Do people really believe what they read on this newfangled thingamybob, this internet whatsit?

Not according to 59-year-old Victorian Supreme Court judge Murray Kellam. Yesterday Justice Kellam decided to suppress the names of three AFL players who had tested positive for illegal drugs — even though the names have appeared on several websites and discussion rooms:

Can it be said, however, that a “discussion forum” which enables opinions, gossip, trivia, rumour and speculation to be published as an assertion of fact by anonymous contributors places the information the subject of such discussion, into the public domain?

… In my view, the fact that such speculative gossip, innuendo, and assertion by unknown persons has been placed on the web sites of various discussion … does not make confidential information lose its confidential nature.

Having recently emerged from our own tangle with the law – after the NSW Supreme Court issued an injunction to stop republication of the Llewellyn affidavit after it appeared in Crikey — it’s hard not be dismayed at this latest attempt by the courts to grapple with online publishing.

A half-hour search of the three names this morning revealed half a dozen websites where this information still exists. And that’s a big problem. If judges insist on seeing it as their role to put the genie back in the bottle once information has been published online, they’re taking on a battle they can’t win, and in the meantime they’re signing us up for a form of information apartheid in which only some people are kept in the dark.

Suppression of information in this way just doesn’t make sense — there are legal remedies for publishing material that is defamatory and causes damage in other ways. So why are judges so fond of controlling the media?

Justice Kellam’s decision on the AFL players is based on a jaundiced conception of the public interest – that satisfying mere public “curiosity” isn’t in the public interest. The idea deserves a tick for its potential to spare us from pretty much everything ever published in New Idea, but it’s also fundamentally wrong-headed.

Accurate information is a form of oxygen needed for society to flourish. Its dissemination is an absolute good, even where in the short term it might cause some pain, and even where it can seem at times as though our interest in the information is merely prurient.

In deciding that it’s more important to spare three public figures from admitting to what they did than telling the public the truth Justice Kellam has made a mistake. And all he’s managed to do is guarantee that the three names will be a hot topic of discussion in chat rooms for a long while yet.

Peter Fray

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