Contempt of Court: Consultation Paper (html)

7. Contempt by publication (1)—sub judice contempt

Introduction

7.1 This chapter considers contempt by publication which interferes with or prejudices legal proceedings. This manifestation of contempt is also known as sub judice contempt. Today, the law of sub judice contempt is facing new challenges which not only test the technical and operational adaptability of the offence, but also whether the law and the assumptions on which it is based, are compatible with ensuring a fair trial in the 21st century.^[1]

7.2 The law of sub judice contempt operates to restrict the publication of material which has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass legal proceedings pending in court at the time of publication.^[2] Sub judice means ‘under judicial consideration’.

7.3 Sub judice contempt aims to ensure a fair trial by quarantining jurors from extraneous information. As stated by Justice Dixon in DPP v Johnson & Yahoo!7 (Yahoo!7) the purpose of the law of sub judice contempt:

is to ensure that the actions of those involved, whether directly or indirectly, with any proceeding that is subject to adjudication in the courts do not interfere with or compromise the administration of justice. Conduct by a publication that interferes with the due administration of justice by materially prejudicing the fair hearing of a criminal trial before a jury is classified as sub judice contempt of court.^[3]

7.4 The law of sub judice contempt also seeks to ensure a fair trial by:

• reinforcing the rules of evidence which ensure that the material before a jury to make their decision is relevant to the charge being heard and to uphold the assumption that the accused person is innocent until proven guilty^[4]

• protecting the integrity^[5] of the trial itself and the efficient running of proceedings^[6]

• ensuring justice is ‘seen to be done’^[7] by avoiding the risk that decisions appear to the public and the parties involved to be influenced by the media.^[8]

7.5 Sub judice contempt engages with the principle of open justice, which requires that the administration of justice by courts takes place in public.^[9] Sub judice contempt does not restrict the publication of material which is a fair and accurate report of court proceedings. The law only restricts the publication of extraneous information which may be prejudicial until court proceedings are complete.^[10]

7.6 Sub judice contempt limits the principle of freedom of expression, which is provided ‘partial protection’ by common law and rules of statutory interpretation.^[11] As the High Court has recognised, freedom of expression must sometimes be restrained in order to protect other aspects of the public interest, such as the proper administration of justice.^[12]

7.7 However, the courts have recognised that the summary power to punish for sub judice contempt should be exercised only in exceptional circumstances.^[13] Where there is significant public interest in the matter being discussed, the right to a fair trial may be overridden.^[14]

7.8 The balancing of the principles of a right to a fair trial, open justice and freedom of expression, means the law of sub judice contempt must be flexible enough to adapt to novel types of publication and circumstances which might interfere with a fair trial.^[15] However, this flexibility also creates uncertainty and inconsistency in how the law is defined, and in its scope and application.

7.9 The law of sub judice contempt is underpinned by the following assumptions:

• Media publicity can influence jurors by diverting them from the evidence before them, contributing to preconceptions which will make them partial and unreliable when making their decision.^[16]

• These preconceptions and prejudices will survive the length of a trial and deliberations despite judicial directions.^[17]

• The public accesses news information through traditional media such as newspapers, television and radio broadcasts^[18] and such news information can be controlled, ‘taken-down’ or prevented from being published.^[19]

7.10 Further, the law of sub judice contempt presupposes that jurors are more susceptible to media publicity than are judges or magistrates (judicial officers) who are considered less likely to be influenced or biased. This perception originated from a distrust held by a ‘formally educated and socially privileged judiciary’ about the ability of the rest of the community to make a decision based on the information before them.^[20]

7.11 There are conflicting views as to the validity of this assumption but the weight of authority^[21] and the operation of the law of sub judice contempt appear to support the view that judicial officers are not susceptible to the same extent as jurors.^[22]

7.12 The validity of these assumptions and the operation of sub judice contempt are, however, being questioned in the context of the 21st century.

7.13 New media have significantly transformed the media landscape so that traditional distinctions between print, broadcast and online news are now dissipating. News is increasingly accessed online through digital platforms such as Facebook, Twitter and Google,^[23] publications are permanent, immediate, accessible and may be published and disseminated outside the jurisdiction not just by media outlets, but also by members of the general public who may be unidentifiable.^[24]

7.14 These issues are not new. In 1974, the United Kingdom’s Committee on Contempt of Court considered the advent of television and the need for contempt of court laws to adapt to ‘modern conditions’:

The ambit and power of the press have increased enormously. It is only fair to say that this power is on the whole used responsibly, but the potential dangers to the administration of justice are obvious, and new forms of communication such as television, can make a powerful impact on the public.^[25]

7.15 The ‘ambit and power’ of the media in today’s context of online news and social media have not only affected the volume of information that can be published by a wider group of individuals, but have also changed the way news information is accessed and consumed. In turn, the influence of the media on individuals may be of a different nature to when the news was confined to a newspaper headline or television bulletin. These changes not only impact the technical operation of sub judice contempt, but also the court’s ability to enforce the law and protect jurors of the 21st century.^[26]

7.16 Conflicting judicial opinion and research about the influence of media publicity on jurors and their decision-making capabilities also raise questions about the necessity of quarantining jurors from extraneous information and whether they can be trusted to make decisions based only on the admissible evidence before them.^[27]

7.17 Accordingly, at the heart of this chapter are the questions of whether or not the assumptions on which sub judice contempt rest are still valid, and whether the law is appropriate for, and is capable of adapting to, the modern age.

7.18 This chapter begins by considering a number of technical and operational issues with the law of sub judice contempt which have been the subject of extensive review, and some reform, in other jurisdictions.

7.19 The larger question of whether the law of sub judice contempt can still operate effectively to ensure a fair trial in the modern media age is then considered. A number of options for reform are then discussed and finally some questions for consideration are set out.

Issues with sub judice contempt

The tendency test

7.20 The test for sub judice contempt is set out in the High Court case Hinch v Attorney-General (Victoria) (Hinch):

that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice. The impugned material must exhibit a real and definite tendency to prejudice or embarrass pending proceedings …^[28]

7.21 The courts have held that the tendency of the publication to prejudice proceeding is assessed at the time of publication alongside a consideration of the nature of the publication and other circumstantial factors.^[29] These factors include:

• the content of the publication^[30]

• the nature of the proceedings that may be affected^[31]

• the profile of the person making the statement or publishing the material^[32]

• the size of the publication^[33] and the audience^[34]

• the stage of the legal proceedings^[35]

• the time between publication and the legal proceedings^[36]

• whether prejudicial material has already been published.^[37]

7.22 It appears that directions given to a jury to ignore media publicity are not considered a relevant consideration when determining the tendency of a publication to prejudice an accused’s right to a fair trial. This is despite the ‘overwhelming judicial experience’ that juries follow such directions. As stated by Justice Lasry in Yahoo!7, to take account of directions as disproving the publication’s tendency to prejudice would:

necessarily significantly undermine the law’s protections of the integrity of the jury process. It remains essential that the media respect the restraints imposed upon them by the law of contempt.^[38]

7.23 It has also been stated that the fact a trial was aborted because of prejudicial media coverage is not a relevant consideration when determining whether that publication is contemptuous. The reason for this is that a judge’s consideration of whether or not to abort a trial does not involve hearing from the publisher of the prejudicial publication and the relevant issues are different.^[39] However, the Victorian Supreme Court has stated that the fact a trial was aborted as a result of the prejudicial article will be considered in relation to the penalty.^[40] For example, in R v Spectator Staff, the fact the news article, which included material which had been presented the jury’s absence, had led to the discharging of a jury was considered when sentencing the respondents.^[41]

7.24 The tendency test has been formulated by the courts in different ways, with the differing formulations being used interchangeably.^[42] These formulations include that:

• The publication must create a substantial risk of serious interference.^[43]

• The publication must reveal as a matter of practical reality a tendency to interfere with the due course of justice in a pending case.^[44]

• The publication’s interference with the proceedings is likely.^[45]

7.25 These different formulations have been criticised for being uncertain and creating a broad scope of liability.^[46]

7.26 In Hinch Chief Justice Mason stated that the ‘substantial risk’ approach provided an appropriate balance between the administration of justice and freedom of expression.^[47]

7.27 The law reform commissions of New South Wales and Western Australia also considered that the ‘substantial risk’ test was an appropriate test, being more precise, allowing the media greater certainty about what might constitute sub judice contempt, creating a higher threshold for liability and therefore not excessively infringing on freedom of expression.^[48]

7.28 The New South Wales Law Reform Commission recommended a statutory formulation of the test comprising two elements:

1) that there is a substantial risk jury members or witnesses will become aware of the publication

2) that there is a substantial risk jury members or witnesses will recall the content of the publication at the relevant time.^[49]

7.29 This approach reflects research indicating that a juror’s recall of pre-trial publicity is piecemeal, whereas their recall of in-trial publicity is more prominent and therefore has a greater tendency to prejudice.^[50]

7.30 As another way to help clarify this area of the law, the Australian,^[51] New South Wales,^[52] and Irish^[53] law reform commissions considered introducing a prescribed list of the types of statement that may be capable of creating a substantial risk of prejudice to a fair trial.

7.31 The identified statements reflect the common types of statement found to constitute sub judice contempt at common law. For example:

• statements as to the accused’s guilt or innocence^[54]

• prior convictions^[55]

• confessions or admissions by the accused^[56]

• statements about the character of the accused^[57]

• opinions about the quality of the case^[58]

• interviews with witnesses^[59]

• photographs or video footage of an accused where it is reasonably probable that identification will be an issue at trial.^[60]

7.32 However, the New South Wales Law Reform Commission (the NSW Commission) noted that a prescriptive list, even if non-exhaustive, may restrict freedom of speech by identifying certain types of statement and information as prejudicial when such statements may not always have that effect.^[61] In addition, the NSW Commission noted that such a list could also preclude some relevant categories, thereby allowing the media to escape liability.^[62] Accordingly, the NSW Commission dismissed this approach on the basis it would be inflexible and would potentially complicate and confuse the law.^[63]

7.33 These concerns are particularly relevant to new media, whereby certain publications may have a greater tendency to interfere with proceedings based on the way in which they are published and disseminated.^[64] As the New Zealand Law Commission (NZ Commission) identified:

the advent of the internet and the consequential durability and potential reach of any publication now pose significant challenges for the Court when applying the “real risk” test. Some internet-based publications and social media posts go viral. Consequently they have much greater potential impact than those with more limited circulation or dissemination.^[65]

The definition of ‘publication’

7.34 In order for there to be sub judice contempt, an act of ‘publication’ must occur. The courts have held that the act of publication occurs when the information ‘is made available to the general public’ or to ‘a section of the public which is likely to comprise those having a connection with the case’.^[66]

7.35 This type of publication traditionally occurs when information is published by print and broadcast media outlets, but also applies to online publications such as a tweet or blog where there is a sufficiently wide audience.^[67]

7.36 Publication can also include actions such as giving a speech or an interview to a journalist, where it is foreseeable that information will be communicated to a wider audience.^[68]

7.37 It is unclear whether a social media post communicated to an individual or private group of people would satisfy the definition of publication, as well as whether new forms of media are captured, such as YouTube videos.^[69]

7.38 Traditionally, the act of publication of print or broadcast material is taken to occur at the time^[70] and place the material was first made available to the public or a section of the public.^[71] By this definition, publication is a single act which occurs only when the material was first made available.^[72]

7.39 However, there is now support for the view that the publication of information online is taken to occur for as long as the information is available, regardless of whether or not the material is accessed.^[73] By this definition, ‘publication’ is a ‘continuing act’ for as long as the material is available.^[74]

7.40 This view was stated in the 2010 Victorian Court of Appeal case News Digital Media v Mokbel (Mokbel) in which the nature of online publications and their potential to prejudice legal proceedings were under consideration.^[75]

7.41 In this case, the court identified the unique characteristics of online publications in that they are permanent,^[76] lack a specific location,^[77] are still easily accessible by searching once archived,^[78] and can be copied and published on other websites outside Victoria.^[79]

7.42 The permanence of an online publication means that once published the material continues to be available to a juror or potential juror. Regardless of whether or not a juror or potential juror has accessed it, the court process is exposed to risk.^[80]

7.43 This definition of ‘publication’ as a continuing act gives rise to two issues for publishers:

• Online publishers could be liable for archived material published before legal proceedings have commenced as well as material published after legal proceedings have concluded if the accused person is charged with another crime or there is an appeal.

• Online publishers may become liable for material published which is relevant to proceedings in another jurisdiction, a problem that also applies to broadcast or print publications made available in other jurisdictions.

7.44 The NSW Commission considered the definition of ‘publication’, and the issue of when ‘publication’ is taken to occur. The NSW Commission, referring to the law as it was in 2003, stated:

It would seem, as a matter of principle, that publication of material is taken to occur at the time of original publication, rather than regarded as a continuing process. Otherwise, the sub judice rule would potentially operate too harshly against publishers …

Under the current law, every distribution of written or printed material and every broadcast is treated as a separate act of publication occurring at the time of the relevant distribution or broadcast.^[81]

7.45 In light of the further development of online news and social media since the NSW Commission’s report, it is arguable that a change of view is needed to accommodate the permanent and accessible nature of online archived news, as reflected in Mokbel.

