Previously, we reviewed the impact of social media on juries and its significant potential to skew the fairness of a legal system based on the principle of a fair trial.
Some might view it as a storm in a virtual teacup. Laws exist, surely, to protect the system from undue bias, and to prevent jurors from effectively taking the law into their own hands by seeking evidence and information outside the court – and therefore outside the knowledge and right of reply of the defendant, the prosecutor, the judge and the court of appeal.
Well, yes, those laws exist – but social media is a new kind of beast. Old laws are not always effective or even applicable in the digital age, as revealed in the Juries and Social Media report, compiled by La Trobe University professors and lecturers for the Victorian Department of Justice.
In the pre-internet days, courts had an effective strategy for dealing with any prejudicial publicity that jurors might access through traditional media.
Firstly and most commonly, courts relied on the law of sub judice contempt, which ensures that all the main players in a court case – including jurors, parties and witnesses – are not improperly influenced or interfered with while the case is pending.
Mostly this meant that those who published material that could prejudice the proceedings could be punished, and this exerted a suitably quelling influence. Traditional publishers (perhaps with the notable exception of Derryn Hinch) were careful to avoid prosecution by simply not publishing problematic material.
As a backup, courts could also issue an order to prevent the publication of prejudicial material in advance of a trial.
However, applying these approaches in a modern context is much harder.
For a start, most people on social media don’t have a background in understanding the relevant laws. They certainly don’t have the system of checks and balances – including editors, fact-checkers, sub-editors and even lawyers – available to most professional journalists. In fact, social media commentators may not even realise such laws exist. As Patrick Keyzer and his colleagues Jane Johnston, Mark Pearson, Sharon Rodrick and Anne Wallace noted in a report last year called Juries and Social Media:
This lack of appreciation of their vulnerability to a prosecution for contempt means that the law of sub judice contempt does not exert a chilling effect on their willingness to communicate about a pending case. Accordingly, there is a far greater probability that sub judice contempt will be committed via social media than via the traditional media.
But there’s a second element of difficulty to enforcing sub judice contempt – and that is that sub judice prosecutions in relation to social media are less likely to be brought, and if instituted, to succeed:
Firstly, while it is possible to isolate a particular newspaper article or a specific television or radio program and find that it is prejudicial, the effect of prejudicial publicity on social media is more likely to be cumulative. That is, it will often be the collective effect of commentary on a case that will constitute the prejudice, rather than any individual comment. If the prejudice cannot be attributed to a particular blog, tweet or post, a prosecution is not likely to succeed.
Another problem courts face is working out whether or not a person on social media is a ‘publisher’ who is sharing material with ‘the general public’:
Material that is disseminated by the mainstream media is clearly ‘published’ for the purposes of contempt law. The same might be said of public blogs, tweets and Facebook pages, if they can be accessed by anyone. Examples include social media use by mainstream media or by police media liaison units. However, the position is less clear in respect of protected social media communications which can be accessed by only approved followers and friends. How many followers or friends constitute publication? Would more than 1000 friends suffice?
Finally, deciding who actually is a ‘publisher’ in digital terms remains a complex and unresolved question:
Clearly, a person who posts or tweets prejudicial material on social media is a publisher (subject to what is said above regarding the extent of their audience), but they may be difficult to identify. They may, for example, post material under a pseudonym. Also, if the prejudicial material concerns a high profile case, hundreds, if not thousands, of prejudicial comments may have been posted on social media sites and prosecuting authorities may be reluctant to single out individual offenders for prosecution. It is also unclear whether a person who affirms, ‘likes’ or otherwise expresses agreement with prejudicial material posted by another thereby becomes a publisher.
