Explainer: Contempt of court – dos and the don’ts for journalists

17 December 2012

Written by: Steinar Ellingsen

What is contempt of court?

The Media, Entertainment and Arts Alliance (MEAA) has a code of ethics that journalists must follow, but in addition, there are several laws that determine the legality of reports, one of which is contempt of court.

Eo-scale_of_justice

Scales of Justice (source: wikimedia commons)

So what is it you may ask?

The News Manual’s glossary defines contempt of court as, ‘disregarding a court’s orders or in any way interfering with the way the court does its job.’ It is also commonly known as trial by media, where the impact of media coverage creates a widespread perception of either innocence or guilt before a verdict has been reached in a court of law.

In Australia, defendants have the right to a fair trial, without prejudicial remarks or statements being published in external resources, therefore journalists can be found to be in contempt of court if their coverage is deemed to influence the outcome of a case while it is in sub judice.

What classifies as being in contempt of court and what are the consequences?

Out-Law classifies contempt of court as the following:

— obtaining or publishing details of jury deliberations;

— filming or recording within court buildings;

— making payments to witnesses;

— publishing information obtained from confidential court documents;

— reporting on the defendant’s previous convictions;

— mounting an organized campaign to influence proceedings;

— reporting on court proceedings in breach of a court order or reporting restriction;

— breaching an injunction obtained against another party;

— anticipating the course of a trial or predicting the outcome; or

— revealing the identity of child defendants, witnesses, victims or victims of sexual offences.

Depending on the severity of the journalist’s actions, the punishment will vary. What’s more; the editor, publisher and owner of the media agency may also be held responsible.

What defences exist for being in contempt of court?

A number of mechanisms are available when defending a charge of being in contempt of court.

Media agencies and their lawyers can argue that they were not in direct knowledge that the court case had begun when the report was published. However this argument only holds up in if they can prove they approached the police and the courts to find out the details of the case.

Another defence mechanism is if the journalist can prove what was published is in the public interest. However as the Victorian Government Solicitor’s Office states in their publication Managing the Risk of Sub Judice Contempt, ‘The question becomes whether the public interest in the administration of justice is outweighed by the public interest in the discussion of public affairs.’

What is the correct way to report during sub judice?

Journalists should ask themselves if the information they publish will result in legal consequences for themselves and their employer. Is the information going to hinder the fairness of the trial? Will it prejudice the person before the courts?

The other thing to consider is whether what is to be reported is fair, accurate and without malice. Journalists must not provide information from one side of the story without mentioning information from the other side.

It is also up to the journalist to keep a neutral stance, in terms of the tone and certain language used in the article. While emotive language can bring about interest to a piece, it is not required when reporting on court cases.

But no doubt the easiest and safest way for a journalist to be sure not to be found in contempt of court is to report just the basic facts.

Prior to the court case being in sub judice, an article can clearly outline what took place and quote the people involved, but as soon as a case begins, journalists are very limited in what they can report.

What examples have there been?

There have been two major cases in recent times that were based around contempt of court, one involving 3AW presenter Derryn Hinch and the other involving the current case of the murder of Jill Meagher.

At the start of this year, prominent radio host Hinch was in trouble with the law not for the first time. Hinch’s legal ramifications began when he was first sent to jail in 1980 for naming a Melbourne priest, whose name was part of a suppression order as a paedophile.

In 2011, he was then banned from presenting on any media platform due to the release of two names of sex offenders who were also on a suppression order.

And finally, earlier this year Hinch again named a well-known Sydney businessman, whose name was also suppressed in a court order as a convicted paedophile. In addition, Hinch also named the victim of the case, who later claimed she never gave him permission to do so.

Overall, the shock-jock has time and time again gone against the laws of the Australian legal system, for what he believes is in the public’s best interest, but he has paid the price.

The other example is the current case regarding the death of Meagher, where the defendant, Adrian Ernest Bayley, has been the target of several accusations, attacks and negative press, which he and his lawyer Helen Spowar, believe could affect his chances of a fair trial.

‘It is clear from this material that the accused is a target of intense and almost unprecedented attention, scrutiny and speculation as to his background,’ Spowar said during the court proceedings.

The judge did order a suppression order, which has now resulted in a strict limitation on what journalists are allowed to print in regards to Bayley and the case, as well as trying to stop the effects of social media’s negative portrayal of Bailey.

Most of what Spowar was referring to was the posts on social media, but nonetheless, it can act as a lesson for journalists that what gets published to the widespread media world — be it online, print, broadcast or social — has a huge effect on the proceedings in court.

Ashley Shenker is a third-year Bachelor of Journalism student at La Trobe University.  You can follow him on Twitter: @shenks7.