Contempt of Court: Report (html)

14. Take-down orders

Overview

• Courts can order a person to remove material that has been published (‘take-down orders’).

• Take-down orders can limit the harm caused by breaches of restrictions on publication. They may be more useful in the online age as it becomes harder to prevent publication.

• Take-down orders require the removal of material by online intermediaries and owners of public websites where third parties can comment.

• The Open Courts Act should state the powers of courts to order that publications be taken down and the procedure for applying for such orders.

• Since they restrict freedom of expression, such orders should only be made when necessary and no other measures can be taken.

• These powers should be available to take down material breaching a restriction on publication or on the grounds currently in the Open Courts Act in respect of suppression orders.

• A court should be able to make an interim take-down order in urgent cases.

The purpose of take-down orders

14.1 A ‘take-down order’ is made by a court requiring a person to remove material published in print or online. Unlike other kinds of restrictions on publications discussed in this report, take-down orders apply only to those named in the order and require material to be removed rather than restraining what can be published.

14.2 The purpose of a take-down order is to limit the harm caused by a breach of a restriction on publication. It is a remedy rather than a form of punishment.

14.3 Take-down orders can be used to require material to be taken down that was lawful when first published but now breaches a restriction on publication (for example, because a trial is now pending). In Chapter 13, the Commission recommended the law should be changed to make clear there was no liability for material that was lawful when first made available to the public.

14.4 Take-down orders are also used to remove material proved to be in breach of a restriction on publication. For example, if a publication causes a substantial risk to the right to a fair trial (sub judice contempt), the person can be punished and ordered to take down the publication.

Existing powers to make take-down orders

14.5 The Supreme Court of Victoria and the County Court of Victoria can make take-down orders under their powers to control court proceedings and protect a fair trial.^[1] These powers and the grounds on which they are exercised are not set out in legislation.

14.6 A suppression order made under the Open Courts Act 2013 (Vic) could also operate as a take-down order, on the basis that ‘publication’ is interpreted as continuing for as long as the material is made available.^[2] Therefore, a suppression order made under the Act may require material maintained on the internet to be taken down.^[3]

14.7 As noted in the consultation paper, courts consider a number of factors in deciding whether a take-down order is needed:

• when the original publication was published and the currency of the material

• whether the article is forced upon a visitor to the website

• the permanency of the publication and whether a cached version would be available after the publication is taken down

• if the material is taken down from a more reliable website subject to the take-down order, whether more obscure publications may be given greater prominence in a search result

• the likelihood that jurors, subject to criminal sanction, will undertake research about the trial and will comply with jury directions

• the impossibility of identifying all websites which might have published the material, some of which would be unidentifiable or controlled from overseas.^[4]

Responses

14.8 The consultation paper asked whether a court should be able to make orders for online materials to be taken down.^[5] Most stakeholders supported courts having such a power.^[6]

14.9 The County Court said it used take-down orders to protect its proceedings and they ‘provide a speedy resolution to issues as they arise’, and that this ‘ultimately avoids complex and costly contempt proceedings’.^[7] The Commercial Bar Association Media Law Section Working Group (CommBar—Media Law Section) agreed that, in an appropriate case, such orders could be ‘a useful remedy’.^[8]

14.10 The MinterEllison Media Group opposed take-down orders because they were not needed to prevent jurors from being prejudiced and were ineffective in the internet age. This was evidenced by cases where courts held that material archived online did not pose a substantial risk to a fair trial.^[9] Further, such orders had ‘significant and wide-ranging implications’ for media organisations, ignored the value of public access of historical information, impinged on press freedom, and was incompatible with freedom of expression.^[10]

14.11 Australia’s Right to Know coalition (ARTK) submitted that the law on take-down orders was clear and did not require reform. However, it noted that take-down orders will in many cases be ‘futile or of very limited utility’ as they do not bind overseas entities publishing the same information, which remains accessible to all.^[11]

Commission’s conclusions: take-down orders are useful

14.12 Courts should retain the power to make take-down orders. Despite the challenges posed by modern media technology including the internet, there are times when that power will be useful.

14.13 If a court became aware of published material putting a fair trial at risk which had not yet come to the attention of jurors, it would be more effective and proportionate to require the publication be taken down than to punish the publisher. As discussed in Chapter 10, such powers would usually be used only if the issue could not be resolved through informal communication from the court.

14.14 There will need to be a greater range of remedial measures available to address the difficulties of restraining publication in the online age (see Chapter 10).

14.15 Take-down orders are also needed so that, if a person is convicted of breaching a restriction, there is clear provision for making an order requiring the material to be removed.