Because of these difficulties, prosecutors may try to target intermediaries, such as those who store the content – for example, the Facebook and Tumblr sites themselves, or a user’s Internet content host (ICH) or Internet service provider (ISP). The courts have yet to determine whether these bodies can properly be considered ‘publishers’ in this sense:
It would appear that ICHs or ISPs cannot be liable for contempt unless and until the problematic content is brought to their attention. This is because clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) renders State law ineffective if it subjects an ICH or an ISP to liability in respect of content of which it was unaware or which requires an ICH or ISP to monitor or make inquiries about Internet content hosted by the ICH or carried by the ISP.
Lastly, the issue of jurisdiction remains problematic:
If a publisher has no presence in the court’s jurisdiction, a prosecution is practically impossible. Of course, this problem is not peculiar to social media; it affects any cause of action that involves publication on the Internet.
There’s also the question of what may constitute a publication date. An item in a print newspaper can be seen as having a single, definite publication date – but online material has a longer shelf life.
Something potentially prejudicial published prior to the start of a case is not in contempt as it wasn’t published while proceedings were sub judice, but the material can remain accessible after the trial commences, even if the original material was removed by the publisher. How then is contempt to be assessed or proven?
On balance it would appear that the law of sub judice contempt may prove to be less effective in dealing with prejudicial material disseminated via social media than it has been in dealing with prejudicial material published in newspapers or magazines, or broadcast on television and radio.
What’s a court to do then?
Recently, courts have issued non-publication orders (NPOs) directed at preventing the publication of prejudicial material ahead of a trial, or removing material currently available online (take down orders).
These NPOs have limited effectiveness, however. Although superior courts have inherent jurisdiction to issue NPOs, attempts to use them aren’t always successful:
[…]in two recent cases – Digital News Media Pty Ltd v Mokbel and Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim – orders of this nature were set aside on appeal because the law constrains the circumstances in which they can be made and the form which they can take. Some of these constraints present obstacles to the effective control of what is published on the Internet, including via social media.
Essentially, while the court’s powers can support an order preventing access to existing publications on the internet, NPOs can’t be issued against the whole world. One solution would be to direct an NPO at specific individuals, identifying the prejudicial material which that individual can control. But:
It is unlikely that a court would make a general NPO directed at private individuals in respect of their conduct on social media. This is because there is unlikely to be evidence before the court that would justify an anticipatory order, since information is generally posted by private citizens in an unplanned, random and indeterminate manner. The position may be otherwise if the order is made against a traditional media organisation which has a social media presence.
Another restricting factor is that NPOs can be made “only if they are necessary to prevent prejudice to the proper administration of justice”. How is ‘necessity’ defined in a way that justifies a pre-emptive order of this nature? The necessity test may need to be preceded by a request to the relevant parties to take the offending material offline, and then only pursued if the material is not removed. This doesn’t address, however, the difficulties faced if the material is archived or cached elsewhere.
This material may remain available even when the original webpage has been removed and may just ‘move up the ladder’ in the search hierarchy and take their place. If the court believes that the order is deprived of any practical utility, it cannot be said to be ‘necessary’.
This issue isn’t cut and dried, however: the New South Wales Court of Criminal Appeal suggested that “the mere existence of cached material will not automatically make an order futile; it would depend on whether it had a high priority in a search result.”
A court may also consider it improbable that a juror would search for the material, which may mean an NPO is not seen as necessary.
What it all boils down to is the fact that sub judice, as it applies to social media, has less utility than it does in relation to traditional media. Issues of interpretation, jurisdiction and practical experience indicate existing contempt laws aren’t equal to the technology and its usage.
It therefore seems inevitable that efforts to deal with the problems that prejudicial publicity poses for fair trials will be redirected to the jurors and to the manner in which the trial itself is conducted.
And those ideas are fodder for another post…
Author: Narrelle Harris
Academic Advisor: Professor Patrick Keyzer
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This post is part two of three examining the impact of social media on juries and the law.
- Part One: Social Media and the Fair Trial
- Part Three: Social Media and Juries: Proposed solutions
- Read the Juries and Social Media report
Image: Jury Duty 2 by Andy Price (CC BY-NC-ND 2.0)