BCM 113 – media ethics and law blog post 1 – summary and questions
Recap from lecture:
Q: What are the two sources of law in Australia?
1. Statute law: legislation passed by state, territory and federal parliaments.
2. Common law: set out in the decision of judges, as it has been decided in court cases —i.e. ‘precedent’, which refers to judges’ interpretation of laws, and which asserts that “courts are bound to follow the past decisions of courts superior to them within the court hierarchies” (Pearson and Polden p. 63).
Source: Pearson, M and Polden M. 2019. The Journalist’s Guide to Media Law 6th edition, Allen and Unwin, Sydney, Australia.
Q: What is the difference between criminal law and civil law?
There are two categories of law:
1. Criminal law: “…concerns offences against the state, for which offerenders can be
tried and punished” (Pearson and Polden p. 65).
2. Civil law: “…concerns the rights and obligations of individuals or companies in their
relationships with other individuals or companies” (Pearson and Polden p.
66).
Source: Pearson, M and Polden M. 2019. The Journalist’s Guide to Media Law 6th edition, Allen and Unwin, Sydney, Australia.
Q: What is meant by the ‘open justice’ principle?
Open justice is one of the fundamental attributes of a fair trial. That the administration of justice must take place in open court is a ‘fundamental rule of the common law’ The High Court has said that ‘the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances’.
Q: What does ‘sub judice’ refer to?
Sub judice: from the Latin meaning 'under a judge', this area of contempt restricts the publication of material that its intended to, or has a 'real and definite tendency' to, prejudice an upcoming trial or, more generally, to interfere with the due administration of justice.
Contempt of court
“Contempt of court” means words or actions that interfere with the proper administration of justice or constitute a disregard for the authority of the court. Contempt laws are separate from other kinds of law.
Despite ‘open justice’ principle there are restrictions placed on publishers when reporting on crime and the justice system.
Q: In what ways might journalists and media practitioners be held in contempt of court?
- Scandalising the court
- Revealing jurors’ deliberations, revealing what happens in closed court
- Contempt in the face of the court
- Disobedience contempt
- e.g Derryn Hinch: “Serial offender”
- First Australian journalist in 50 years to go to jail for contempt of court.
2016: Used parliamentary privilege in maiden speech to name and shame five alleged sex offenders
2014: 55 days in prison for publishing Adrian Bailey’s criminal history on his blog.
2011: Five months house arrest and total media ban after naming child sex offenders, as he wanted a public register for whereabouts of convicted felons after their release.
1996: Faced jail for naming victim of sexual offence.
1980s: Fined up to $15,000, once sentenced to jail for three separate name-and-shame offences
What can be reported?
- Before any on is charged we can report details of crime, talk to witnesses.
- Rules change when court proceedings become “pending” or imminent. This is when a warrant issued for an arrest, or someone is charged by police, and the case becomes sub judice (ore ‘before the court’.
- When someone is charged you have to ensure that reporting of the crime does not jeopardise the defendant’s fair trial.
Reporting before arrest
- Details of crime
- Police profile of suspect
- Statements by witnesses
- Police Interview with witness
Reporting after arrest
- Broad details of crime (Time and place)
- Material on the accused must be limited to information supplied to the court
- No witness or police statements (unless given in court)
- Information on the condition of the victim
- No pictures if identity of the accused is an issue
Ethical court reporting
- Be accurate
- Be balanced
- Courts are public places, but personal privacy can exist.
- Do not mislead interview subjects.
- Separate fact from opinion
- Think about your audience, especially if the crime is horrendous
- Make sure references to race, sex, nationality, sexual orientation etc are relevant to the story.
- Correct errors
Be aware…
- It is a defence against publishing prejudicial macer while a case is sub judice that you did not know, and had no reason to suspect, that proceedings were pending or imminent.
- The law often refers to the moment when an arrest, charge or warrant is "pending". In this sense, pending means "happening".
- Do not identify children before courts. Under exceptional circumstances, a judge may allow the publication of a child's name, but this is rare and it is your duty to check you have understood the order.
Five main risks
- Publishing matter likely to prejudice a fair trial
- Interfering with the course of justice
- Scandalising the court
- Refusing to name a source of information
- Photography or electronic recording within the court precincts
See: The News manual. “Chapter 68: Contempt”
Tutorials
ETHICS:
- Moral principles that govern a person’s behaviour or the conduct of an activity. Social, legal and professional norms, expectations and guidelines.
- Not legally binding.
- Ethical violations not punishable by government unless they also violate the law.
LAW:
- System of widely accepted rules and regulations, laid out by an authority.
- Rules and regulations set by government and are legally binding.
- Violation of law is punishable e.g. fines, restricted freedoms, or imprisonment.
1. Why, and how, do ethics and the law dictate our work as communication and media professionals?
- Impacts what and how you can report on particular cases or stories in the media
- Sometimes have to make morally right decisions and face legal consequences
- Sometimes you have to sacrifice your morals to keep your job
- It is important to value ethics and law on case to case basis but be vigilant about important decision making that will affect others
2. Which do you consider the most important (law or ethics) and why?
Ethics, I would rather be unemployed and writing about important social and political issues on the internet than sacrifice my beliefs so a superior can make more money.
3. What is contempt of court, and why do we have such laws?
“Contempt of court” means words or actions that interfere with the proper administration of justice or constitute a disregard for the authority of the court.
Contempt of court is defying a courts authority or disrespecting a court interfering with the proper proceedings. Contempt of court laws protect the course of justice, public interest, and respect for individuals and officials within the legal system so people don’t see themselves as above the law.
Despite ‘open justice’ principle there are restrictions placed on publishers when reporting on crime and the justice system.
Contempt laws are separate from other kinds of law.
Sub judice contempt (‘sub judice’ = under or before a judge or court)
Contempt by publication and Sub judice contempt (‘sub judice’ = under or before a judge or court)
- Scandalising the court
- Revealing jurors’ deliberations, revealing what happens in closed court
- Contempt in the face of the court
- Disobedience contempt
4. What are injunctions and suppression orders, and how do they fit into contempt laws?
A suppression order is made when a court prohibits the disclosure of information about a legal case. These are ordered in Australia for a variety of reasons – in the interest of national security, to protect the safety of witnesses, or to guarantee a fair trial.
When someone is on trial, the jury cannot see sensitive information, such as rejected evidence or the accused’s prior convictions.
If news like that is widely publicised, it can unfairly influence jurors. This means the trial can be declared a mistrial and the person acquitted.
For this reason, even without suppression orders, no reporter in Australia can report the prior convictions of a person on trial.
4a. What kinds of cases have suppression orders?
Under Victorian and New South Wales law, the following reasons can be grounds for suppression order:
- Preventing prejudice to the proper administration of justice
- National or international security
- Protecting the safety of a person
- To avoid causing undue distress to a witness who suffered a sexual offence or family violence offence
- To avoid identifying a child who is a witness
- If the victim was a child at the time of the offence
- Suppression orders are commonly used in all Australian jurisdictions in sexual offence trials.
Source: theguardian.com/law/2018/dec/14/suppression-orders-australia-why-you-cant-read-what-you-may-want-to
5. What do you need to be aware of when publishing (and posting) about crime and the courts?
What can be reported?
- Before any on is charged we can report details of crime, talk to witnesses.
- Rules change when court proceedings become “pending” or imminent. This is when a warrant issued for an arrest, or someone is charged by police, and the case becomes sub judice (ore ‘before the court’.
- When someone is charged you have to ensure that reporting of the crime does not jeopardise the defendant’s fair trial.
Reporting before arrest
- Details of crime
- Police profile of suspect
- Statements by witnesses
- Police Interview with witness
Reporting after arrest
- Broad details of crime (Time and place)
- Material on the accused must be limited to information supplied to the court
- No witness or police statements (unless given in court)
- Information on the condition of the victim
- No pictures if identity of the accused is an issue
Ethical court reporting
- Be accurate
- Be balanced
- Courts are public places, but personal privacy can exist.
- Do not mislead interview subjects.
- Separate fact from opinion
- Think about your audience, especially if the crime is horrendous
- Make sure references to race, sex, nationality, sexual orientation etc are relevant to the story.
- Correct errors