7.46 In this context, the Law Commission of England and Wales, in its 2012 review of sub judice contempt and its application to internet publications, considered the definition of online publications as a continuing act, noting the significant burden this placed on the media to monitor its contents.^[82] However, the Commission recommended that the existing definition be maintained, but that liability should only arise in circumstances where the publisher had been put on notice by the Attorney General.^[83]

7.47 The Law Commission of England and Wales also considered whether a statutory definition of ‘place of publication’ was needed and whether the reach of the law of sub judice contempt should be wide enough to capture the ‘mischief’ of material published abroad which causes serious prejudice when it is accessed within the United Kingdom.^[84]

7.48 The Law Commission of England and Wales did not form a conclusion on this issue, but noted instead the complexity of these issues:

At its simplest, criminal content could be created in one country, saved on servers in a second country, with accessibility in both the first and second countries and numerous other third countries as well.^[85]

7.49 Even without the advent of new media, the complexity of this issue has long been recognised by the courts.

7.50 In 1985 in the New South Wales case Registrar of the Court of Appeal v Willesee, Justice Kirby also acknowledged the problem of jurisdictional reach and the burden sub judice contempt creates for publishers:

In a large country, divided into many jurisdictions, it is impossible to expect, and unreasonable to demand, that newspapers, broadcasters or other alleged contemnors should be aware of every trial, civil and criminal, being conducted throughout the country. To impose upon them strict liability for contempt of court for any chance utterance, either general or specific, which might prejudice the fair trial of a person before the courts would be oppressive and unreasonable.^[86]

7.51 Similarly, in 2003 the NSW Commission recognised that it would be ‘difficult or impossible’ to prosecute a publisher who carries out their business outside of the relevant state where proceedings are on foot.^[87]

7.52 However, the reach and potential impact today of online publications published outside Victoria may be more significant than in the past. A recent example is the media coverage of the criminal trial of George Pell which, despite a suppression order, was widely covered by the international media, and so was also accessible online from within Victoria. While such global media interest is rare for criminal trials in Victoria, the case raises questions about the enforceability of the law of sub judice contempt where a court’s jurisdictional reach is limited, as well as who should be held liable.^[88]

7.53 Liability of internet intermediaries and the challenges of enforcement are considered in Chapter 10.

The definition of ‘pending’

7.54 Sub judice contempt only operates when legal proceedings are before the courts. This time period is often referred to as ‘pending’.^[89]

7.55 Criminal proceedings commence when a court has become seised of the case and the criminal law has been ‘set in motion’.^[90] The courts have held that criminal proceedings have commenced when:

• a warrant has been issued^[91]

• a person has been arrested (with or without a warrant)^[92] or

• a person has been arrested and charged.^[93]

7.56 The issue of whether sub judice operates when proceedings are ‘imminent’, for example, during a police manhunt,^[94] has been considered both in case law and other law reform reviews.^[95] The courts have rejected this as a starting point because it is imprecise and uncertain.^[96]

7.57 Despite the statutory definition of when proceedings are ‘active’ in the United Kingdom’s Contempt of Court Act 1981, the media reported to the Law Commission of England and Wales that it was still difficult to determine when the proceedings were active. Reasons for this included the lack of consistent communication from the police about releasing the names of arrestees or that an arrestee may be on bail for months before charges are brought and a trial commences.^[97]

7.58 The effect of this uncertainty is that journalists could be deterred from reporting on police activities.^[98]

7.59 Proceedings continue to be pending until all avenues of appeal have been exhausted or an appeal judgment has been handed down.^[99]

7.60 This definition of when proceedings have concluded also gives rise to uncertainty, for example about whether or not the law operates to prevent publicity from impacting a judicial officer who may be delivering the sentence after the verdict or presiding over an appeal, well after any jury involvement has ceased.

7.61 In R v The Herald & Weekly Times in 2006, the Victorian Supreme Court considered whether an editorial published after a plea and before sentencing was sub judice contempt. The article included negative depictions of the convicted man and his character and posed the question as to whether he should be ‘locked away with no parole’. Justice Harper, citing the Court of Appeal,^[100] held that the editorial did not give rise to a ‘serious risk that the court would appear by reason of this editorial to be subject to outside influence’.^[101]

7.62 In 1987 the Australian Law Reform Commission (ALRC) noted that on the one hand judicial determination of a sentence may be subject to preconceptions and bias, thereby justifying the need for sub judice contempt to continue to operate. On the other hand, if media comment on sentencing were restricted, that would ‘make significant inroads on freedom to discuss a topic of vital public interest’.^[102]

7.63 The Law Commission of England and Wales more recently noted similar concerns about the potential influence media reporting could have on a sentencing judge. However, the Commission also found that there was evidence of many reputable publishers treating the final verdict as the end of the ‘active’ period and questioned whether there was a need to bring the law into line with practice.^[103]

7.64 Further issues with the point at which proceedings are deemed to conclude were identified by the Law Reform Commission of Western Australia (WA Commission):

• The chance of appeal is relatively rare.^[104]

• The ability to extend the time limit for the lodging of an appeal makes it difficult to determine whether or not all appeal options have been exhausted.^[105]

7.65 However, the NSW Commission also noted the influence that media publicity between the verdict and sentencing could have on parties, such as witnesses called into sentencing proceedings or the accused who may be deciding whether or not to appeal.^[106]

7.66 Accordingly, both the WA and NSW Commissions recommended that proceedings should be regarded as ending upon a conviction or acquittal at first instance, and beginning again if a re-trial is ordered.^[107] The NSW Commission added, however, that sub judice contempt should operate post-verdict but only to the extent necessary to protect parties (such as witnesses) from prejudicial publicity.^[108]

The strict liability standard

7.67 Liability for sub judice contempt falls on any person found to be ‘responsible’ for the contents, production, distribution or broadcasting of a publication regardless of their knowledge of the material.^[109]

7.68 No intention to interfere with the administration of justice is required.^[110] However, the court may take culpability into account when deciding to exercise its summary jurisdiction and when considering penalty.^[111]

7.69 Persons who may be responsible for a print publication include

• editors^[112]

• proprietors^[113]

• reporters^[114]

• printers^[115]

• distributors.^[116]

7.70 Persons who may be responsible for a broadcast publication include

• television or radio licensees^[117]

• production companies^[118]

• executive producers^[119]

• editors^[120]

• television stations.^[121]

7.71 In the small number of cases that have come before the courts involving online publications, media companies,^[122] journalists,^[123] website editors,^[124] bloggers^[125] or social media users have been held responsible.^[126]

7.72 Given the criminal nature of contempt and the ‘extraordinary procedures and punishments available’, it has been suggested that strict liability whereby no intention to prejudice is required, is inconsistent with the approach taken in other criminal offences^[127] and tilts the balance away from freedom of expression.^[128]

7.73 Accordingly, a number of alternatives to the current strict liability approach have been proposed.^[129] These include:

• introducing an actual intention or recklessness element to the test for liability^[130]

• introducing a requirement to demonstrate negligence by the defendant^[131]

• creating a defence or defences to cover a situation where there is an absence of fault and reasonable care has been taken.^[132]

7.74 However, the purpose of sub judice contempt is to protect the administration of justice and ensure a fair trial. Consequently, there may be justifications for the retention of the strict liability approach. In addition, such an approach helps to give organisations some incentive to set up systems to prevent prejudicial publication^[133] and avoids some of the difficulty of applying the requirement of an intention to a corporation.^[134]

7.75 The extent to which sub judice contempt liability applies, and can apply, to those involved in online publications remains uncertain.

7.76 The United Kingdom Attorney-General’s Office noted in its 2019 report on the impact of social media, the uncertainty of liability around social media posts. In the scenario where members of the public post contemptuous comments below a media organisation’s news article on a social media site, is the media organisation or the digital platform responsible for the post?^[135]

7.77 The liability of internet intermediaries who often do not have knowledge of the content being published, or who publish outside the jurisdiction, is considered in Chapter 10.

The public interest principle

7.78 Although a publication may be found to have a tendency to prejudice legal proceedings, a contempt will not arise if the publication was a fair and accurate report of proceedings^[136] or the publication relates to a matter of public interest.^[137] This part considers the public interest principle, the formulation and operation of which is uncertain.

7.79 The principle comes from the 1937 New South Wales case Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman where it was stated:

… if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations.^[138]

7.80 The High Court in Hinch held that the principle was to be applied by a balancing approach which considers whether the administration of justice is outweighed by the public’s interest in the free discussion of public affairs.^[139] Little guidance exists, however, as to what matters of public discussion would outweigh the administration of justice but for a ‘major constitutional crisis’ or ‘imminent threat of nuclear disaster’.^[140]

7.81 The balancing approach has been recognised as expanding the scope of the defence to include publications which deal specifically with legal proceedings, rather than just those publications in which the discussion of the legal proceedings arises as an ‘incidental but not intended by-product’.^[141]

7.82 Despite this expansion, it is unclear whether the public interest principle applies to publications where the ‘pith and substance’^[142] of the report goes to the guilt or innocence of the accused.^[143] To date, the courts have considered it unlikely that the principle would apply in these circumstances.^[144]

7.83 The effect of this uncertainty around the scope and application of the principle is that publishers may err on the side of caution and not publish material even if the subject is of significant public interest. Alternatively, some other publishers may ‘dress up’ the material as being in the public interest, as a means of discussing specific legal proceedings.^[145]

7.84 Law reform commissions have taken a range of approaches to the public interest principle in an attempt to clarify the law and to balance the relative importance of a fair trial and freedom of expression:

• The ALRC recommended a narrower construction of the public interest principle whereby the publisher should prove that the publication was an ‘integral part of the discussion and that the discussion would suffer significantly if the publication were delayed until the risk of prejudice had ceased’.^[146]

• The NSW Commission proposed a legislative provision mirroring the balancing approach in Hinch, with more guidance on how the balancing of principles should be carried out. The NSW Commission also recommended that the statutory test set out how the public interest in the administration of justice and a fair trial might be harmed, which it defined as ‘the creation of a risk of influence on those involved in a pending legal proceeding’.^[147]

• In 1994 the Law Reform Commission of Ireland considered that a public interest principle should not apply because a fair trial should always be prioritised. Instead, the Commission recommended that there should be a defence of ‘necessity to publish’ which would allow the court to have discretion as to whether certain publications were in the public interest and could be protected.^[148]

• In 2016 the Law Reform Commission of Ireland recognised that there may be circumstances where publishers need to bring issues to the attention of the public and should be able to do so even when the publication has the potential to prejudice legal proceedings.^[149]

The summary procedure for sub judice contempt

7.85 As discussed in Chapter 2, common law contempt proceedings in the Supreme or County Court are commenced by way of summons or originating motion under Order 75 of the Supreme Court (General Civil Procedure) Rules 2015 or the County Court Civil Procedure Rules 2018 (the General Civil Procedure Rules). Contempt proceedings are heard summarily by a judge alone. The proceedings may be commenced by the Attorney-General, the DPP or the Court itself may direct the Prothonotary in the Supreme Court or the Registrar in the County Court to initiate proceedings.^[150]

7.86 Given the harsh penalties that can be imposed for sub judice contempt, the appropriateness of and necessity for the summary procedure for sub judice contempt prosecutions have been questioned.

7.87 As stated by Chief Justice Dixon in the High Court case John Fairfax & Sons v McRae, the summary procedure is only used in exceptional cases:

this summary jurisdiction has always been regarded as one which is to be exercised with great caution, and, in this particular class of case, to be exercised only if it is made quite clear to the court that the matter published has, as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case.^[151]

7.88 The use of the summary procedure was justified in the New South Wales case Killen v Lane:

The departure from ordinary safeguards necessarily involved in such cases, by the court being both accuser and adjudicator, has been regarded as only justified, because of the overriding public interest in the safeguarding of the administration of justice from interference by swift deterrent action by the court itself. ^[152]

7.89 In that case the court also stated that if there were to be procedural requirements, such as committal proceedings, they would ‘bog down’ the court and interfere with the urgent need for the court to establish its authority and conduct a trial without interference.^[153]

7.90 In considering the appropriateness of the summary procedure, law reform commissions have noted the following in support of retaining the procedure:

• Contempt by publication requires an immediate response and therefore summary trial.^[154]

• The unique nature of sub judice contempt, which ‘strikes directly at the administration of justice’, requires that the offence be distinguished from other criminal offences and the court have the power to bring proceedings summarily.^[155]

• The elements of the offence have acquired technical meanings and should be considered by the court and not a jury. The balancing of principles also requires an understanding of legal notions which are better dealt with by the courts.^[156]

• Juries are expensive, can return incorrect or risky verdicts and their decisions would only add to the uncertainty of the law.^[157]

• The facts in a sub judice prosecution, such as ‘publication’ or the existence of pending proceedings, are often uncontested and previous case law will have determined what type of material is recognised as sub judice contempt. Therefore the role of the court is confined to determining whether punishment is necessary and what that punishment should be.^[158]

• Summary procedure has been used by the courts for such a long time that it is now customary among the legal profession and gives rise to few practical difficulties.^[159]

7.91 However, law reform commissions have also stated the following arguments against the summary procedure:

• Although immediate proceedings may be necessary where a contempt has been committed in the face of the court, contempt by publication proceedings in some jurisdictions are often adjourned and heard at the end of the related legal proceedings.^[160]

