The internet deserves a special place in media suppression laws
An article entitled “Law has been left behind by new media” appeared the “The Australian” newspaper today and complains that jurors have access to internet fora when the rest of the media are banned for fear of prejudicing a trial. I’d just like to take up the authors, Peter Faris and Greg Barns, on a couple of issues.
Firstly, fora operators in the UK can still be charged with contempt of court for making comments relating to an ongoing trial. One such example is Betfair, who have explicitly stated that persistent discussion of the current race-fixing trial on its forum will result in offender’s details being passed on – should there be a subsequent ‘contempt of court’ case raised by the comments. This may be a useful template for Australian legislation.
Secondly, the comments of Justice Murray Kellman (in relation to suppressing media identification of AFL players involved in a drugs scandal despite their naming on the internet) seem reasonable to me. A similar distinction between the authority of internet chatrooms and print media is made in academic institutions. Material referenced to most internet sites, save those of large institutions such as the UN, is akin to repeating gossip heard down the local pub. Nearly anyone can start a website or comment on a forum.
Similar issues have been raised with regards to defamation of character – namely, in the instances of online defamation. Much case law has laid down the following principle:
The web host, ISP or even owner/administrator of a site cannot be held responsible for defamatory comments made within a site operated by that person or company, were the comments in question not made by them. However, once the person or organization with the ability to remove or amend the comment in question is made aware of it, and the injury which is likely to occur as a result of it (e.g. in this instance, a mis-trial etc), THEN they become liable: once they are aware of it, they should remove it.
Therefore, whatever the authors of this article believe to be true, the law does still apply to online fora in any case, at least in most commenwealth jurisdictions, however, without a clear person to punish (e.g. anonymous postings) it lies only as the publishers responsibility once they become aware of the offending statement, and do nothing about it. (this purple text has been added by Rob Scott).
Without further evidence of qualification or authority, there is no comparison with the influence of articles printed in respected newspapers. Newspapers, radio transcripts and television scripts are admissible material in academic papers -wikipedia is not. Whilst there may be room for further-reaching legislation to allow suppression of chatroom gossip and internet fora, at some point it has to be realised that an article in “The Australian” is far more damaging than hearsay and gossip whether in private or on the web.
Congratulations Linda on a well worked, well argued piece. I have always understood that even what one said had to be justifiable and what the courts term “fair comment”, lest one fall into the trap of slandering someone.
Written words are published, whether in a letter which falls into someone’s (not intended) hands or on a web forum, site, blog, chat room or message service. And I was always taught that ANY publication, be it a news medium or a private matter, was subject to the libel, decency and other laws.
The Times had a comment on the issue. Here’s an excerpt:
“Lord Falconer of Thoroton recently suggested that newspapers and broadcasters should go back and delete contemptuous material from their online archives if a matter they have reported on goes to trial. But would it work? Material from online archives can easily be copied on to other web pages. To get it removed the Attorney might have to chase it as it leapfrogs from website to website. But removal is nigh on impossible. Invisible copies are stored elsewhere in cyber-caches, and they would remain even if a broadcaster deleted material from its archive. There is also nothing to stop anyone abroad setting up Contempt.com and publish away happily beyond the reach of our law.
Is it possible for the Attorney General to keep a finger in the cyberspace dyke? Many criminal lawyers believe it isn’t and that it’s time to do away with an ineffective contempt law. Jurors, even if they are cyber savvy, should be trusted to do what they are charged to do by the judge: listen to the evidence and bring in a verdict based on it alone. If that doesn’t happen, our contempt law itself risks being held in contempt.
Clive Coleman is a barrister and the presenter of Radio 4’s Law in Action”