14.16 It may be necessary to require the removal of material by online intermediaries or the owners of websites on which third parties can comment. They should not be liable for the material itself, only for failing or refusing to take down the material pursuant to a take-down order. (See Chapter 13.)

A statutory take-down order scheme

14.17 The consultation paper asked if there should be legislation to govern take-down orders.^[12]

14.18 The Contempt of Court Act 2019 (NZ) gives courts statutory powers to make take-down orders.^[13] Courts can make a take-down order where a person has been convicted of publishing certain criminal trial information,^[14] as well as in respect of statements that carry a real risk of undermining public confidence in the judiciary or a court.^[15]

14.19 Under that Act, an online content host can be ordered to take down material provided the infringing material is under the content host’s control.^[16] As discussed in Chapter 13, such powers may sometimes be more effective than restrictions on publication. It may be in many cases more efficient and effective to order an online intermediary to take down the offending material than to pursue an unknown publisher.

Responses

14.20 Stakeholders who supported take-down powers did not agree on whether there was a need for legislation to govern take-down orders.

14.21 The Children’s Court, the Criminal Bar Association, the Director of Public Prosecutions (DPP) and Victoria Legal Aid (VLA) supported the take-down power being placed in legislation.^[17] The DPP submitted this would promote clarity and certainty in the law, and that necessity should be the ‘overarching consideration’ for granting a take-down order.^[18]

14.22 On the other hand, ARTK submitted that legislation was not needed because the law was already clear, and the CommBar—Media Law Section considered existing powers were adequate.^[19] It stated that, before any legislation was introduced, further scrutiny was needed of statutory take-down order schemes in copyright law in other jurisdictions.

14.23 If take-down orders were provided for in a statutory scheme, the CommBar—Media Law Section noted there should be appropriate safeguards,^[20] and ARTK supported making it plain that a separate application for a take-down order would need to be made.^[21]

Commission’s conclusions: establish a legislative take-down order scheme

14.24 For the purposes of consistency, accessibility and clarity in the law, legislation should set out the courts’ power to make take-down orders.

14.25 Under the legislative provisions, courts should be able to order material to be taken down on the same grounds and subject to the same tests as for suppression orders under the Open Courts Act.^[22] The legislation should also empower the courts to order material to be taken down after it has been proved to breach a restriction on publication. This would include restrictions under the proposed Contempt of Court Act as well as those in the Judicial Proceedings Reports Act 1958 (Vic) which the Commission is recommending should be retained and moved to the Open Courts Act.^[23]

14.26 These powers should extend to online intermediaries or the owners of public websites where third parties can post material. As discussed in Chapter 13, they should not be liable under the relevant restrictions on publication. Instead, they could be required to take down such material where necessary in the circumstances.

14.27 A take-down order should only be made against a party with the capacity to do so. For example, if a person publishes a comment on a public website, they may not be able to delete the material. It is unfair to impose liability when the party cannot comply, and this should be expressed in the legislation.

14.28 Some stakeholders were concerned that take-down order powers may be used unnecessarily. For example, take-down orders should be used rarely, if at all, for archived online materials. Further, in cases of widespread republication, a take-down order may be futile.

14.29 These concerns are reflected in the courts’ current approach to its powers. As with suppression orders under the Open Courts Act,^[24] these are factors for assessing whether such orders are necessary, which can also involve considering whether no other measures are available to avoid the harm.

14.30 The Commission does not recommend a change to this sensible approach. Instead, the same factors should apply to take-down orders, so that they can only be ordered when necessary. The existing approach under common law means that such orders are unlikely to be necessary for archived material.

14.31 The most convenient location for these powers would be the Open Courts Act, given its similar subject matter. The exercise of this power would also be governed by the same tests as those currently in the Open Courts Act with respect to suppression orders—namely, that the order is necessary and, where the order is needed to protect the administration of justice, no other measures can avoid the harm.^[25] This would reflect the current approach.

14.32 A person should be liable to a penalty if they fail to remove material from public access within a reasonable period of time.

14.33 A breach of a take-down order involves similar harms to offences such as breaching a suppression order under the Open Courts Act. Accordingly, the penalties for breaching a suppression order and for non-compliance with a take-down order should be consistent.

14.34 As take-down orders would be separate from suppression orders, a new offence involving non-compliance with a take-down order would be needed.

14.35 Take-down order powers are likely to be relevant for restrictions on publications in other Acts beyond the scope of this inquiry. If these proposed reforms are implemented, it would make sense to consider whether they should be extended to other restrictions on publication related to court proceedings.

