Contempt of court – still relevant in the age of new media

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Special Counsel

In the age of Twitter, Facebook, and Instagram, the idea that all possible information might not be immediately made available to the world at large seems quaint. Indeed, the first instinct of many people on reading that a court has suppressed an accused’s name, or some information about the offending, is to search online to see if they can find out the details they were told they cannot have.

A recent case from Australia may cause reporters and media organisations to take another look at their systems where they allow information to be published to very tight timeframes, and to give such actions a second thought.

The Supreme Court of Victoria has just fined Yahoo!7 (Yahoo) $300,000 for contempt of court, relating to an online news article which caused a Melbourne murder trial to be aborted last year.

Yahoo’s reporter, Krystal Johnson, wrote an article during the course of the trial which was published online. Information was included in the article which was not, and would not be, available to the jury. It was suppressed information. The judge in the contempt hearing noted that:

“For centuries, a ‘golden rule’ has been observed by journalists and publishers that while proceedings are being tried before the courts, information that is not admitted as evidence before the jury is not reported or published to prevent the possibility that the jury is influenced by prejudicial, extraneous, or irrelevant information. The rationale is well understood.”

The judge went on to review the relevant principles to consider, including:

  • contempt of court involves an interference with the due administration of justice;
  • the concern is the risk created by the publication; it is unnecessary to prove that a juror or potential juror actually read or heard the prejudicial material;
  • the test for liability is whether the published material has, as a matter of practical reality, a real and definite tendency to prejudice particular legal proceedings or interfere with the due administration of justice in the particular proceeding; and
  • it is not necessary to show there was an intention to interfere with or obstruct the administration of justice.

In this case, the judge decided the article “clearly had a real and definite tendency to prejudice the accused’s trial”, and that both Yahoo and Ms Johnson were in contempt of court.

The judge was particularly critical of the fact that while Yahoo had processes in place for the vetting of articles, including approval by an editor and the availability of legal advice, these processes could be circumvented and, as here, an article could be uploaded without any secondary check. He noted there was nothing to show that the more strenuous practice of checks that Yahoo claims to have now put in place would themselves be followed.

This case serves as an important lesson that contempt of court isn’t just a relic of the past, relevant only to traditional media. Every journalist and media organisation who wants to be able to claim the rights associated with that position also needs to meet the responsibilities they have. To ensure the administration of justice, this means complying with court suppression orders, and, for a jury trial, only reporting the information that is put to the jury.

“Citizen journalists”, bloggers and tweeters are also caught by the rules relating to contempt of court, and the decision is a reminder that evolving technology and social media platforms must still follow long established legal principles. The courts in New Zealand would follow the same approach, and use the inherent power to punish for contempt of court to safeguard the administration of justice.

The $300,000 fine for Yahoo, and a two-year good behaviour bond for Ms Johnson, shows the courts will continue to treat any inappropriate actions by the media very seriously.

For more information, please contact Jonathan Forsey.

Disclaimer: the content of this update is not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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