Whatever the motives of 3AW’s Neil Mitchell in revealing the names of the Collingwood footballers questioned by police over an alleged incident last weekend, his actions highlight the urgent need for law reform in this area. Should what Mitchell did become a criminal offence?
This might sound an overreaction, but consider this: once a person is named as being investigated by police in relation to a criminal offence, their reputation is put at risk, even though they may be completely innocent. This damage to their reputation can be economic as well as personal. They may lose sponsorship dollars if they are a sportsperson. A person might also be suspended from their employment.
The most prominent and egregious example of the latter fact was the immediate suspension earlier this year by the ABC of The Collectors host Andy Muirhead, after he was charged with online p-rn offences. While the presumption of innocence is a fundamental right in a democratic society, the sad reality is that many people rush to judgement and pronounce individuals guilty once they see their name linked to a police investigation.
This is not the first time Mitchell has used his powerful medium to reveal the names of people being investigated by police. In October 2008, Mitchell stunned Victorian Premier John Brumby when he revealed that senior government minister Theo Theophanous was being investigated by police over an allegation of r-pe. Theophanous beat the charge hands down — it did not even get to trial. But from the moment Theophanous was named, his political career was finished.
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Mitchell is, of course, not alone in his preparedness to name names. Police forces and other law enforcement agencies such as anti-corruption commissions around Australia regularly leak names, particularly of prominent individuals, to friendly media sources.
The law in this area does nothing to protect the individual named. Melbourne criminal lawyer Robert Stary observed this morning that according “to the … letter of the law, [Mitchell] may have been within his rights to name the suspects. But it’s certainly contrary to the spirit of the law.”
If an individual is charged with an offence then they have some legal protection because of the need for the media to be careful in their reporting and through a suppression order. But what about those individuals who are not charged? How do they prevent the mud from sticking?
This is where the law needs to step in. Contemplation needs to be given to making it a criminal offence to publish the name of an individual in circumstances where that person is the subject of an investigation for a serious criminal offence. While it may not be burdensome for an individual if Mitchell and others were to broadcast the fact that Joe Blogs was going to be charged with drink-driving, it is a different story if Joe Blogs has been questioned by police about an alleged r-pe, a fraud or an assault.
Some will say that the introduction of such an offence amounts to an attack on freedom of speech. But that right is not absolute, and it needs to be balanced against the right of an individual to be able to protect their reputation. And the possibility of a criminal charge would seem to be the only way to get the Mitchells and others of the world to understand that their desire for ratings and sensation is not an open book.
*Greg Barns is a barrister and a director of the Australian Lawyers Alliance.