On Tuesday a court on the other side of the world issued an injunction at a pre-trial hearing. Shortly afterwards in Australia, our media companies got the lawyers in.

The pre-trial hearing in the United Kingdom was about Australian children’s entertainer Rolf Harris, and what was said was suppressed by the judge in order to not influence a jury. For the Australian reporters in the court room, it was big news. Editors decided to splash the story on the front pages. But only in print.

There was a time when British courts wouldn’t have bothered Australian media barons. British courts, after all, do not have jurisdiction over Australian territory. But that means little when media companies with British assets publish in a medium that can be read from the UK. Crikey understands both Fairfax and News could have been held in contempt of court and potentially fined through their British assets, and reporters themselves could have been at risk if they had put the stories online. Fairfax went as far as to remove the journalist’s byline from the story in the newspaper.

That decision reveals much about the curious state of the suppression order. Suppression orders are more powerful than ever, but they’re also more ineffectual. As the Australian media were carefully wording their stories, Crikey found online forums freely and openly discussing what had been said in court.

Minter Ellison lawyer Peter Bartlett, who counts Fairfax Media among his clients, says media companies respect suppression orders and will go out of their way to make sure they don’t breach them. These days, that effectively prohibits publication online, given geoblocking (checking the location of someone’s IP address before allowing them to access your website) is easy to get around. “As I understand it, media companies are looking at [geo-blocking], but it’s not that easy,” Bartlett said. “And the consequences of making an error are significant. A company that breaches a suppression order in Victoria is liable for a penalty of up to $420,000.”

Individuals in Victoria are liable for up to $84,000 or time in jail if they refuse to pay, such as Derryn Hinch’s recent 50-day stint behind bars. Hinch makes a habit of breaching suppression orders, but as the media fragments and everyone is empowered to publish freely and widely, suppression orders risk becoming unworkable altogether.

The reaction to this has been to beef up the justice system’s powers of suppression. Most Australian states and territories have introduced laws allowing them to issue national suppression orders, and overseas, particularly in the UK, the power of judges and magistrates has expanded even further.

Enter the British super-injunction — an all-encompassing suppression order that suppresses mention of not only the proceedings, but also suppresses mention of the order itself. The argument for them was that suppressing defendants’ identities wouldn’t be enough, as the public would be able to guess identities from circumstantial facts. The system’s ineffectiveness was demonstrated by a super-injunction surrounding any mention of British footballer Ryan Giggs’ love affair. Social media users in the hundreds of thousands began wilfully breaching the order, and Giggs was eventually named in Parliament by a campaigning Lib Dem.

Michael Bradley, managing partner at Marque Lawyers, says suppression orders are “out of control”. He says they’re important when it comes to protecting the identity of victims and to ensure the accused gets a fair trial, but now they’re being issued to prevent reputational and commercial damage to people involved in court cases.

“Historically, courts have been very reticent to issue such orders,” he said. “Their brief was open justice, so they would bend over backwards to maintain that and only suppress things when there was a compelling public-interest reason. That’s largely gone out the window now.”

It’s likely that yesterday alone, Bartlett says, seven or eight suppression orders would have been issued just in the state of Victoria. Concern about this led to the introduction of the Open Courts Act in 2013, which requires courts to operate under a “presumption in favour of disclosure”. Bartlett says he has yet to notice a drop in the number of suppression orders issued in the state, but a similar law in South Australia has had that effect.

Mark Pearson, professor in journalism and social media at Griffith University, says courts need to consider very seriously the point of a suppression order. Being able to justify the order, he says, is becoming increasingly important where the key breachers of an order are not media organisations, but the broader public. “If a suppression order is to protect say a victim of a sexual assault from being identified, you can see very good reasons why that might be the case,” he said. “If it’s to protect an accused from a prejudiced jury, then I think the days are passing where that can be at all effective.”

Bradley says it’s the courts and justice system that have to change. Courts need to reconsider their assumptions about juries, or, if they can’t do that, to reconsider whether we need jury trials at all.

“This is an attitude created from the days when the media was controllable,” he says. “The creation of the internet blew everything up, and that created far more danger for the court system and for justice.

“As soon as someone is charged, the internet lights up with their entire criminal and personal history. It’s a feeding frenzy, and completely uncontrollable. That provokes the courts into overreaching to get some control back. And of course, they can’t. What’s happened is a predictable reaction, but it’s completely the wrong way to approach it. The horse has bolted, and you can’t shut down the internet. If the courts want to manage this, they need to think of different ways of preserving their integrity. Other than making court orders that aren’t going to work.”

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey