Broadcaster Derryn Hinch faced court for breaching a suppression order relating to rapist and murderer Adrian Ernest Bayley. (Image: AAP/Julian Smith)

Victoria is well known as the suppression order capital of Australia, issuing far more of the restrictive orders than other jurisdictions. But the problem of policing online giants including Google, Facebook and Twitter renders suppression orders increasingly pointless.

Where, in previous decades, courts could advise beat reporters and legacy news outlets on details and cases that were suppressed, there’s no such mechanism in place for social media or even Google search algorithms to prevent publication of suppressed details. Publishing the details of suppression orders online for anyone to access, including what is suppressed, would in many cases defeat the purpose of the order.

Monash University acting head of journalism Johan Lidberg, who specialises in journalists’ access to information, told Crikey that suppression orders existed in order to ensure due process. “That must always be the starting point, but how do you police it with the enormous changes to the media landscape?” he said. “It’s pretty pointless to have this law or rule that you can’t police.”

In recent years, audiences might not have been able to read about some details of high-profile cases in the newspaper, or learn certain names from TV news bulletins, but could find them via Google searches, Twitter posts and Facebook groups, published without any real consequences for the publishers. In some cases, Google algorithms will prioritise content or autocomplete searches that breach suppression orders.

“We have cases where the law is hopelessly behind,” Lidberg said. “What’s the point of a suppression order if it’s so far behind? Criminals do have a right to due process, it’s what sets us apart from authoritarian regimes.”

When Jill Meagher’s murderer Adrian Bayley was first arrested in Melbourne, his name was suppressed by the court in order to ensure a fair trial. But social media posts about the high-profile case posed an ongoing issue for the court proceedings — Lidberg said Victoria Police had to step in to get Facebook to take down one hate page about Bayley that had attracted tens of thousands of likes before it was removed.

“That was just a mob mentality,” Lidberg said. “He was found guilty in the end, but the starting point for any of this needs to be a fair application of the law for everyone.”

There was no further punishment in that case for Facebook, but then-commentator and current Senator Derryn Hinch, was jailed for contempt of court for breaking suppression orders related to Bayley’s criminal history on social media and his website. 

Lidberg said that, firstly, courts should only be using suppression orders when they’re needed — having fewer suppression orders on the books could make them more manageable to police. Then, governments need to stand up to the tech giants.

“Myself and many with me have argued for years now that the giants — Facebook, Google, even Amazon — should ‘fess up to the fact that they’re publishers,” Lidberg said. “There are economic reasons they’re not saying they’re publishers — they’d have to hire a lot of people who look at what’s published to make sure it complies with the law. You can do a lot with artificial intelligence, but not everything.”

Lidberg said that in order for governments to introduce stronger regulation, there may need to be another issue such as the Adrian Bayley case to gather steam. “The techlash is in full swing now,” he said. “Governments have a big role to play here to make sure the social media giants act. If there is a high profile case that can’t be kept under wraps despite suppression orders, that could force them to act.”

Crikey approached Google for comment, but they did not respond by deadline.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey