Right now the focus of media law reform in Australia is on privacy, and that is understandable, particularly since it is so long overdue.
But this week has also made it clear that there is another area of law — contempt of court — that needs attention, creaking as it is with awkwardness and irrelevancies in the new media age. Indeed, it would be fair to say that the media often treat contempt law with contempt. And at other times with undue caution.
On Wednesday this week, the nation’s news services took very different approaches to publication of the details of the arrest in the US of businessman Paul Peters, suspected of being the man who fixed a fake bomb to teenager Madeleine Pulver.
All the nation’s newspapers ran big with the news of the arrest, and photos of Peters, but some obscured his face, and other’s didn’t.
Why is it so?
It is a commonplace of media law that it is contempt of court to run a picture of an accused person where identity is going to be an issue at the trial — that is, when some witness is going to have to search there memory in order to identify the suspect.
The reason is that seeing a picture of the accused in the media is thought to have the potential to make eye-witness memory less reliable.
Problem is, as with all areas of contempt, the boundaries of what is and is not permissible are blurry. And the law is in any case inadequately policed, which means newsroom practice can shift a long way without principles being tested. And, over time, some areas of the law are honoured in the breach.
In this case, there are several areas of doubt. Is identity going to be an issue at the trial? We know that the case is largely circumstantial, and we know that security camera footage is key.
Also, how long will it be before it comes to court? If Peters fights extradition, it could be months or even years before witnesses are called to give evidence.
So news services apparently got different advice. The Herald Sun ran the picture with no suppression. The Daily Telegraph pixilated it. The Australian used a big black box over the eyes — which were the only part of the face that Maddie Pulver could see, according to news reports. The Sydney Morning Herald ran a picture of Peters unobscured, but oddly obscured the faces of the people he was photographed with.
All this apparently because of conflicting legal advice, sensitivity in the state from which any eye witnesses and jury members will presumably be drawn, and different levels of caution.
Meanwhile, all media outlets are understandably preoccupied with trying to figure out the background to the case. This morning, The Sydney Morning Herald and The Age have run pieces giving information on Peters, including his alleged bragging and anger management problems.
Now, isn’t this prejudicial? Well perhaps and perhaps not. It will be a long time before a jury sits on the matter. Then again, we all know that material on the internet lives forever, which means that when the case does come before the courts, it is likely that a quick Google will turn it up. Jury members are usually warned by judges not to go a-Googling, but commonsense suggests that some may.
New media makes all areas of media law more difficult, but also more important.
The law of sub judice contempt — publication of material likely to prejudice a case before the courts — is a movable feast.
The leading text book from which most Australian journos learn their law, Mark Pearson’s The Journalist’s Guide to Media Law, states that once charges have been laid, reporting of crime should be confined to the “bare facts of the crime … with no information that might identify the suspect or prejudice [a] future jury against him or her … stay away from witnesses”.
The test is whether reporting will have a real tendency to prejudice the case.
Yet there seems to be an unexamined practical acceptance all round that when a case is really interesting or particularly newsy, the law must to some extent give way to the pressure of public curiosity
What is needed, in everyone’s interests, is fair and clear rules, rigidly policed. And in this new media age, we need national laws, rather than the current state-based approach. There is room to argue about what those rules should be. Perhaps sub judice contempt should be liberalised.
But at least as much attention should be given to this as to privacy. Unclear laws that shift under pressure are not in anyone’s interests.