland is similar to that of South Australia, which I have blogged about previously. In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7). It carries a two year jail term. The laws differ from those in other Australian states and territories where only the identity of the sex crime victim is suppressed. (In other states and territories, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.)

3. Ban on prejudicial coverage. Once a suspect has been arrested OR charged with a crime, there are tough restrictions about what can be published about the matter in that jurisdiction. This is because our justice system works on the assumption that an accused is innocent until PROVEN guilty in a court of law. Just because police have arrested someone does not mean that person is guilty. There are too many examples of miscarriages of justice over the years for us ever to assume that an arrest means guilt. Until the person has been either convicted or acquitted, the matter is ‘sub judice’ (Latin for ‘under a judge’). You face serious fines and jail terms for sub judice contempt, as talkback hosts Derryn Hinch and John Laws have learned.

As we explain in The Journalist’s Guide to Media Law, the main areas of concern during the sub judice period include: any indication of prejudgment (whether as to guilt or innocence), publishing potentially inadmissible evidence, publishing witnesses’ statements beyond what is given in evidence in court, revealing criminal records and alleged confessions of the accused, or identification of the accused where it may be an issue in the trial (always assume it will be).

It is no defence to your sub judice contempt charge that others did the same thing (just as it is no defence to a speeding charge to say that you were following a car going 20 km/h faster).

Adverse publicity can even result in a mistrial or even an acquittal, which is the last thing most social media commentators would want in a sex or murder trial.

It is especially difficult for social media users and bloggers untrained in media law to navigate all these rules so the best policy is to avoid comment on any matters before the courts until the justice process has run its course. Leave that to the trained, professional journalists who report with the backing of experienced editors and legal advisers.

© Mark Pearson 2011

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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