Recommendations

116 The Open Courts Act should be amended to provide that the court can order material to be taken down by a publisher, an online intermediary or the owner of a public website, including where the online platform enables a third party to make comment, where the court is satisfied:

• the grounds specified in sections 18 and 26 of the Open Courts Act are met, or

• the material breaches a restriction on publication in the Open Courts Act, the proposed Contempt of Court Act or those in the Judicial Proceedings Reports Act that should be retained, and

• the order can reasonably be complied with.

117 The Open Courts Act should also be amended to provide that a failure to comply with a take-down order within a reasonable time is an offence with a maximum penalty of two years imprisonment and/or 240 penalty units for an individual, and 1200 penalty units for a body corporate.

Who should be able to apply for an order?

14.36 The consultation paper asked who should be responsible for making applications for take-down orders.^[26]

14.37 The Children’s Court and the CommBar—Media Law Section generally agreed that anyone with a sufficient interest should be able to apply for a take-down order,^[27] including parties. The Criminal Bar Association stated that the parties as well as police should be able to apply, and that consideration should be given to permitting non-parties with a sufficient interest to apply.^[28] The Criminal Bar Association also supported the courts being able to seek such orders on their own motion, as did VLA.^[29]

14.38 Under the Open Courts Act, suppression orders may be made by a court or tribunal on its own motion or on the application of a party or any person with a sufficient interest,^[30] an approach which the DPP said should be mirrored for take-down orders.^[31]

Commission’s conclusions: the ability to apply for a take-down order

14.39 The parties in a matter, as well as anyone with a sufficient interest in the matter, should be able to apply for a take-down order. A court or tribunal should also be able to make an order on its own motion. This would promote consistency with suppression orders and provide appropriate protection to all those involved in or affected by a proceeding. If, as recommended above, these powers are located in the Open Courts Act, the existing provisions could also be extended to incorporate take-down orders.

14.40 These parties should also have the ability to apply for interim take-down orders.

Recommendations

118 The Open Courts Act should be amended to provide that a court or tribunal may make a take-down order:

• on application by a party to a proceeding or any other person considered by the court or tribunal to have a sufficient interest in the making of a take-down order, or

• by the court or tribunal of its own motion.

Interim take-down orders

14.41 The consultation paper asked whether applications for take-down orders should be able to be determined on an adversarial basis, with both parties present, or on an ex parte basis, which would not require both parties to be present.^[32] Ordinarily procedural fairness requires parties to be heard on the making of orders.^[33]

14.42 Under the Open Courts Act, the court may make an interim proceeding suppression order on an ex parte basis before it determines the merits of an application after hearing from both parties.^[34]

14.43 This allows a court to prevent the publication of sensitive material in circumstances of urgency when it may be necessary to proceed with only one party present.^[35]

Responses

14.44 Some stakeholders supported the making of orders on an ex parte basis in appropriate circumstances.

14.45 The Children’s Court submitted that the application for a take-down order should operate in the same way as an application for an interlocutory injunction. That is, applications may be conducted on an ex parte basis ‘if the court considers it sufficiently urgent’.^[36]

14.46 The CommBar—Media Law Section submitted that such applications should ordinarily be determined on an adversarial basis but ex parte applications might sometimes be appropriate in urgent cases (for example, a publication posing an imminent threat to a person’s safety).^[37]

14.47 The Criminal Bar Association submitted that the interim order provisions in the Open Courts Act described above could also be adopted in respect of take-down order applications.^[38]

14.48 However, the DPP submitted that take-down order applications should be conducted on an adversarial basis, given that the determination affects public access to information.^[39]

Commission’s conclusions: interim take-down orders in urgent cases

14.49 Ordinarily the court will determine a take-down order on an adversarial basis. However, the option to make an interim take-down order should be available in circumstances of urgency, although it is likely to be rarely exercised.

14.50 The Open Courts Act already provides for such a power to make an interim order, and should be extended to take-down orders. As with final take-down orders, anyone with sufficient interest should be able to apply for an interim take-down order.

Recommendation

119 The Open Courts Act should also be amended to provide that if an application for a take-down order is made, the court or tribunal may make an interim take-down order.

120 The Open Courts Act should be amended to provide that the court may make:

• a final take-down order after hearing from both parties

• an interim take-down order without notice to the parties, in urgent cases.

1. The Supreme Court has inherent power to make such orders: DPP (Cth) v Brady [2015] VSC 246 [75], (2015) 252 A Crim R 50; News Digital Media Pty Ltd v Mokbel [2010] VSCA 51, (2010) 30 VR 248 [63]–[67]. The County Court is given the same powers to ensure a fair proceeding under the Open Courts Act 2013 (Vic) s 25.

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2. News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 [63]–[67]; Judicial College of Victoria, ‘6.3 Broad Suppression Orders’, Open Courts Bench Book (Online Manual, 6 February 2019) [16]–[20] <http://www.judicialcollege.vic.edu.au/eManuals/OCBB/index.htm#67746.htm> .

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3. Open Courts Act 2013 (Vic) ss 3, 17, 26. In this context, the Commission is recommending in Chapter 13 that there be no liability where the material did not breach a restriction on publication at the time it was initially published.

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4. See, eg, Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97, (2016) 93 NSWLR 384 [83]–[90]; DPP (Cth) v Brady [2015] VSC 246 [75]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125, (2012) 83 NSWLR 52 [74]–[79]; News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 [74]–[77]; R v Rich (Ruling No 7) [2008] VSC 437 [20]–[22].

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5. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 57.

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6. Submissions 14 (Children’s Court of Victoria), 18 (Commercial Bar Association Media Law Section Working Group), 20 (Criminal Bar Association), 28 (Director of Public Prosecutions), 31 (County Court of Victoria); Consultation 6 (Victoria Legal Aid).

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7. Submission 31 (County Court of Victoria).

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8. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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9. The MinterEllison Media Group cited Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97; News Digital Media Pty Ltd v Mokbel [2010] VSCA 51; AW v The Queen [2016] NSWCCA 227.

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10. Submission 23 (MinterEllison Media Group).

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11. Submission 27 (Australia’s Right to Know coalition).

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12. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 57(a).

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13. Contempt of Court Act 2019 (NZ) ss 9, 24, sch 2. Schedule 2 amends the Criminal Procedure Act 2011 (NZ) to include powers to order the take-down of details of a defendant’s previous convictions and other trial-related information. At the time of writing, the Contempt of Court Act 2019 (NZ) had not yet come into effect.

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14. See the discussion in Chapter 10 about sub judice contempt. In New Zealand, sub judice contempt has been replaced by the statutory offence of publishing information that carries a risk of prejudicing an accused’s right to a fair trial in a criminal proceeding: Contempt of Court Act 2019 (NZ) s 7.

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15. See the discussion in Chapter 11 about scandalising contempt. In New Zealand, scandalising contempt has been replaced by the statutory offence of publishing a false statement about a judge or court: Contempt of Court Act 2019 (NZ) s 24. This section allows courts to order this kind of offending material to be taken down if the case is proved on the balance of probabilities, rather than requiring that a person has been convicted of an offence,

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16. Contempt of Court Act 2019 (NZ) ss 9(1), 24(1), (4), sch 2, inserting s 199D(2).

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17. Submissions 28 (Director of Public Prosecutions), 20 (Criminal Bar Association), 14 (Children’s Court of Victoria), 6 (Victoria Legal Aid).

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18. Submission 28 (Director of Public Prosecutions).

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19. Submissions 18 (Commercial Bar Association Media Law Section Working Group), 27 (Australia’s Right to Know coalition).

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20. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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21. Submission 27 (Australia’s Right to Know coalition).

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22. Open Courts Act 2013 (Vic) ss 18, 26.

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23. See Chapter 12. The Commission is recommending that the restriction on publication of information in relation to directions hearings and sentence indications, and the prohibition on identifying victims of sexual offences, should be retained.

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24. Open Courts Act 2013 (Vic) ss 18, 26.

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25. Ibid.

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26. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 57(c).

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27. Submissions 14 (Children’s Court of Victoria) (with leave of the court), 18 (Commercial Bar Association Media Law Section Working Group).

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28. Submission 20 (Criminal Bar Association).

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29. Ibid; Consultation 6 (Victoria Legal Aid).

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30. Open Courts Act 2013 (Vic) s 19. This would include the prosecution, the defence, media organisations, as well as the court of its own motion.

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31. Submission 28 (Director of Public Prosecutions).

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32. Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 180, Question 57(d).

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33. For example, courts are required to give notice to any ‘relevant news media organisation’ before making a final suppression order: Open Courts Act 2013 (Vic) s 11.

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34. Ibid s 20.

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35. Victoria, Parliamentary Debates, Legislative Assembly, 27 June 2013, 2419 (Robert Clark, Attorney-General).

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36. Submission 14 (Children’s Court of Victoria).

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37. Submission 18 (Commercial Bar Association Media Law Section Working Group).

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38. Submission 20 (Criminal Bar Association).

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39. Submission 28 (Director of Public Prosecutions).

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