The family and former colleagues of Jill Meagher have urged social media users not to publish prejudicial statements about the man charged with the rape and murder of the ABC employee because of fears they could impact on a future trial.
Media law experts have also warned that social media users — even though they have no training in media law — could also be sued for defamation or contempt of court over comments about the case posted on blogs, Facebook or Twitter.
Since the arrest of a 41-year old man overnight, several Facebook groups have been created attacking the accused killer — including one calling for his public hanging. Photos of the accused man have been published, as have comments assuming he is guilty of the crime. Highly-read conservative News Ltd commentator Andrew Bolt this morning posted a link to a blog containing information about the accused man’s background.
Mark Polden, one of Australia’s foremost media law experts, says such commentary has potentially dire consequences for the administration of justice and should be avoided.
“It’s not unfathomable that there could be such a conflagration, such a firestorm of social media commentary about a particular case that an application could be made that an individual cannot get a fair trial,” he said. “Individuals need to ask themselves: does what I’m doing have the potential to interfere with a fair trial? Could my sense of moral outrage lead to someone not being able to get a fair hearing?”
According to Polden, the most important no-go areas in cases that may be heard before a jury are:
- Commentary on the guilt or the innocence of the accused
- Details of prior criminal convictions or charges
- The publication of photos of the accused.
“The prudent view is that from the moment of arrest people are under the protection of the courts,” Polden told Crikey. “When a matter is sub judice [under judgement] you should limit yourself to objective facts of what has occurred.” Expressions of grief and anger — as well as debate about issues raised by a case (such as public safety) — are also acceptable.
The publication of photos of the accused is problematic because they could influence witnesses in their identification.
Polden says it is unlikely an individual Twitter or Facebook user with no public profile would be pursued over contempt of court or interfering with the administration of justice — particularly if the content is quickly removed by the social networking sites. The key question is whether the material would interfere with the case as a “matter of practical reality” rather than as a “remote possibility”.
That’s why he says high-profile commentators like Bolt should be particularly cautious.
“He has a lot of followers and there’s a risk he may have put himself in a difficult position if he’s directed people to material that is adverse to someone under the court’s protection,” Poulden said.
In March 1993 Alan Jones and 2UE were fined $77,000 after the broadcaster’s on-air comments caused the trial of a policeman to be aborted.
ABC Lateline reporter Hamish Fitzsimmons this morning tweeted that spreading information about the accused is not in anyone’s interest, as did the Victoria Police. According to ABC reporter Simon Cullen, Meagher’s husband Tom Meagher has also warned that negative comments on social media sites may hurt legal proceedings.
Journalism educator Julie Posetti tweeted a useful guide for those confused about what can, and cannot, be published.
While acknowledging Twitter and Facebook could do more to educate users about these issues, Polden rejects statements made earlier this year by UNSW academic Catharine Lumby that sub judice laws are out of step with modern technology and need to be reformed.
“People should think about the presumption of innocence and the importance of a fair trial and whether the public interest of someone spewing out 140 characters off the top of their head trumps those things.”