• There may be a need for a speedy response to a contempt, but not a speedy trial. Once the relevant authorities have instituted proceedings for contempt to avoid a further publication, there is no reason why the subsequent trial should not be dealt with like any other serious offence.^[161]

• If contempt proceedings are heard immediately, those proceedings could add to the harm already caused by the original publication.^[162]

• The facts and issues in sub judice contempt proceedings would be better dealt with by a jury.^[163] The question of whether there was a substantial risk that the publication would become known to jurors, may be appropriately dealt with by a jury.^[164] Other key issues such as intent, knowledge and reasonable care are traditionally better dealt with by a jury.^[165]

Penalties for sub judice contempt

7.92 The fundamental aim for punishment of sub judice contempt was stated by Justice Dixon in Yahoo!7:

To uphold and preserve the undisturbed and orderly administration of justice in the courts according to law, in this case the right of the accused persons in criminal trials before an impartial jury. The principal sentencing considerations are to effect specific and general deterrence, and denunciation.^[166]

7.93 An individual can be fined or committed to prison or both^[167] and a corporation can be fined or sequestered or both.^[168] There are no upper limits to a fine or imprisonment.^[169] The court may also impose a good behaviour bond^[170] and has the discretion not to record a conviction.^[171]

7.94 The fact that penalties for contempt are ‘at large’^[172] has a unique impact in the context of sub judice contempt. This was stated by the WA Commission:

In practice, it means that the media and their employees have no way of measuring their exposure when making decisions that require a balancing of the relevant interests. This might have a “chilling effect” as those making the decisions err on the side of caution, and too much information is kept from the public. Not surprisingly, the introduction of maximum penalties is widely regarded as the most urgent reform needed to the law of contempt by publication.^[173]

7.95 The ALRC noted that unlimited penalties provided a strong deterrent effect and prevented media organisations from being able to ‘indulge in a “cost-benefit exercise”, measuring the likely fine to be imposed if they are prosecuted for contempt against the advantages of increasing their sales or ratings’.^[174]

7.96 The ALRC also considered the need for the court to consider the financial resources of the contemnor and have the flexibility to set a fine accordingly.^[175]

7.97 Regardless, the ALRC recommended upper limits be imposed. The NSW Commission and WA Commission also recommended upper limits be set.^[176]

7.98 Imprisonment has been considered to be a harsh penalty, particularly when there may be no fault on the part of the contemnor,^[177] and the sentence is unlimited.^[178] In Victoria, this penalty has only been imposed once for sub judice contempt.^[179] The potential risk of imprisonment still stands, however, and may be imposed in an appropriate case.^[180]

7.99 Reasons for retaining imprisonment as a penalty option include:

• Imprisonment allows for the consideration that a fine is usually paid by the employing corporation which undermines the deterrent effect of the penalty.^[181]

• Imprisonment may have a residual role in being available for journalists who had an intention to interfere with the administration of justice or with reckless indifference.^[182] 

7.100 The ALRC and the NSW and WA Commissions recommended that imprisonment remain a sentencing option but an upper limit should be set to bring the offence into line with other criminal offences which are subject to sentencing restrictions.^[183]

Sub judice contempt and the fair trial

7.101 The assumptions on which sub judice contempt is founded are that:

• Prejudicial publicity is capable of influencing a juror’s impartiality despite directions from the judge.^[184]

• The mass media are responsible for prejudicial publicity, the flow of that information can be controlled and jurors can be protected.^[185]

7.102 The validity of these assumptions is being challenged by the impact of the new media landscape and the changes in how information is accessed and consumed. In turn, this brings into question the adaptability and necessity of sub judice contempt, or at least, the way it currently operates. These issues will be discussed below.

The influence on jurors

7.103 The law of sub judice contempt operates as a preventative means of shielding jurors from publicity that is irrelevant or may affect their impartiality.^[186]

7.104 However, modern courts are rejecting the assumption that jurors are ‘exceptionally fragile and prone to prejudice’.^[187] Instead, the courts assume that juries can follow judicial directions and make decisions based on the evidence presented and tested in court, even if they may have been exposed to irrelevant or prejudicial material.^[188]

7.105 In this part, the judicial opinions contesting this view, the available evidence and the way both of these inform the operation of sub judice contempt will be discussed.

The robustness of juries

7.106 There are contradictory and inconsistent views among the judiciary and in research about jurors’ decision-making and comprehension abilities and hence their robustness.

7.107 As stated above, there is a strong view from the judiciary that jurors are competent decision makers. Some judicial officers have observed that the continued existence of the jury system depends upon the faith put in juries to make decisions based on the evidence.^[189] To hold otherwise would give rise to serious questions about whether the community’s participation through the jury system could continue.^[190]

7.108 The shift in the way the courts have managed juries based on these changing views and the reality of quarantining juries in today’s media age was described by the Honourable Frank Vincent in his review of the Open Courts Act 2013 (Vic):

To reduce the risk of miscarriages of justice arising from this perceived unreliability of juries, endeavours have been made over the years to quarantine certain kinds of information from them. Until relatively recently, an attempt to avoid their exposure to possible external influences, at least during the trial itself, was made through the sequestering of juries. This no longer occurs and they are instructed not to undertake any internet or social media searches themselves or to discuss the case with anyone outside the jury room. A considerable level of claimed trust is reposed in them in this respect. The extent to which jurors obey such instructions is difficult to establish. However, the inference can be reasonably drawn that for some there is possibly little more likely to produce the opposite result than to inform them that there may be potentially probative information that, for some usually unexplained reason, is to be denied to them. It would also be naive to assume that discussion with families and friends who are not bound by any such restrictions does not occur, even if the jurors have been living in an information vacuum themselves.^[191]

7.109 Others have queried the foundations of the view that juries can be trusted. Justice Lasry of the Supreme Court of Victoria stated that judicial assumptions that jurors are faithful to their oaths are ‘often based more in hope than any identifiable objective evidence’, describing his own experience as ‘mixed’.^[192]

7.110 Further, while there may be faith in juries, it has been emphasised that the role of the courts in mitigating the exposure of jurors to prejudicial material should not be abandoned.^[193]

7.111 Justice Lasry, in Yahoo!7, also noted that many of the authorities that state juries are reliable and able to follow directions are concerned with publicity before the trial and before jurors are empanelled, which can be expressly addressed and considered when giving directions. Justice Lasry stated:

That circumstance is materially different from publication after empanelment while the trial is running.^[194]

7.112 As summarised by Jacqueline Horan, much of the research about juror comprehension shows that jurors themselves believe they comprehend contemporary trials,^[195] but the ability to provide empirical evidence proving this is limited.^[196] On the other hand, there have been studies that demonstrate that jurors, to an extent, can misunderstand the law as explained by judges.^[197]

7.113 Some studies have also cast some doubt on the ability of jurors to understand jury directions.^[198] However, research has also indicated that despite this, these misunderstandings do not always lead to widespread unfair decisions due to a variety of other safeguards such as the collective decision-making process.^[199]

7.114 A 2016 study into the likelihood of unfair prejudice towards an accused in joint child sexual abuse trials significantly challenged the assumption that jurors are ‘fragile and prone to prejudice’. The study, involving 90 mock child-sex trials, found that no jurors carried out impermissible reasoning in a joint trial, despite being exposed to evidence relating to other victims, accused persons or ‘tendency’ evidence (evidence about similar assaults by the accused, but uncharged). ^[200]

7.115 Arguably, this type of exposure is analogous to external media publicity, and although the above-mentioned types of evidence are distinct from publicity in that they can be predicted and addressed directly by the judicial officer through directions, the research does provide support for the view that juries are robust and competent in their decision-making abilities.

Types of information more likely to prejudice jurors

7.116 Arguably, the operation of the rules of evidence themselves, which ensure a case is decided beyond reasonable doubt based on the material before the court, demonstrate an ongoing need for sub judice contempt.

7.117 That is, sub judice contempt reinforces the rules of evidence by preventing jurors from being exposed to information which has not been tested by the parties in court.^[201] Similarly, the NSW Commission stated:

what the sub judice rules seek to do is filter out the most damaging of prejudicial effects so that views formed prior to trial, or from extrinsic sources during trial, are not held so strongly that they cannot be displaced by the evidence which is presented and tested in the courtroom, as well as by judicial directions and instructions on the law, and arguments and submissions by counsel on that evidence.^[202]

7.118 Accordingly, the key question is whether there are types of information and preconceptions so prejudicial that they should not be tolerated and therefore need to be restricted by the law of sub judice contempt.

7.119 The research indicates that this depends on the timing, detail and nature of the publication and also the amount of coverage. For example:

• Research conducted in the 1990s in New South Wales and New Zealand found that jurors were less likely to be influenced by the specific details in pre-trial publicity than had been originally thought.^[203]

• Juror prejudice, for example with regard to terrorism, can affect the juror’s verdict, as shown in an Australian study.^[204] Horan noted that the prejudice depends on the extent of the media coverage.^[205] Often it is not specific publications which contribute to this prejudice, but generic media coverage about the issue, such as terrorism, that can cumulatively impact a potential juror.

• In the United Kingdom, research found that jurors were not likely to recall pre-trial publicity and only recalled coverage published during the trial. This suggests the existence of a ‘fade factor’—that is, jurors do not recall publications from before a trial commences.^[206]

• However, the United Kingdom and New South Wales research found pre-trial publicity in high profile trials, or where the accused was a ‘household name’, was more likely to be recalled by jurors.^[207] The New South Wales study also found that the effect of pre-trial publicity is intensified when the offence occurred near where the juror lived and the publicity was encountered during the trial.^[208]

• Based on its survey of the research and its own findings, the ALRC identified a list of the types of publicity that would be most likely to threaten the impartiality of a juror. These included allegations of specific fact which were inadmissible and prejudicial and ‘value-laden’ comment such as racial prejudice.^[209]

Sub judice contempt proceedings compared to stay of proceedings applications

7.120 The view of the courts as to the robustness of juries appears to vary between when the court is considering whether there has been a sub judice contempt and when the court is considering an application for a stay of proceedings on the basis of prejudicial media publicity.

7.121 The courts’ view as to what material is considered to have a requisite ‘tendency’ to influence jurors is illustrated by recently prosecuted and punished contempts in Victoria. For example:

• a graphic headed ‘Victims of Melbourne’s Gangland Killings’ including an image of a victim and a caption detailing how he was killed. The graphic was published while a trial was proceeding against a man accused of the murder. Any link of the killing to ‘gangland wars’ or the way the newspaper had alleged the victim had been killed were not part of the case.^[210]

• an online publication about a murder trial before the court at the time of publication. The publication reported that the accused had been violent to the victim before the murder and referred to social media posts published by the victim that had not been put before the jury.^[211]

• a print and online publication which linked the accused in a criminal trial to prior convictions after being warned by the Director of Public Prosecutions to avoid publishing such material. It was found no harm actually occurred, but the notoriety of the accused person, the number of persons who had accessed the online version of the publication and the longevity of an online publication contributed to the potential harm done by the publication.^[212]

7.122 Conversely, in applications for stay proceedings on the basis of prejudicial media publicity, the judiciary has shown a faith in the ability of the jury to follow directions to ignore coverage.^[213] Stay of proceedings applications, following high-profile criminal trials, have been refused even in circumstances where a sub judice contempt was found and prosecuted in the original trial.^[214]

7.123 Justice Weinberg noted in R v Dupas (No 3), that if a stay of proceedings were granted on the basis of prejudicial publicity, it would be near impossible for a high-profile trial to ever go ahead successfully.^[215]

7.124 There is a disparity in the assumptions about juries’ behaviour and decision making underlying sub judice contempt proceedings and applications for a stay of proceedings. These disparities may be explained by the different purposes of both processes. Those are:

• Sub judice contempt is aimed at preventing prejudicial publicity, regardless of the actual effect or intention. The purpose of the punishment is to deter other media and publishers.^[216]

• Stay of proceedings is only granted where actual harm has been proven and only in the most extreme case.^[217]

7.125 This disparity in assumptions may also reflect distrust of the media by the judiciary.^[218]

7.126 Regardless of the reasons for these different approaches, the diverging treatment of jurors as either fragile or robust raises more uncertainty and inconsistency around the question of whether jurors are influenced by prejudicial publicity and to what extent should they be protected.^[219]

Can jurors be protected from prejudicial information in today’s media landscape?

7.127 Sub judice contempt is effective in controlling prejudicial media coverage in the traditional media where issues of ‘publication’ and liability are clear-cut and are well tested by the case law.

7.128 In 2001, academic Michael Chesterman stated:

The Australian law of sub judice presupposes that prohibitions focussing predominantly on the mass media will be broadly effective in preventing potential members of a jury from acquiring certain sorts of information about a trial, on the ground that it is predominantly through the media that information reaches the community.^[220]

7.129 However, the media landscape and the way people consume and share information is changing. These changes are disrupting traditional assumptions, suggesting that the law of sub judice contempt may not be translating well to the modern age of journalism and online communication.^[221]

Changes to the media landscape

7.130 Today, the internet has caused significant change in the way news is produced, disseminated and accessed, with enormous volumes of material being made available immediately and permanently. Consequently, there has been a decline in the concentration and influence of traditional media.^[222] For example:

• Print circulation of newspapers is declining, with more people accessing their news online.^[223]

• Although television still remains the most used source for news, the younger demographic of 18–24 year olds is increasingly using social media platforms such as YouTube, WhatsApp, Instagram and Snapchat to access news.^[224] Podcasting is also becoming a major source of news for 25–34 year olds.^[225]

• Today, over 50 percent of traffic on Australian news media websites comes from Google and Facebook.^[226]

7.131 As a consequence of these changes, traditional media has been under significant pressure to adopt new business models to adapt to the shift in revenue from print to online.^[227] This has resulted in a loss of experienced journalists,^[228] a decline in traditional types of journalism such as court reporting,^[229] a decline in the quality of content^[230] and a growing mistrust in the reliability of the media.^[231]

7.132 In addition, and as a consequence of changes to Australian media ownership laws, there has been a merging of different forms of media^[232] blurring the traditional distinctions between news types and different media forms.

7.133 All of these changes mean that traditional media outlets and journalists are no longer the sole publishers responsible for potentially prejudicial publications.^[233] Content can now be published and shared across different media and platforms by a wider range of individuals within and outside the jurisdictions; public commentary on social media can cumulatively cause prejudice to a trial; and companies such as Google and Facebook now play a significant role in the publishing process.^[234]

7.134 The Teacher’s Pet podcast is one example of new media challenging the traditional limits of sub judice contempt in shielding jurors.^[235] The podcast, which was published before charges were laid against the accused, provided details of the victim’s death and the surrounding circumstances. Despite charges being laid, the podcasts continued to be available up until the New South Wales Director of Public Prosecutions requested the episodes be taken down, which they were on 5 April 2019.^[236] It was reported that since the podcast’s release, there had been 27 million downloads with over a million within the week after the accused was charged.^[237]

7.135 Another example of the impact of the new media landscape was the social media commentary surrounding a high-profile murder trial in the United Kingdom which attracted significant local and national media attention. Throughout the trial the public posted numerous adverse comments on the otherwise fair and accurate media reports of the case which had been posted on social media. As a result of those comments, the jury was discharged and a retrial ordered several months later in a different venue.^[238]

7.136 Although this case was acknowledged to be an exceptional situation rather than illustrative of a wider problem, it gave rise to questions around the impact of social media on the administration of justice and the adaptability of sub judice contempt as a tool to manage such prejudicial coverage.^[239]

7.137 These examples demonstrate how restricting and controlling news about legal proceedings has become more complicated and, in some circumstances, such control may be impossible.

7.138 The enforceability of sub judice contempt and other offences in this context will be discussed in Chapter 10.

Changes to how people consume information

7.139 There are also changes in the way people understand, access and interact with information which challenge the assumption that jurors can be protected from extraneous information.

7.140 In this context, Oscar Bartel-Wallace summarised a number of ways in which the internet affects human cognition which may have implications for how jurors carry out their role. These include:

• Humans have more doubt of their own knowledge and therefore an increased reliance on the internet.^[240]

• There is a desire for instantaneous knowledge and people are less accustomed to any delay in answers in the digital age.^[241]

• The internet is used for everyday needs such as banking or communication, which has decreased the barriers between jurors and harmful publicity.^[242]

7.141 Recent data shows that people are increasingly accessing digital news, instead of print news, through mobile phones or other devices,^[243] while newspaper circulation is declining.^[244] A University of Canberra study of digital news found that in 2018, for the first time in four years of conducting the survey, participants’ use of digital platforms such as apps or social media to access news, surpassed their use of traditional platforms such as television, radio or print.^[245]

7.142 These changes to how people access and consume information affect how jurors comprehend evidence and directions within the courtroom. People who make up juries today are accustomed to daily news, engaging footage, concise and quick information and a level of control over what information they consume.^[246]

7.143 Further, jurors themselves can easily access information and there have been a number of cases where jurors have been found to carry out their own inquiries online.^[247] This scenario has been referred to as the ‘Googling juror’^[248] and is discussed in Chapter 5.

7.144 Together, these changes suggest that not only is the task of protecting jurors from prejudicial publicity becoming more complicated, but also the operation of the jury system and restrictions such as sub judice contempt may not be adequately adapted to, or appropriate for, the 21st century jury.

Suppression orders and take-down orders

7.145 Despite the growing recognition of the robustness of juries, there has been a resistance to completely forgoing the court’s role in safeguarding a fair trial, particularly in the context of online publications. This was stated by the Victorian Court of Appeal in News Digital Media Pty Ltd v Mokbel:

This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test. This role has relied upon the familiarity of the media with the restraints of the law of contempt and their respect of these constraints. It has also relied upon the power of the court to make orders restraining publications which might breach these restraints.^[249]

7.146 To ensure a fair trial and the proper administration of justice, the courts have relied on statutory^[250] and inherent powers^[251] to make orders either preventing the publication of prejudicial material or requiring already published online material to be taken down.

7.147 However, the practice of issuing pre-emptive suppression orders or take-down orders has been criticised by academics and some members of the judiciary as undermining the law of sub judice contempt^[252] and potentially exceeding what is necessary to ensure a fair trial.^[253]

7.148 Reasons for this practice may include:

• The decline in dedicated court reporters has led to a need to make specific orders to ensure journalists and other publishers are clear about what they can and cannot publish.

• Technological developments may encourage the courts to take a pre-emptive approach.^[254]

• There had been a loss of confidence in the ‘efficacy of alternatives to suppression such as the law of contempt’.^[255]

7.149 However, Butler and Rodrick warn against overstating the suggestion that suppression orders have taken over from sub judice contempt.^[256]

7.150 Similarly, the Courts of Appeal in Victoria^[257] and New South Wales^[258] have emphasised the ongoing role of sub judice contempt and acknowledged the limitations and futility of controlling internet publications.

7.151 In a 2018 Victorian Court of Appeal case,^[259] the court rejected an appeal by two accused persons facing terrorism-related charges who had applied for a suppression order on the jury’s verdict. The applicants argued that publication of the verdict would prejudice a second trial. Among other factors, the court acknowledged that the contempt of court laws should operate to prevent prejudicial reporting of prior convictions and that the media respondents in the case were aware of their obligations relating to contempt.^[260]

7.152 Academics have questioned whether take-down orders are useful and enforceable in the digital age.^[261] These issues are central for the courts in considering whether such orders should be issued or upheld, and are discussed in Chapter 10.

Possible reforms to sub judice contempt

7.153 In Australia, the primary means of ensuring a fair trial and protecting the administration of justice, with respect to prejudicial material, has traditionally been through the law of sub judice contempt.^[262] However, as indicated by the numerous reviews in Australia and abroad, the current operation of the law of sub judice contempt is not satisfactory.

7.154 There are two overlapping but distinct issues which give rise to these concerns:

• The uncertainties in the definitions and scope of the common law caused by the complex balancing act between the principles of fair trial, open justice and freedom of expression, which make the law difficult to navigate.

• The compatibility of the law with the principles it intends to serve. That is, is the departure from freedom of expression justified by the aim of ensuring a fair trial in the modern age when information is immediate, permanent and increasingly accessible?

7.155 The options for reform discussed below include statutory reforms to address uncertainties about the offence. Broader reform options are also considered which challenge the assumptions underpinning the way in which criminal trials are carried out, in the context of modern media and changing understandings of juror decision making.

A statutory offence of sub judice contempt

7.156 The current uncertainty in the law of sub judice contempt may be having a ‘chilling effect’

on the reporting of the courts,^[263] but it also gives rise to the risk of a fair trial being improperly influenced because those publishing material are ignorant of the law or do not understand it.^[264]

7.157 Retaining sub judice contempt, but in a legislative form, has been recommended by numerous law reform commissions in Australia^[265] and elsewhere.^[266] Legislation was implemented in the United Kingdom in 1981 following an extensive review on contempt in 1974.^[267] In Canada, a bill was put before parliament but lapsed in 1984. Currently, New Zealand’s and Ireland’s parliaments have bills before them. The New Zealand Parliament’s Justice Committee has handed down its report suggesting amendments to the proposed bill.^[268]

7.158 The WA Commission stated that the statutory reform of the common law would align the law with criminal law and process. The Commission also stated the reform would:

address the absence of any maximum sentence, the anomalous summary process by which contempt is often tried, and the absence of effective avenues for appeal.^[269]

7.159 The main uncertainties of the law of sub judice contempt which could be addressed by definitions and boundaries set out in legislation include:

• the formulation of the tendency test

• the definition of publication

• the start and end point of the sub judice period

• whether or not a fault element should apply

• what is considered in the ‘public interest’ and the test that determines whether or not it outweighs a fair trial

• the summary procedure

• the range of penalties that can be imposed.

7.160 The NZ Commission recommended the replacement of sub judice contempt with a statutory offence to clarify some of the above-mentioned elements, supplemented by other powers addressing the implications of online publications. These included an automatic prohibition on the publication of an arrested person’s previous convictions and concurrent charges and statutory powers to postpone the publication of other prejudicial material and to order online content hosts to take down such material.^[270]

7.161 However, a disadvantage of such legislative reform is the way in which it would restrict the flexibility needed to deal with new forms of contempt and a varying range of circumstances. As the case law has shown, a range of factors are considered when applying the law to the facts such as the prominence of the publisher, the type of publication, the accessibility of the article and the publication of other material about the proceedings.^[271] The balancing of the principles of a fair trial, open justice and freedom of expression may also be difficult to reflect in legislation.^[272]

7.162 The Commission notes, however, that an approach may be that these relevant factors could be listed non-exhaustively to be taken into account by the court. For example, the NZ Commission’s proposed bill included a provision which set out how the court should determine whether a publication creates a real risk of prejudice to the accused’s right to a fair trial, listing some of the relevant factors to be considered and types of publication which may be subject to the proposed offence.^[273]

7.163 The flexibility provided by the common law, while confusing, may also be an advantage for the media, who make assessments about when they can and cannot publish based on the circumstances of each case.

7.164 Introducing a new legislative instrument may merely serve to further confuse the already complex landscape with existing statutes on suppression orders, judicial proceedings and juries. The workability of such legislation and how it interacts with existing statutes also need to be carefully considered.

7.165 The Commission also notes that despite the introduction of the Contempt of Court Act 1981 in the United Kingdom in 1981, a number of definitional and operational problems persist, as indicated by the Law Commission of England and Wales’ recent reviews of publication contempt. Some of these problems included uncertainty about when proceedings are pending, the meaning of ‘prejudice’, a lack of clarity around when contempt proceedings are commenced, a lack of safeguards around the contempt proceedings and the difficulties that arise in prosecuting new types of publisher such as citizen journalists.^[274]

Other ways to manage jury behaviour

7.166 The assumption that jurors cannot be trusted to make decisions based only on the admissible evidence and that they are influenced by prejudicial publicity underlies the operation of the law of sub judice contempt.^[275] As discussed above at [7.106], researchers and the judiciary have both begun to question this assumption.

7.167 There is growing confidence in the robustness of juries and the ability of jury members to follow directions and to make decisions based only on the evidence put before them in court.

7.168 This change in views and the questioning of traditional assumptions open the possibility of other mechanisms to address the problem of jury exposure to prejudicial publicity, instead of simply attempting to quarantine jurors from accessing such materials.^[276]

7.169 Currently in Australia there is a range of other measures available to manage prejudicial publicity and the jury.^[277] These include jury directions, postponing a trial, changing the trial venue, sequestering a jury or having the trial heard by judge alone.^[278]

7.170 However, in Australia, the courts’ reliance on these other options is outweighed by their reliance on restricting and punishing prejudicial media coverage.^[279] In contrast, the courts in the United States rely heavily on remedial options rather than trying to prevent prejudicial publicity.^[280]

7.171 Acknowledging the different approaches taken in the two jurisdictions to freedom of speech and the unfettered freedom of the media in the United States, academics have argued that the preventative approach of Australia may no longer be effective in the 21st century and that instead greater focus should be placed on remedial options.^[281]

7.172 This part therefore considers alternative mechanisms to manage the jury. These include a greater focus on the role of jury directions and the option of questioning jurors before they are empanelled about their exposure to prejudicial media coverage.

Pre-trial questioning of jurors

7.173 Pre-trial questioning of jurors is conducted in the United States by a voir dire process.^[282] A similar practice is available in the United Kingdom, where judges can issue questionnaires about prejudicial media coverage to potential jurors in high-profile cases.^[283] The purpose of such questioning is to identify possible prejudice or bias in prospective jurors.

7.174 A more limited practice of questioning jurors is allowed for in Queensland and New South Wales, where a potential juror can be questioned about exposure to prejudicial publicity.^[284]

7.175 In Queensland such questioning is limited to where there are special reasons surrounding a trial, including prejudicial publicity.^[285] In this scenario the parties can make an application for people selected to serve as jurors to be questioned at the end of the jury selection process.^[286] In New South Wales, examination of jurors about prejudicial publicity is limited to during the trial.^[287]

7.176 The use of pre-trial questioning was considered by the Victoria Law Reform Commission in its review of jury empanelment in 2014. The Commission concluded at that time that there was little support for adopting pre-trial questioning in Victoria. ^[288]

7.177 Instead, the Commission considered that the current excuse process, whereby a juror can be excused from jury duty because of a matter that affects their impartiality,^[289] was an adequate means for identifying prospective jurors who would not be able to fairly try the issues.^[290] Further, the pre-trial questioning method was stated to be:

time consuming and intrusive … it would add no benefit to Victorian jurisprudence on jury selection and if adopted would significantly change the Victorian culture on jury selection.^[291]

7.178 In the context of sub judice contempt, the NSW Commission and the ALRC rejected the use of pre-trial questioning on the grounds that the process could be ‘unconscionably’ long to carry out and counterproductive in bringing the publicity to the attention of the jurors.^[292]

7.179 The NZ Commission similarly did not support the approach used in the United States which involves a cross-examination of jurors. Instead, the Commission recommended that a more interactive approach be taken when empanelling jurors, particularly in high-profile cases. This would involve clarifying whether potential jurors have been exposed to information about the case to an extent that it would affect their ability to make a decision based on the evidence.^[293]

Jury directions

7.180 As discussed in Chapter 5, jury directions are part of a suite of mechanisms, including the juror’s oath^[294] and the Juror’s Handbook, which are aimed at ensuring jurors understand their role and make their decisions ‘faithfully and impartially’ according to the admissible

evidence.^[295]

7.181 In addition, trial judges give juries directions to assist them to reach fair and just verdicts.^[296] Jury directions are frequently relied on to manage prejudicial publicity and its impact on the jurors in criminal trials.

7.182 As discussed above, applications for a stay of proceedings, on the basis of prejudicial media coverage, have been rejected because of the directions given to the jury at trial to ignore the publicity.^[297]

7.183 In trials where pre-trial publicity has been particularly problematic, such as terrorism trials, the judge will explain the importance of empanelling a group of jurors who can remain impartial in the face of the high levels of publicity.^[298] Jurors are then invited to be excused if they believe they would not be able to discharge their obligation to try the case based only on the evidence.^[299]

7.184 As discussed above and in Chapter 5, there are, however, concerns about the infallibility of jury directions. In the context of directions to the jury about media publicity and accessing the internet, research has demonstrated that:

• Jurors do not always understand jury directions.^[300] For example, research in the United Kingdom found 23 percent of jurors were confused about the rule on internet access.^[301]

• Jurors are known to ignore judicial directions and carry out their own research.^[302]

• The internet and communicating electronically has become second nature for people, and so jurors may come across information unintentionally.^[303]

• Jury directions may have a counter-productive ‘boomerang effect’ by alerting jurors to publicity which they then seek out.^[304]

7.185 In light of the apparent shortcomings of jury directions and the increased risk of jurors being exposed to or accessing prejudicial material online, law reform commissions have recommended proactive measures to manage jurors including:

• informing jurors before and during service about what they can and cannot do^[305]

• providing educational material with specific details about why it is important that jurors do not investigate or undertake their own research and why it poses a risk to a fair trial^[306]

• updating the content of jury warnings and directions to take account of technological developments and providing specific examples ^[307]

• requiring jurors to sign a written declaration that they have heard and understood warnings given by the judge about conducting their own research^[308]

• giving jurors consistent and frequent directions explaining why their decision should be made based only on the evidence presented in court and the risks of undertaking their own research.^[309]

7.186 In a report prepared for the Victorian Department of Justice, Jane Johnston and others also made recommendations about the content and dissemination of ‘don’t research’ jury directions.^[310]

7.187 These included references to social media; that directions should be written in plain language; and that they should clearly explain the consequences of failing to comply with the directions.^[311]

7.188 However, according to research comparing the approach of different jurisdictions in Australia and overseas, authors Elizabeth Greene and Jodie O’Leary stated that directions alone were inadequate to deal with the impact of the internet. They observed that judge-alone trials are the most desirable option for ensuring a fair trial in the era of digital and social media.^[312] Judge-alone trials are currently under review by the Victorian Government Department of Justice and Community.^[313]

Legal education about social media and sub judice contempt

7.189 Many individuals publishing on the internet, particularly on social media, do not have the same level of training, expertise and knowledge about legal restrictions and professionalism that court reporters have attained. The general public or freelance journalists also do not have the benefit of editorial input, fact checking and legal resources.^[314]

7.190 In the context of a decline in traditional media and a rise in citizen journalism and social media commentary, there may be a need for expanding legal education about sub judice contempt to the broader community.

7.191 This was one of the approaches implemented by the United Kingdom government in 2019 following a ‘Call for Evidence on the Impact of Social Media on the Administration of Justice’.^[315]

7.192 The report relied on evidence that showed the positive impact which timely and comprehensible legal education for jurors could have on reducing risks of prejudice which could extend to the community.^[316] Further, there was evidence that individuals using social media may not have given much thought to the consequences their social media posts might have and therefore, education would help people understand the importance of an effective legal system and to ‘think before they post’.^[317]

7.193 A dedicated webpage, www.gov.uk/contempt-of-court, was set up to raise awareness of the risks and implications of using social media to undermine the administration of justice. As at the time of writing, the web page included basic information about what contempt of court

is, what you should not publish about a court case, the legal consequences of being found to be in contempt, as well as a hotline to report a publication ‘that you think risks the fairness of a future or ongoing case’.^[318]

7.194 The report also recommended comprehensive guidance on contempt (particularly in the context of social media) for judges, advocates, prosecutors and the public.^[319] This was based on evidence that suggested the practitioners often avoid contempt proceedings because of their complexity.^[320]

7.195 The United Kingdom Attorney-General’s Office stated that they are now working with Facebook, Google and Twitter to address contemptuous or otherwise unlawful social media posts and create systems that will allow for the platforms to be notified of such content quickly, enabling them to mitigate a risk to the administration of justice.^[321]

7.196 There may also be a role for internet platforms in setting standards for acceptable behaviour on their websites to ensure jurors are not exposed to prejudice online.^[322]

Questions

27 Is there a need to retain the law of sub judice contempt?

28 If the law of sub judice contempt is to be retained, should the common law be replaced by statutory provisions? If so:

(a) How should the law and its constituent elements be defined, including:

i. The ‘tendency’ test

ii. The definition of ‘publication’

iii. The beginning and end of the ‘pending’ period?

(b) Should fault be an element, or alternatively should there be a defence to cover the absence of fault?

(c) Should the public interest test be expressly stated?

(d) Should upper limits for fines and imprisonment be set?

29 Is there a need for greater use of remedial options, for example jury directions or trial postponement? If so:

(a) How should this be facilitated?

(b) Are other mechanisms, for example pre-trial questioning of jurors, also required?

30 Is there a need for education about the impact of social media on the administration of justice and sub judice contempt to be targeted to particular groups, for example, judicial officers and jurors?

31 What other reforms should be made, if any, to this area of the law of contempt of court?

1. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century – Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 105; Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361, 372–3; Bell, Virginia, ‘How to preserve the integrity of jury trials in a mass media age’ (2005) 7 Judicial Review 311, 314; Chief Justice Spigelman, ‘The Internet and the Right to a Fair Trial’ (2005) 29 Criminal Law Journal 331, 332; Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt with in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109, 142.

   ↑

2. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Hinch v A-G (Vic) (1987) 164 CLR 15, 34 (Wilson J).

   ↑

3. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699 [23].

   ↑

4. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 19 [2.18]. See also Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003)) 18–19.

   ↑

5. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 19.

   ↑

6. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 31 [1.70].

   ↑

7. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259 (Hewart CJ).

   ↑

8. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 19 [2.19].

   ↑

9. Scott v Scott [1913] AC 417, 435 (Viscount Haldane LC); Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ; Isaacs, Gavan Duffy, Powers and Rich JJ). See also Russell v Russell (1976) 134 CLR 495, 505 (Barwick CJ); 520 (Gibbs J); 532–3 (Stephen J); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ).

   ↑

10. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 19 [2.17].

    ↑

11. Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67, 76–7 (French J).

    ↑

12. R v Glennon (1992) 173 CLR 592, 611–12 (Brennan J), citing Hinch v Attorney-General (Victoria) (1987) 164 CLR 15, 18 (Mason CJ).

    ↑

13. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370 (Dixon CJ, Fullagar, Kitto and Taylor JJ).

    ↑

14. Hinch v A-G (Vic) (1987) 164 CLR 15, 22 (Mason CJ); Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 242 (Jordan CJ); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 56 (Gibbs CJ).

    ↑

15. Ian Cram, Borrie & Lowe: The Law of Contempt (LexisNexis, 4th ed, 2010) 78.

    ↑

16. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 22; The Law Reform Commission, Contempt (Report No 35, 1987) 159–60 [280].

    ↑

17. The Law Reform Commission, Contempt (Report No 35, 1987) xlii.

    ↑

18. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 107.

    ↑

19. Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361, 372–3; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 110.

    ↑

20. Frank Vincent, Open Courts Act Review (2017) 122 [484] <https://engage.vic.gov.au/open-courts-act-review>.

    ↑

21. Bell v Stewart (1920) 28 CLR 419, 425–6 (Knox CJ, Gavan Duffy and Starke JJ); A-G (UK) v Times Newspapers Ltd [1974] AC 273, 301 (Reid LJ); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 58 (Gibbs CJ), 102 (Mason J), 136 (Wilson J).

    ↑

22. See discussion in The Law Reform Commission, Contempt (Report No 35, 1987) 218–19 [377].

    ↑

23. Senate Select Committee on the Future of Public Interest Journalism, Parliament of Australia, Report (February 2018) 23; Sora Park et al (eds), Digital News Report: Australia 2018 (News & Media Research Centre, University of Canberra, 2018) 50; Culture Department for Digital, Media and Sport (UK), The Cairncross Review: A Sustainable Future for Journalism (February 2019) 14.

    ↑

24. For a discussion of the unique characteristics of online publications, see News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; HM Advocate v Beggs (No 2) (2001) 4 SLT 139; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52.

    ↑

25. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974) 5.

    ↑

26. See Marilyn Warren, ‘Open Justice in the Technological Age’ (2014) 40(1) Monash University Law Review 45; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103; Jacqueline Horan, ‘Communicating with Jurors in the Twenty-first Century’ (Pt 29) (2007) Australian Bar Review 75; Chief Justice Spigelman, ‘The Internet and the Right to a Fair Trial’ (2005) 29 Criminal Law Journal 331; Justice Kirby, ‘Delivering Justice in a Democracy III—the Jury of the Future’ (1998) 17 Australian Bar Review 113.

    ↑

27. R v Dupas (No 2) (2005) 12 VR 601, 627 [81] (Nettle JA) citing R v Glennon (1992) 173 CLR 592, 614–15 (Brennan J); Gilbert v R (2000) 201 CLR 414, 425 [31] (McHugh J); R v Rich (Ruling No 7) [2008] VSC 437 [14] (Lasry J). For a summary of the research, see Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012).

    ↑

28. Hinch v A-G (Vic) (1987) 164 CLR 15, 34 (Wilson J).

    ↑

29. Ibid.

    ↑

30. Ibid.

    ↑

31. Ibid.

    ↑

32. Ibid.

    ↑

33. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699 [44].

    ↑

34. R v Hinch (No 1) [2013] VSC 520 [95]–[96].

    ↑

35. Hinch v A-G (Vic) (1987) 164 CLR 15, 34 (Wilson J).

    ↑

36. R v Hinch (No 1) [2013] VSC 520 [94] (Kaye J) citing A-G (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695, 699 (Samuels JA), 711 (McHugh JA); R v The Age Co Ltd [2006] VSC 479 [16] (Cummins J). The delay between the internet publication and trial of accused did not affect the finding of contempt because the publication was about prior convictions, custodial history and about graphic content and so would remain in the public’s memory.

    ↑

37. R v Hinch (No 1) [2013] VSC 520 [94] (Kaye J) citing A-G (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695, 711 (McHugh JA).

    ↑

38. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699 [36].

    ↑

39. R v Spectator Staff [1999] VSC [107].

    ↑

40. Ibid.

    ↑

41. Ultimately a stay of proceedings for the remaining charge was allowed with no eventual retrial: R v Spectator Staff [1999] VSC 431 [6]–[7], [33]

    ↑

42. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 68 [4.11].

    ↑

43. Hinch v A-G (Vic) (1987) 164 CLR 15, 27–8 (Mason CJ); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 99 (Mason J).

    ↑

44. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 133 (Wilson J), 166, 176–7 (Brennan J); Hinch v A-G (Vic) (1987) 164 CLR 15, 34 (Wilson J), 70 (Toohey J).

    ↑

45. Bell v Stewart (1920) 28 CLR 419, 432 (Isaacs and Rich JJ); Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 248 (Jordan CJ).

    ↑

46. The Law Reform Commission, Contempt (Report No 35, 1987) [288]–[295]; New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) [4.6]–[4.9]. See also Hinch v A-G (Vic) (1987) 164 CLR 15, 27 (Mason CJ).

    ↑

47. Hinch v A-G (Vic) (1987) 164 CLR 15, 27–8 (Mason CJ).

    ↑

48. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 69 [4.13]; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 29.

    ↑

49. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 64 [4.3].

    ↑

50. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity—An Empirical Study of Criminal Jury Trials in New South Wales (Report, February 2001) 200 [504]; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 74 [4.27].

    ↑

51. The Law Reform Commission, Contempt (Report No 35, 1987) 180 [311].

    ↑

52. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 77–80 [4.40]–[4.45].

    ↑

53. The Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) 36.

    ↑

54. DPP (NSW) v Wran (1987) 7 NSWLR 616.

    ↑

55. R v Hinch (No 1) [2013] VSC 520; R v The Herald and Weekly Times Ltd (2007) VR 248; A-G (NSW) v Willesee [1980] 2 NSWLR 143.

    ↑

56. A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

    ↑

57. Hinch v A-G (Vic) (1987) 164 CLR 15.

    ↑

58. Packer v Peacock (1912) 13 CLR 577.

    ↑

59. Ibid.

    ↑

60. Ex parte Auld re Consolidated Press Ltd (1936) SR (NSW) 594.

    ↑

61. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 77–80 [4.40]–[4.45].

    ↑

62. Ibid 139 [4.69].

    ↑

63. Ibid 80 [4.45].

    ↑

64. Rachel Hews and Nicolas Suzor, ‘“Scum of the Earth”: An Analysis of Prejudicial Twitter Conversations During the Baden-Clay Murder Trial’ (2017) 40(4) University of New South Wales Law Journal 1604; Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013).

    ↑

65. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 38 [2.13].

    ↑

66. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 373 [6.150], citing N Lowe and B Sufrin, The Law of Contempt (Butterworths, 3rd ed, 1996) 85. See Viner v Australian Building Construction Employees’ and Builders Labourers Federation (1963) 56 FLR 5, 22–3.

    ↑

67. R v Hinch (No 1) [2013] VSC 520 [95]–[96].

    ↑

68. See DPP (NSW) v Wran (1987) 7 NSWLR 616; A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

    ↑

69. See The (England and Wales) Law Commission’s consideration of these issues in its review of its contempt legisation and the definition of ‘other communication in whatever form’: Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 12 [2.24]. For a discussion of whether hyperlinks are considered a ‘publication’ in the context of defamation law, see also Kim Gould, ‘Hyperlinking and Defamatory Publication: A Question of “Trying to Fit a Square Archaic Peg into the Hexagonal Hole of Modernity”?’ (2012) 36 Australian Bar Review 137.

    ↑

70. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 372 (Dixon CJ, Fullagar, Kitto and Taylor JJ); Hinch v A-G (Vic) (1987) 164 CLR 15, 70 (Toohey J).

    ↑

71. Viner v Australian Building Construction Employees’ and Builders Labourers Federation (1963) 56 FLR 5, 22–3. See also New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 88 [3.15]–[3.16].

    ↑

72. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 377 [6.160].

    ↑

73. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 265 [65]. The Court of Appeal distinguished the definition of online publication in the contempt context from the approach taken in defamation law whereby publication occurs when and where the material is accessed: see Dow Jones v Gutnick (2002) 210 CLR 575. The definition of online publications as a ‘continuing act’ was adopted from Lord Osborne’s judgment in the Scottish High Court case HM Advocate v Beggs (No 2) (2001) 4 SLT 139, 145. The New South Wales Court of Appeal supported the view that online publication is a continuing act, but appeared to also approve the definition in Gutnick whereby the information must be accessed to constitute publication: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52. See also R v Hinch (No 1) [2013] VSC 520 [54], where the Victorian Supreme Court of Victoria accepted the definition of online publications as a ‘continuing act’.

    ↑

74. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 65 [44] (Basten JA).

    ↑

75. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248: an order requiring specific internet material be taken down from websites was set aside because it lacked necessity given the material was not current and was unlikely to be accessed by potential jurors. The part of the order restricting the publications from putting up future material about the accused was also set aside because the court should instead rely on the media to not publish material that would be in contempt. The issues of necessity and the futility of take-down orders are considered in Chapter 10.

    ↑

76. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 268 [76] (Warren CJ and Byrne AJA).

    ↑

77. Ibid [77] (Warren CJ and Byrne AJA).

    ↑

78. Ibid [78]–[83] (Warren CJ and Byrne AJA).

    ↑

79. Ibid 270 [84] (Warren CJ and Byrne AJA).

    ↑

80. Ibid 265 [65] (Warren CJ and Byrne AJA).

    ↑

81. New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 88 [3.15]–[3.16].

    ↑

82. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 31 [2.101].

    ↑

83. Ibid 42 [2.147].

    ↑

84. Ibid 60 [2.209].

    ↑

85. Ibid 59 [2.207]. See also: UK Government, Online Harms White Paper (Web Page, April 2019) <www.gov.uk/government/consultations/online-harms-white-paper>.

    ↑

86. Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 652.

    ↑

87. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 49–50 [3.11].

    ↑

88. The DPP issued a motion against local media outlets for ‘aiding and abetting’ international media outlets. Adam Cooper, ‘DPP Moves to Jail Editors, Journalists’, The Age (Melbourne, 27 March 2019); Richard Ackland, ‘The Media and Contempt of Court’ The Saturday Paper (Web Page, 6 April 2019) <www.thesaturdaypaper.com.au/opinion/topic/2019/04/06/the-media-and-contempt-court/15544692007951>. The UK Government has discussed the need for an ‘international approach’ to harmful and illegal content online. See UK Government, Online Harms White Paper (Web Page, April 2019) 66–7 <www.gov.uk/government/consultations/online-harms-white-paper>.

    ↑

89. James v Robinson (1963) 109 CLR 593, 607 (Kitto, Taylor, Menzies and Owen JJ).

    ↑

90. Ibid 615–16 (Windeyer J). See also R v The Herald and Weekly Times Ltd (2007) VR 248, 271: Smith J considered whether the relevant proceedings were ‘pending’, although the case was dismissed on other grounds.

    ↑

91. Packer v Peacock (1912) 13 CLR 577, 586 (Griffith CJ); James v Robinson (1963) 109 CLR 593, 615 (Windeyer J).

    ↑

92. James v Robinson (1963) 109 CLR 593.

    ↑

93. Packer v Peacock (1912) 13 CLR 577, 586 (Griffith CJ); A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, 374–5.

    ↑

94. James v Robinson (1963) 109 CLR 593, 605 (Kitto, Taylor, Menzies and Owen JJ).

    ↑

95. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 57.

    ↑

96. A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368, 376; James v Robinson (1963) 109 CLR 593, 607. See New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003).

    ↑

97. Law Commission (England and Wales), Contempt of Court: Scandalising the Court (Consultation Paper, 2012) 8 [2.15].

    ↑

98. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003).

    ↑

99. James v Robinson (1963) 109 CLR 593, 615 (Windeyer J).

    ↑

100. The Herald & Weekly Times Ltd v A-G (Vic) [2001] VSCA 152.

     ↑

101. R v The Herald & Weekly Times Pty Ltd [2006] VSC 94 [30].

     ↑

102. The Law Reform Commission, Contempt (Report No 35, 1987) 222 [384].

     ↑

103. Law Commission (England and Wales), Contempt of Court (Consultation Paper, 2012) 10 [2.24].

     ↑

104. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 32.

     ↑

105. Ibid.

     ↑

106. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 172–3 [7.63]–[7.68].

     ↑

107. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 33; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 175.

     ↑

108. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 177.

     ↑

109. A-G (NSW) v Willesee [1980] 2 NSWLR 143, 155–7.

     ↑

110. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371.

     ↑

111. R v The Herald & Weekly Times Pty Ltd [2008] VSC 251 [16] citing R v David Syme & Co Ltd [1982] VR 173, 178; R v Griffiths, Ex parte A-G (UK) [1957] 2 All ER 379, 383.

     ↑

112. R v The Age Co Ltd [2006] VSC 479; R v Spectator Staff [1999] VSC 107.

     ↑

113. James v Robinson 109 CLR 593; R v Spectator Staff [1999] VSC 107.

     ↑

114. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699; DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45; R v Spectator Staff [1999] VSC 107.

     ↑

115. R v David Syme & Co Ltd [1982] VR 173.

     ↑

116. R v Collins (1984) 15 A Crim R 148; R v Griffiths [1957] 2 All ER 379.

     ↑

117. A-G (NSW) v Willesee [1980] 2 NSWLR 143.

     ↑

118. Ibid.

     ↑

119. R v Pacini [1956] VLR 544.

     ↑

120. R v Australian Broadcasting Corporation [1983] Tas R 161.

     ↑

121. A-G (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

     ↑

122. DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45.

     ↑

123. Ibid.

     ↑

124. R v The Age Co Ltd [2006] VSC 479.

     ↑

125. R v Hinch (No 1) [2013] VSC 520.

     ↑

126. Ibid.

     ↑

127. President Kirby noted that the requirement at criminal law that an intention be shown, should also apply to sub judice contempt: Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650, 652–3.

     ↑

128. New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 172 [5.20].

     ↑

129. Ibid 174 [5.29].

     ↑

130. This approach was rejected by the New South Wales, Australian and Ireland law reform commissions, as it imposed too great a burden on the prosecution to prove the intention or recklessness: New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 102 [5.11]; The Law Reform Commission, Contempt (Report No 35, 1987) 144 at [260]; Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) [6.10].

     ↑

131. Law Reform Commission of Canada, Contempt of Court (Report No 17, 1982) 55; Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) [6.10].

     ↑

132. The Law Reform Commission, Contempt (Report No 35, 1987) 145 [262]; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 181–2; Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 54 [2.93]; Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 37–41. The failure of a media organisation’s systems has been considered a factor in sentencing: see R v Herald & Weekly Times Pty Ltd [2008] VSC 251, [41]; DPP (Vic) v Yahoo!7 [2017] VSC 45 [28]; R v Spectator Staff [1999] VSC 107 [42].

     ↑

133. The Law Reform Commission, Contempt (Report No 35, 1987) 142 [259]; New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 173 [5.22].

     ↑

134. The Law Reform Commission, Contempt (Report No 35, 1987) 143 [2.59]; New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000) 173 [5.23].

     ↑

135. Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019) 8–9 [2.18].

     ↑

136. A report is fair and accurate if it is ‘one which a person of ordinary intelligence using reasonable care might reasonably regard as giving a fair summary of the proceedings’: Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255, 259 (Jordan CJ).

     ↑

137. Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242, 249 (Jordan CJ).

     ↑

138. Ibid.

     ↑

139. Hinch v A-G (Vic) (1987) 164 CLR 15, 22–8 (Mason CJ), 37–45 (Wilson J), 46–53 (Deane J), 68–9 (Toohey J), 83–7 (Gaudron J); Victoria v Australian Building Construction Employees’ and Builders’ Labourers’ Federation (1982) 152 CLR 25, 56 (Gibbs CJ), 74–5 (Stephen J), 95–8 (Mason J),133–7 (Wilson J), 175 (Brennan J).

     ↑

140. Hinch v A-G (Vic) (1987) 164 CLR 15, 26 (Mason CJ).

     ↑

141. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 187 [8.8].

     ↑

142. A-G (NSW) v X (2000) 49 NSWLR 653, 673 [100].

     ↑

143. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 187 [8.10].

     ↑

144. The Victorian Supreme Court stated that where the central matter of the publication went to the guilt of the accused, it is unlikely the public’s interest in the administration of justice and a fair trial will be outweighed by any other interest: R v Hinch (No 1) [2013] VSC 520 [120]. See earlier cases: DPP (NSW) v Wran (1987) 7 NSWLR 616, 629; Hinch v A-G (Vic) (1987) 164 CLR 15, 88 (Gaudron J).

     ↑

145. Felicity Robinson, ‘ “No, No! Sentence First—Verdict Afterwards”: Freedom of the Press and Contempt by Publication in Attorney-General for the State of New South Wales v X’ (2001) 23 Sydney Law Review 261, 265; Sally Walker, ‘Freedom of Speech and Contempt of Court: The English and Australian Approaches Compared’ (1991) 40 International and Comparative Law Quarterly 584, 602.

     ↑

146. The Law Reform Commission, Contempt (Report No 35, 1987) 195 [332].

     ↑

147. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 199. This proposal was made following A-G (NSW) v X (2000) 49 NSWLR 653, where the majority supported the balancing approach and held that a publication could still be in the public interest even though it went directly to the guilt of the accused.

     ↑

148. Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994) 62.

     ↑

149. Law Reform Commission of Ireland, Contempt of Court and Other Offences and Torts Involving the Administration of Justice (Issues Paper, 2016) 62 [5.33]. This was in light of a decision which required sub judice contempt to comply with the European Charter of Human Rights Article 10 which provides for freedom of expression: Sunday Times v UK (1979) 2 EHRR 245.

     ↑

150. Supreme Court (General Civil Procedure Rules) 2015 (Vic) rr 75.06, 75.07; County Court Civil Procedure Rules 2018 (Vic) rr 75.06, 75.07.

     ↑

151. John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370.

     ↑

152. Killen v Lane [1983] 1 NSWLR 171, 178.

     ↑

153. Ibid.

     ↑

154. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 45.

     ↑

155. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 300 [12.70]; The Law Reform Commission, Contempt (Report No 35, 1987) 278 [474].

     ↑

156. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 300–301 [12.71]; The Law Reform Commission, Contempt (Report No 35, 1987) 277 [474].

     ↑

157. New South Wales Law Reform Commission, Contempt by Publication (Report 100, 2003) 301 [12.72]; The Law Reform Commission, Contempt (Report No 35, 1987) 277–8 [474].

     ↑

158. The Law Reform Commission, Contempt (Report No 35, 1987) 277 [474].

     ↑

159. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 301 [12.73]. See also The Law Reform Commission, Contempt (Report No 35, 1987) 277 [474].

