If you’ve heard the words Best Buy, Mail Kimp or Leakin Park recently, then you have heard about Serial. In the next 24 hours listeners all over the world will be tuning in to catch the final episode of season one of the blockbuster podcast, which has enthralled millions. Serial is the brainchild of American radio producer Sarah Koenig from This American Life, and over the course of 12 episodes she has investigated the 15-year-old murder case of Hae Min Lee, a high school student who was found dead in a Baltimore park after going missing. Her ex-boyfriend Adnan Syed was convicted for the crime after his friend “Jay” testified against him, but Adnan maintains his innocence to this day. Listeners are hoping that tonight’s episode will give them an answer or a sense of closure.
Koenig has raised enough money through sponsorship and crowdfunding for a second series, but Australian listeners shouldn’t get their hopes up for an Australian story to be used — our defamation laws make telling a similar story almost impossible. The story hinges on poking holes in Jay’s testimony, as well as investigating if Syed’s lawyer represented him properly. Australian media law experts say that American laws, which take into account the First Amendment’s right to free speech, make telling the story possible. Andrew Kenyon, director of the Centre for Media and Communications Law in Melbourne Law School, says even if a reporter doesn’t accuse someone of lying directly, if listeners or readers could infer such an imputation, the journalist could be liable: “It could be much more difficult here because if there’s an implication from what you publish that this person lied, then here you’ve got to find a defence for that, that it’s true or an honest opinion”.
In a American court, the burden of proof is on the plaintiff, but in Australia the burden of proof is on the defendant, says Kenyon. “Whereas in the US it does depend what state you’re in and what category of plaintiff you are, but the plaintiff has to prove it was false and that the publisher actually knew it was false or had serious doubts and went ahead anyway, that you knew you published a lie, which is a much harder test to meet.”
Kenyon says that American laws allow for the discussion in podcasts like Serial to be much more wide ranging than in a jurisdiction such as Australia. Even though the podcast has been heard all over the world, legal experts say that “libel tourism” wouldn’t be of much use to the people mentioned by Koenig, as the United States does not enforce such judgments made in other jurisdictions.
University of Sydney associate law professor David Rolph says that US law “decisively favours” freedom of speech, and the shifting burden of proof is “significant”.
Rolph says Australian reporters face a “chilling effect”, “so even if you don’t get sued, even the risk of that often inhibits media organisations from making those allegations in the first place”.
Dan Svantesson, a law professor at Bond University, says that even if the podcast doesn’t cast blame at the end of the story, there could be implications from each individual episode. “One problem for them is even if the whole story they tell turns out not to defame someone, but each piece of information, individual snippets could be defamatory in their own right.”
The podcast has also inspired an active community of amateur detectives, many of whom publish extra information and theories on Reddit. There is even a group trying to crowdfund an extended investigation past tomorrow. It would be a legal minefield under Australian law, although experts tell Crikey there would be little point in suing individuals.
There are also ethical questions surrounding broadcasting the story in this way, and the effects on the families involved have been reported. So if you’re an Australian journalist and Serial Mark II turns up on your desk, hold the excitement — and call a lawyer.