2018 in Law: CENSORED
The biggest legal news item in 2018 was one that we cannot talk about.
On 11 December 2018 a person was found guilty of crimes, by the Victorian County Court. Under a suppression order issued by their Chief Judge it is contempt of court to say who was found guilty, or for what crimes. Under the Court’s order, the number of alleged victim(s), number of charges or the nature of the charges cannot be published “within all States and Territories” or via the internet where accessible in Australia.
This has resulted in a battle between the courts and Crown Prosecutors – who want the suppression – and the media who want to publish right now.
Why the Silence?
Rules suppressing the names of victims are common in a number of areas, including sexual offences cases because it can lead to their identification. They are also part of the law in parenting and child welfare cases, where it can identify the child and cause them harm from the notoriety.
There is also the long-standing principle of sub judice, where a case should not be discussed or debated while it is actively before the courts. This is due to the risk that the court, a party, or especially a jury may be put under public or political pressure, or be given information by outsiders that is not accurate or incomplete.
Having a decision-maker that comes to the case with an open mind, and has not already prejudged the case from media coverage or their own prejudices, is a fundamental part of fair due process and the Australian legal system.
As tweeted by Australian lawyer Greg Barnes, “"The lack of regard for fair trials is sickening”.
Suppression orders are less rare in Australia than in the United States, where the media have lashed out at the silence. (This suppression order is still weaker than the United Kingdom’s “super-injunctions”, where there is not only an injunction against comment, but a further court restriction banning any mention that there is even a suppression order. It is believed that there have been at least 12 cases involving these, usually in civil proceedings around defamation and blackmail.)
The Worst-Kept Secret
The Court order hasn’t stopped anyone overseas. Internet analysis reported by Kinship Digital confirms that there were more than 300 000 hits on international media websites in the first 24 hours that identified the offender – and 51% of these were from Australian IP addresses. The identity of who is involved, and what they have now been found guilty of doing, is one of Australia’s worst-kept secrets.
This fact – that the identity and crimes are now an open secret – has infuriated the judge hearing the case and has put international media organisations at risk. Chief Judge Kidd of the County Court of Victoria is already threatening jail sentences for contempt of court, as covered in the Australian Financial Review:
"Given how potentially egregious and flagrant these breaches are, a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment."
Yes, It Applies to You
Most laws apply to where your readership is, not where you publish from. This has long been the case in Australian law – defamation cases are established on where your readers are, and any media agency with an Australian office or representative puts themselves at serious risk of fines, or even jail, by breaking the suppression order. For this reason, at least two major outlets – the New York Times and the Guardian (UK) – are complying with the order.
“The Times is covering the [Name Redacted] story in its U.S. print editions. On advice of our local counsel, we are abiding by the court’s suppression order in Australia because of the presence of our bureau there.”
David McCraw, Vice President/Deputy General Counsel, New York Times
The restrictions on publishing apply to Australian online users – including those on Facebook, Twitter, Instagram and other social media. Commenting on Facebook is a publication like any other. In the age of internet commentary and articles it is increasingly difficult to prevent information spilling in to the media and social media. The balance between protecting the justice system, and open disclosure on the internet right now, is a difficult one - there is no reason to believe that the suppression order will not be lifted once all proceedings are complete.
However, it has had some ridiculous outcomes. We cannot link to the Wikipedia article regarding the offender because the very first sentence of that article breaches the suppression order.
This case is not over. Media outlets have tried multiple times to lift the suppression orders, and the sentencing of the offender is scheduled for February 2019. The offender’s legal team are likely to appeal after this time.
The “silence” around this case will continue well in to 2019.