     ↑

160. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 297 [12.62]; The Law Reform Commission, Contempt (Report No 35, 1987) 267 [437].

     ↑

161. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 45.

     ↑

162. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 297 [12.62].

     ↑

163. Ibid 299 [12.66]; The Law Reform Commission, Contempt (Report No 35, 1987) 276 [473].

     ↑

164. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 45.

     ↑

165. The Law Reform Commission, Contempt (Report No 35, 1987) 277 [473].

     ↑

166. DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45 [6]

     ↑

167. Supreme Court (General Civil Procedure) Rules 2015 (Vic) r. 75.11 (1).

     ↑

168. Ibid r. 75.11 (2).

     ↑

169. Smith v The Queen (1991) 25 NSWLR 1, 15.

     ↑

170. DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45.

     ↑

171. R v The Herald & Weekly Times Pty Ltd [2008] VSC 251.

     ↑

172. Smith v The Queen (1991) 25 NSWLR 1, 15; Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) IR 288.

     ↑

173. Law Reform Commission of Western Australia, Contempt by Publication (Discussion Paper, March 2002) (ii).

     ↑

174. The Law Reform Commission, Contempt (Report No 35, 1987) 283 [482].

     ↑

175. Ibid.

     ↑

176. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003); New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003).

     ↑

177. The Law Reform Commission, Contempt (Report No 35, 1987) 481 [282].

     ↑

178. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 50.

     ↑

179. Derryn Hinch was sentenced to six weeks imprisonment which was reduced to 28 days by the Full Court of the Supreme Court of Victoria. The seriousness of Hinch’s conduct in continuing to broadcast prejudicial information about the accused Glennon despite being warned not to and his experience as a journalist were said to justify the custodial sentence: Hinch v A-G (Vic) [1987] VR 721, 749–50.

     ↑

180. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 49.

     ↑

181. New South Wales Law Reform Commission, Contempt by Publication (Discussion Paper, 2000), 425–6 [13.34].

     ↑

182. The Law Reform Commission, Contempt (Report No 35, 1987) 282 [481].

     ↑

183. Ibid 282–3 [482].

     ↑

184. Felicity Robinson, ‘“No, No! Sentence First—Verdict Afterwards”: Freedom of the Press and Contempt by Publication in Attorney-General for the State of New South Wales v X’ (2001) 23 Sydney Law Review 261, 263; Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 362; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103; 108–9; Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109, 139; The Law Reform Commission, Contempt (Report No 35, 1987) 159–60 [280].

     ↑

185. Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109, 142; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103.

     ↑

186. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 174.

     ↑

187. John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344, 366 [103] (Spigelman CJ, Handley JA and Campbell AJA agreeing). See also Hinch v A-G (Vic) (1987) 164 CLR 15, 74 (Toohey J).

     ↑

188. See, eg, R v Glennon (1992) 173 CLR 592, 603 (Mason CJ and Toohey J); General Television Corporation Pty Ltd v DPP (2008) 19 VR 68, 84 [54]; Yuill v R (1993) 69 A Crim R 450, 453–4; John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344, 366 [103] (Spigelman CJ, Handley JA, Campbell AJA agreeing).

     ↑

189. R v Dupas (No 2) (2005) 12 VR 601, 627 [81] (Nettle JA) citing R vGlennon (1992) 173 CLR 592, 614–5 (Brennan J); Gilbert v R (2000) 201 CLR 414, 425 [31] (McHugh J).

     ↑

190. Frank Vincent, Open Courts Act Review (2017) 123 [486] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

191. Ibid 122–3 [485].

     ↑

192. R v Rich (Ruling No 7) [2008] VSC 437 [14] (Lasry J).

     ↑

193. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 265 [73].

     ↑

194. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699 [36].

     ↑

195. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 71. Horan summarises some of the following studies: Cheryl Thomas, Are Juries Fair? (Ministry of Justice, United Kingdom, 2010); James Ogloff and V Gordon Rose, ‘The Comprehension of Judicial Instructions’ in Neil Brewer & Kipling Williams (eds), Psychology and Law: An Empirical Perspective (Guilford Press, 2005).

     ↑

196. Comprehension testing can be limited by the number of factors affecting the process. Legal restrictions around the disclosure of jury deliberations also make this kind of research difficult: Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 71.

     ↑

197. Ibid. See James Ogloff and V Gordon Rose, ‘The Comprehension of Judicial Instructions’ in Neil Brewer & Kipling Williams (eds), Psychology and Law: An Empirical Perspective (Guilford Press, 2005); Law Commission (New Zealand), Juries in Criminal Trials, Report 69 (2001); Cheryl Thomas, Are Juries Fair? (Ministry of Justice, United Kingdom, 2010).

     ↑

198. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 73. For a summary of research on jury instructions in the context of preventing impermissible use of different types of evidence, see Jane Goodman-Delahunty, Annie Cossins & Natalie Martschuk, Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study (Royal Commission into Institutional Responses to Child Sexual Abuse, May 2016) 28, 63–4; see also Law Commission (New Zealand), Juries in Criminal Trials, Report 69 (2001); Cheryl Thomas, Are Juries Fair? (Ministry of Justice, United Kingdom, 2010).

     ↑

199. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 73. See Law Commission (New Zealand), Juries in Criminal Trials Part Two—A Summary of the Research Findings, Preliminary Paper (1999) 26, 55; Law Commission (New Zealand), Juries in Criminal Trials, Report 69 (2001) 146.

     ↑

200. Jane Goodman-Delahunty, Annie Cossins & Natalie Martschuk, Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study (Royal Commission into Institutional Responses to Child Sexual Abuse, May 2016). See also Joanne McCarthy, ‘Justice Peter McClennan Says Study Raises Questions about Rules on Child Sex Trials’, The Newcastle Herald (Web Page, 25 May 2016) <www.theherald.com.au/story/3928516/worlds-largest-jury-behaviour-study-surprises/>.

     ↑

201. The Law Reform Commission, Contempt (Report No 35, 1987) 161–2 [283].

     ↑

202. New South Wales Law Reform Commission, Contempt by Publication, (Discussion Paper, 2000) 44 [2.35].

     ↑

203. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity—An Empirical Study of Criminal Jury Trials in New South Wales (February 2001) 69–73; Law Commission (New Zealand), Juries in Criminal Trials Part Two—A Summary of the Research Findings, Preliminary Paper (1999) 26, 60–1. Horan noted that both these studies were conducted at the beginning of the internet revolution and did not account for the nature of online information today: Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 187.

     ↑

204. David Tait, ‘Deliberating About Terrorism: Prejudice and Jury Verdicts in a Mock Terrorism Trial’ (2011) 44(3) Australian & New Zealand Journal of Criminology 387.

     ↑

205. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 191.

     ↑

206. Cheryl Thomas, Are Juries Fair? (Ministry of Justice, United Kingdom, 2010) 44.

     ↑

207. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity—An Empirical Study of Criminal Jury Trials in New South Wales (February 2001) 200 [504]; Cheryl Thomas, Are Juries Fair? (Ministry of Justice, United Kingdom, 2010) 44.

     ↑

208. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity—An Empirical Study of Criminal Jury Trials in New South Wales (February 2001) 200 [504].

     ↑

209. The Law Reform Commission, Contempt (Report No 35, 1987) [287] 165–6.

     ↑

210. R v The Herald & Weekly Times Pty Ltd [2008] VSC 251.

     ↑

211. DPP (Vic) v Johnson & Yahoo!7 [2016] VSC 699.

     ↑

212. R v Nationwide News Pty Ltd [2018] VSC 572 [58].

     ↑

213. Dupas v R (2010) 241 CLR 237; R v Mokbel [2009] VSC 342; Murphy v R (1989) 167 CLR 94.

     ↑

214. See Hinch v A-G (Vic) (1987) 164 CLR 15; R v Glennon (1992) 173 CLR 592.

     ↑

215. R v Dupas (No 3) (2009) 28 VR 380, 442 [251].

     ↑

216. DPP (Vic) v Johnson & Yahoo!7 (No 2) [2017] VSC 45 [6]

     ↑

217. Dupas v R (2010) 241 CLR 237, 249–50.

     ↑

218. See Frank Vincent, Open Courts Act Review (2017) 66 [10.2.1]–[10.2.2] <https://engage.vic.gov.au/open-courts-act-review>; Karin Derkley, ‘Suppression Orders in the Open Courts Era’ (2019) Law Institute Journal (Web Page) 93(4).

     ↑

219. See The Law Reform Commission, Contempt (Report No 35, 1987) 163–4 [285]; Andrew Dodd, ‘Media Files/Podcast: Pell Trial Reporters, a Judge and a Media Lawyer on why the Suppression Order Debate is far from over’ (Podcast, 21 March 2019) The Conversation <www.theconversation.com/podcast-pell-trial-reporters-a-judge-and-a-media-lawyer-on-why-the-suppression-order-debate-is-far-from-over-111634>.

     ↑

220. Michael Chesterman, Janet Chan and Shelley Hampton, Managing Prejudicial Publicity—An Empirical Study of Criminal Jury Trials in New South Wales (February 2001) 142.

     ↑

221. Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103; Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109.

     ↑

222. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Preliminary Report, December 2018) 2–3.

     ↑

223. Nielsen, ‘Australian News Media Total Audience Report December 2018’, Emma (Web Page, December 2018) <www.emma.com.au/reports>; Zoe Samios, ‘ABCs: Newspaper Circulation Suffers Across the Board with Falls as Large as 16%’ (17 August 2018) Mumbrella <https://mumbrella.com.au/abcs-newspaper-circulation-suffers-across-the-board-with-falls-as-large-as-16-535665>.

     ↑

224. Sora Park et al (eds), Digital News Report: Australia 2018 (News & Media Research Centre, University of Canberra, 2018) 50.

     ↑

225. Ibid.

     ↑

226. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Preliminary Report, December 2018) 8.

     ↑

227. Public Interest Journalism Committee, Parliament of Australia, Future of Public Interest Journalism (Final Report, February 2018, February 2018) 25–29.

     ↑

228. Public Interest Journalism Committee, Parliament of Australia, Future of Public Interest Journalism, Final Report (February 2018) 29 [2.21].

     ↑

229. Ibid 38 [2.55]; Margaret Simons et al, ‘Understanding Civic Impact Journalism’ (2017) 18(11) Journalism Studies 1409–10.

     ↑

230. Public Interest Journalism Committee, Parliament of Australia, Future of Public Interest Journalism, Final Report (February 2018) 39 [2.56].

     ↑

231. Australian Competition & Consumer Commission, Digital Platforms Inquiry (Preliminary Report, December 2018) 8.

     ↑

232. ‘Government’s Media Ownership Law Changes Pass Senate with Help from NXT, One Nation’, ABC News (Web Page, 14 September 2017) <www.abc.net.au/news/2017-09-14/media-law-changes-bill-passes-senate/8946864>; on 16 October 2017, the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (Cth) was enacted, abolishing the the 75% and ‘two in three’ rules which had restricted ownership of media companies.

     ↑

233. See Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019).

     ↑

234. See, eg, Toby Manhire, ‘New Zealand Courts Banned Naming Grace Millane’s Accused Killer. Google Just Emailed it Out.’, The Guardian (Web Page, 13 December 2018) <www.theguardian.com/world/2018/dec/13/new-zealand-courts-banned-naming-grace-millanes-accused-killer-google-just-emailed-it-out>; Sam Hurley, ‘Grace Millane Case: Suppression Flouted by Google and Others, Prosecutions to Follow?’, New Zealand Herald (Web Page, 14 December 2018); <www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12176432>. The issue of Google auto-completing searches which were in themselves prejudicial or published restricted identities was addressed in Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019). See also UK Government, Online Harms White Paper (Web Page, April 2019) <www.gov.uk/government/consultations/online-harms-white-paper>.

     ↑

235. Hedley Thomas, ‘The Teacher’s Pet’, The Australian (Podcast, 5 December 2018) <www.theaustralian.com.au/the-teachers-pet>.

     ↑

236. Jerome Doraisamy, ‘Teacher’s Pet Podcast Now Raising “Real Risk of Contempt”’, Lawyers Weekly (Web Page, 10 December 2018) <www.lawyersweekly.com.au/politics/24619-teacher-s-pet-podcast-now-raising-real-risk-of-contempt>; David Murray, ‘Teacher’s Pet Podcast Series to be Temporarily Unavailble in Australia’, The Australian (Web Page, 5 April 2019) <www.theaustralian.com.au/podcasts/teachers-pet-podcast-series-to-be-temporarily-unavailable-in-australia/news-story/957300743da2878171631990510abd0b>.

     ↑

237. Jerome Doraisamy, ‘Teacher’s Pet Podcast Now Raising “Real Risk of Contempt”’, Lawyers Weekly (Web Page, 10 December 2018) <www.lawyersweekly.com.au/politics/24619-teacher-s-pet-podcast-now-raising-real-risk-of-contempt>.

     ↑

238. Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019) 3 [1.1]–[1.3]. Ex Parte British Broadcasting Corporation and others R v F and another [2016] EWCA Crim 12.

     ↑

239. The case was an impetus for the UK Attorney General’s call for evidence: Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019).

     ↑

240. Oscar Battell-Wallace, ‘No Search Results in Fairness: Addressing Jurors’ Independent Research in the 21st Century’ (2018) 49 Victoria University of Wellington Law Review 83, 90.

     ↑

241. Ibid 93.

     ↑

242. Ibid 94.

     ↑

243. Nielsen, ‘Australian News Media Total Audience Report December 2018’, Emma (Web Page, December 2018) <www.emma.com.au/reports>; R. Warwick Blood, ‘Generational Shifts in News Consumption’ in Sora Park et al (eds), Digital News Report: Australia 2018 (News & Media Research Centre University of Canberra, 2018) 60.

     ↑

244. Zoe Samios, ‘ABCs: Newspaper Circulation Suffers Across the Board with Falls as Large as 16%’, (17 August 2018) Mumbrella <https://mumbrella.com.au/abcs-newspaper-circulation-suffers-across-the-board-with-falls-as-large-as-16-535665>.

     ↑

245. R. Warwick Blood, ‘Generational Shifts in News Consumption’ in Sora Park et al (eds), Digital News Report: Australia 2018 (News & Media Research Centre University of Canberra, 2018) 60, 60.

     ↑

246. Justice Kirby, ‘Delivering Justice in a Democracy III—the Jury of the Future’ (1998) 17 Australian Bar Review 113; Jacqueline Horan, ‘Communicating with Jurors in the Twenty-first Century’ (Pt 29) (2007) Australian Bar Review 75.

     ↑

247. Martin v R (2010) 28 VR 579; Benbrika v R (2010) 29 VR 593.

     ↑

248. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 116; Oscar Battell-Wallace, ‘No Search Results in Fairness: Addressing Jurors’ Independent Research in the 21st Century’ (2018) 49 Victoria University of Wellington Law Review 83.

     ↑

249. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 267 [73].

     ↑

250. Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013). The Open Courts Act 2013 (Vic) s 17 provides for the statutory power to make proceeding suppression orders.

     ↑

251. The Open Courts Act 2013 (Vic) s 5(1) preserves the Supreme Court’s inherent jurisdiction to make suppression orders restricting specified material by publication.

     ↑

252. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 109; J J Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147; the Hon. Philip Cummins, ‘Open Courts: Who Guards the Guardians?’ (Speech, Justice Open and Shut: Suppression Orders and Open Justice in Australia and the United Kingdom Seminar, Sydney, 4 June 2014) 3.

     ↑

253. Jason Bosland, ‘Restraining ‘Extraneous’ Prejudicial Publicity: Victoria and New South Wales Compared’ (2018) 41(4) University of New South Wales Law Journal 1263, 1291–3.

     ↑

254. Ibid 1267.

     ↑

255. Frank Vincent, Open Courts Act Review (2017) 64 <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

256. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 435 [6.790].

     ↑

257. News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248.

     ↑

258. Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, 78.

     ↑

259. Chaarani v DPP (Cth) [2018] VSCA 299.

     ↑

260. Ibid [47]. The court also considered the fact that the first trial had been extensively publicised and a Google search of the applicants’ names revealed material about the trial. Therefore the court said that in this case ‘the genie cannot be put back in the bottle’ [45].

     ↑

261. Isaac Frawley Buckley, ‘In defence of “take-down” orders: Analysing the Alleged Futility of the Court-ordered Removal of Archived Online Prejudicial Publicity’ (2014) 23 Journal of Judicial Administration 203; Brian Fitzgerald and Cheryl Foong, ‘Suppression Orders After Fairfax Ibrahim: Implications for Internet Communications’ (2013) 37 Australian Bar Review 175; Paul Karp and Sophie Dawson, ‘Holding Back the Tide: King Canute Orders and Internet Publications’ (2012) 30(4) Communications Law Bulletin 10; Jason Bosland, ‘Restraining ‘Extraneous’ Prejudicial Publicity: Victoria and New South Wales Compared’ (2018) 41(4) University of New South Wales Law Journal 1263.

     ↑

262. Des Butler and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th ed, 2015) 369.

     ↑

263. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 17.

     ↑

264. See Rachel Hews and Nicolas Suzor, ‘”Scum of the Earth”: An Analysis of Prejudicial Twitter Conversations During the Baden-Clay Murder Trial’ (2017) 40(4) University of New South Wales Law Journal 1604, which showed the prejudicial nature of tweets about a trial from the general public who are generally unaware of legal restrictions.

     ↑

265. New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003); Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003); The Law Reform Commission, Contempt (Report No 35, 1987).

     ↑

266. The Law Reform Commission of Hong Kong, Contempt of Court, Report, Topic No 4 (December 1986); Law Reform Commission of Ireland, Report on Contempt of Court (Report No 46, September 1994); Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute, Report No 140 (May 2017). Proposed legislation is currently before parliament in Ireland and New Zealand.

     ↑

267. Committee on Contempt of Court (UK), Report of the Committee on Contempt of Court (December 1974).

     ↑

268. For the status of the New Zealand and Ireland Bills, see New Zealand Parliament, ‘Administration of Justice (Reform of Contempt of Court) Bill’, Bills and Laws <www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_77664/administration-of-justice-reform-of-contempt-of-court>; Justice Committee, Final Report (Administration of Justice (Reform of Contempt of Court) Bill 39-2 (Web Page, April 2019) <www.parliament.nz/en/pb/sc/reports/document/SCR_86592/administration-of-justice-reform-of-contempt-of-court>; Houses of the Oireachtas, ‘Contempt of Court Bill 2017’, Bills & Acts (Web Page) <www.oireachtas.ie/en/bills/bill/2017/117/>.

     ↑

269. Law Reform Commission of Western Australia, Review of the Law of Contempt (Report, Project No 93, June 2003) 17.

     ↑

270. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report No 140, 2017) 55–7. See the Justice Committee’s suggested amendments to the proposed Bill: Justice Committee, Final Report (Administration of Justice (Reform of Contempt of Court) Bill 39-2 (Web Page, April 2019) <www.parliament.nz/en/pb/sc/reports/document/SCR_86592/administration-of-justice-reform-of-contempt-of-court>.

     ↑

271. See paragraph [7.21].

     ↑

272. See Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361, 370–1. Rich suggested separating the offence from the defence. The test for finding sub judice would be a strict test and the consideration of whether the publication was a matter of public interest would become an isolated defence which would allow for discretion based on the facts.

     ↑

273. Justice Committee, Final Report (Administration of Justice (Reform of Contempt of Court) Bill 39-2 (Web Page, April 2019) 12–13 <www.parliament.nz/en/pb/sc/reports/document/SCR_86592/administration-of-justice-reform-of-contempt-of-court>.

     ↑

274. As summarised in Law Commission (England and Wales), Contempt by Publication, (Impact Assessment, 2012).

     ↑

275. Frank Vincent, Open Courts Act Review (2017) 110 [441] <https://engage.vic.gov.au/open-courts-act-review>.

     ↑

276. Ibid; Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103.

     ↑

277. Elizabeth Greene and Jodie O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Patrick Keyzer, Jane Johnson and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 103–5.

     ↑

278. Ibid 103–104. Trial by judge alone is an option in Queensland, New South Wales and Western Australia: Criminal Code 1899 (Qld) s 615; Criminal Procedure Act 1986 (NSW) s 132; Criminal Procedure Act 2004 (WA) s118.

     ↑

279. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 107; Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109, 116.

     ↑

280. For a comparison of the US and other jurisdictions to Australia, and their use of remedial options, see Michael Chesterman, ‘OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America’ (1997) 45(1) The American Journal of Comparative Law 109; Elizabeth Greene and Jodie O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Patrick Keyzer, Jane Johnson and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 106; Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361, 366–8. Other remedial options in the United States include: sequestration of the jury ie isolating them for the duration of the trial or bringing in jurors from different areas of the country where publicity has not been as significant.

     ↑

281. Roxanne Burd and Jacqueline Horan, ‘Protecting the Right to a Fair Trial in the 21st Century—Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36 Criminal Law Journal 103, 117–8; Zak Rich, ‘The Past and Future of Sub Judice Contempt: A Historically Contingent Rhetoric, a Modern Age Threat, and the Lessons to be Learned from the United States’ (2010) 15 Media and Arts Law Review 361, 357–7.

     ↑

282. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 50 [3.221].

     ↑

283. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 53 [2.184].

     ↑

284. Jury Act 1995 (Qld) s 47. In New South Wales, a judge may examine a juror on oath about exposure to prejudicial material during a trial: Jury Act 1977 (NSW) s 55D.

     ↑

285. Jury Act 1995 (Qld) s 47(1).

     ↑

286. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 50 [3.221].

     ↑

287. Jury Act 1977 (NSW) s 55D.

     ↑

288. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 50 [3.221].

     ↑

289. Juries Act 2000 (Vic) s 32(3).

     ↑

290. Victorian Law Reform Commission, Jury Empanelment (Report No 27, May 2014) 50 [3.221].

     ↑

291. Ibid 49 [3.220].

     ↑

292. The Law Reform Commission, Contempt (Report No 35, 1987) 200–1 [345]. See for a discussion of the disadvantages, such as cost and time, of relying on remedial options: New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 32–3.

     ↑

293. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report 140 2017) 78 [4.40].

     ↑

294. For the oath or affirmation of jurors on empanelment, see Juries Act 2000 (Vic) sch 3.

     ↑

295. Juries Commissioner’s Office Victoria, Supreme Court of Victoria, Juror’s Handbook (2012). The Juror’s Handbook explains the role of the jury, the standard of proof to be applied and the need for decisions to be based in the evidence heard or seen in court, amongst other things.

     ↑

296. Victoria Law Reform Commission, Jury Directions, Final Report (2009) 7.

     ↑

297. Dupas v R (2010) 241 CLR 237, 246–247.

     ↑

298. Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012) 186.

     ↑

299. Ibid. See, eg, the High Court’s description in Dupas v R (2010) 241 CLR 237, 246 [21] of the trial judge’s directions given prior to the start of a murder trial.

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300. Law Commission (New Zealand), Juries in Criminal Trials Part Two—A Summary of the Research Findings, Preliminary Paper (1999) [7.45]; New South Wales Law Reform Commission, Contempt by Publication (Report No 100, 2003) 29 [2.50]; Jacqueline Horan, Juries in the 21st Century (The Federation Press, 2012), 73, 186.

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301. Cheryl Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ (2013) 6 Criminal Law Review 483, 488.

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302. Benbrika v R (2010) 29 VR 593; Martin v R (2010) 202 A Crim R 97.

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303. Elizabeth Greene and Jodie O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Keyzer, Johnson and Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012), 116.

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304. Ibid citing V Gordon Rose and James R P Ogloff, ‘Challenge for Cause in Canadian Criminal Jury Trials: Legal and Psychological Perspectives’ (Pt Criminal Law Quarterly) (2002) 46 Criminal Law Journal 210, 236.

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305. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 112–117.

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306. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute (Report 140, 2017) 76 [4.32].

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307. Law Commission (England and Wales), Contempt of Court (1): Juror Misconduct and Internet Publications (Report No 340, 2013) 112–17.

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308. Ibid.

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309. Law Commission (New Zealand), Reforming the Law of Contempt of Court: A Modern Statute, Report 140 (2017) 79 [4.50].

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310. Jane Johnston et al, Juries and Social Media: A Report Prepared for the Victorian Department of Justice (Report, 2013) 24 [5.2].

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311. Ibid.

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312. Elizabeth Greene and Jodie O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Keyzer, Johnson and Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012), 119.

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313. Farrah Tomazin and Sumeyya Ilanbey, ‘Andrews Government Considers “Judge-only” trials for Criminal Cases’, The Age (Web Page, 13 December 2018) <www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-p50m5u.html>.

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314. Sharon Rodrick, ‘Achieving the Aims of Open Justice? The Relationship Between the Courts, the Media and the Public’ (2014) 19(1) Deakin Law Review 123, 154; Rachel Hews and Nicolas Suzor, ‘“Scum of the Earth”: An Analysis of Prejudicial Twitter Conversations During the Baden-Clay Murder Trial’ (2017) 40(4) University of New South Wales Law Journal 1604, 1612.

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315. Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019).

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316. Ibid 5 [2.5]. The report referred to evidence submitted by academic Professor Cheryl Thomas arising from her 10-year research project on the jury system. The research led to the formulation of a revised juror notice, ‘Your Legal Responsibilities as a Juror.’

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317. Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019).

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318. UK Government, ‘Contempt of court’, Your Rights and the Law (Web Page) <www.gov.uk/contempt-of-court>.

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319. Attorney-General’s Office (UK), Response to Call for Evidence on the Impact of Social Media on the Administration of Justice (March 2019) 11 [3.8].

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320. Ibid 8 [2.17].

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321. Ibid 12 [3.10].

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322. Rachel Hews and Nicolas Suzor, ‘“Scum of the Earth”: An Analysis of Prejudicial Twitter Conversations During the Baden-Clay Murder Trial’ (2017) 40(4) University of New South Wales Law Journal 1604, 1633. See the UK Government’s proposals for regulation of the digital economy (encompassing online content, platforms and applications) including the imposition of a duty of care on users, holding companies accountable for tackling online harms, including contempt of court: UK Government, Online Harms White Paper (Web Page, April, 2019) www.gov.uk/government/consultations/online-harms-white-paper 7, 41–2.

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