The Victorian Law Reform Commission's proposed a shake-up of the common law contempt of court framework holds troubling implications for Australia's already stark media landscape. Our team analyses the implications.
The VLRC's Report contains 134 recommendations which, if implemented, could seriously affect the media's ability to report on criminal and civil proceedings.
The recommendations risk eroding freedom of speech and freedom of the press.
The Victorian Government is currently considering the recommendations and which components may be implemented.
Here, we summarise the VLRC's recommendations and the various ways in which they could impact the media if introduced.
Introducing a Contempt of Court Act
Currently, the power to prosecute a person for contempt of court is part of the inherent jurisdiction of the Supreme Court. The VLRC has recommended the power be codified in legislation. The proposed Act will include various categories of contempt, including the following categories which are most relevant to the media:
- Publishing material prejudicial to legal proceedings (currently known as sub judice contempt);
- Publishing material undermining public confidence in the judiciary (currently known as scandalising contempt); and
- A new general category of contempt, that will include any other conduct that interferes with, or has a substantial risk of interfering with, the proper administration of justice. It will give courts power to deal with 'unusual' forms of contempt.
The new offences will be tried summarily and the recommended maximum penalties are:
- Sub judice and scandalising contempt – two years imprisonment, 240 penalty units or both (individuals); 1200 penalty units (corporations)
- General contempt – 10 years imprisonment, 1200 penalty units or both (individuals); 6000 penalty units (corporations)
Possible implications of a Contempt of Court Act
We don't believe the introduction of a Contempt Act is necessary to achieve the goals of the VLRC. We remain of the view that the broad codification of the law of contempt is not necessary and may have unintended negative consequences.
Media outlets generally do not seek to prejudice the administration of justice, and where they have doubt about particular publications, they tend to seek advice from their lawyers, who are familiar with the parameters of acceptable publication. This may explain the low number of sub judice contempt proceedings.
We remain concerned that the introduction of this legislation will lead to an unjustified rise in contempt proceedings against journalists. A similar trend was observed in respect of suppression orders following the introduction of the Open Courts Act 2013 (Vic) (Open Courts Act). The enactment of the Contempt of Court Act 1981 (UK) has also led to a significant and unprecedented uptick of contempt proceedings in the United Kingdom. Overall, the changes may lead to an increase in the prosecution of journalists seeking to report on matters in the public interest.
We appreciate the aim of the VLRC in attempting to clarify and unify the law in this area. However, the current common law structure has allowed for the flexibility required to handle these complex matters, which do not necessarily lend well to the rigidity of a legislated approach.
“In our view, the proposed legislative changes are insufficient to comprehensively address all potentially relevant considerations.”
The introduction of a statutory scheme is also unnecessary, in circumstances where the judiciary are capable of assessing the potential adverse impact of publicity on a trial before the Courts. This proposed change is particularly concerning when viewed in light of the media's role in maintaining the transparency and accountability of the Court system. The public rely on the media to remain connected to the judiciary.
We are, however, pleased to see that upper limits to penalties have been imposed. We hope that these limits will function to counteract our concerning culture of suppression, rather than providing a general guide to sentencing.
Reforming sub judice contempt
The VLRC proposes to codify sub judice contempt to ensure that limits on publishing are clearly stated and accessible to the media, along with bloggers, social media users and citizen journalists.
New test and factors to be considered
Currently, a person will be guilty of sub judice contempt if they publish material that has a ‘real and definite tendency’ to prejudice legal proceedings. The VLRC recommends that a person will be liable only if the publication is prejudicial to legal proceedings and there is substantial risk that jurors or witnesses will become aware of it and read it during the proceeding.
The VLRC has proposed a list of factors that will help the court determine whether a substantial risk exists:
- the medium in which the publication is presented and its potential accessibility and durability;
- the content of the publication;
- the character of the publication, including the language and tone used in it; and
- any other circumstances relating to the publication's effect.
In criminal proceedings, liability for contempt will start when an arrest or charge is made and will continue until the verdict is delivered or the proceeding otherwise ends. It will restart if a retrial is ordered. For civil proceedings, the sub judice period will begin when the initiating process is filed and end when the final decision is delivered or the case concludes.
An absolute ban on publishing information ruled inadmissible or heard in the jury’s absence will remain.
New defence: reasonable care
To protect publishers who were not aware that the material would prejudice proceedings, the VLRC has recommended introducing a defence of reasonable care.
It will excuse a person who intentionally publishes material, but:
- did not know, or could not reasonably have known, of a fact that caused the publication to be in contempt, or
- reasonably relied on another person to take such reasonable care before publishing the material.
The accused bears the burden of proving the defence. It is framed broadly, and 'reasonable care' is not defined.
Clarifying the public interest principle
The common law public interest principle has rarely succeeded. The VLRC believes it should be retained but clarified.
Under the new legislation, a person will not be liable if the prejudice caused to proceedings is outweighed by the public interest in publication, freedom of expression and open justice. In balancing these priorities, the VLRC believes the court should be required to consider the extent to which the publication:
- refers to specific court proceedings;
- refers to the guilt or innocence of the accused;
- refers to the offending material, in the context of the publication as a whole;
- raises an issue of significant public concern;
- is relevant to public discussion at the time it is published;
- contributes to public debate including through the extent of any research or investigation and the tone of the publication; and
- contributes to the effective and fair working of the criminal justice process.
Retained: the fair and accurate report exemption
The VLRC is in favour of restating the existing 'fair and accurate' report exception in the Act. However, the position has been clarified for sequential social media posts. It will not be contempt to 'publish in good faith a fair and accurate report of a court proceeding, including where a report is published in sections or as a series' (ie: a thread of tweets).
Possible implications of reforming sub judice contempt
We have several concerns with the recommendations relating specifically sub judice contempt. We believe that the recommendations propose to restrict free speech more than is required to ensure a fair trial, discouraging publication of content which is in the public interest, where there is even a slight risk that those matters will be subsequently litigated. It is certainly undesirable that journalists often reconsider publishing stories of public interest, simply because of a fear that they may be subsequently prosecuted. This issue will only be exacerbated by the codification of sub judice contempt.
The proposed statute does not give enough recognition to the robustness of juries, and the efficacy of jury directions to cure prejudice in nearly all cases. It is incorrect that if jurors are exposed to publicity about a trial that does not form part of the evidence before them, they will be prevented from reaching a proper verdict, as their views will be prejudiced. It is similarly incorrect that jury directions will not be able to neutralise any prejudice caused. We place a huge amount of trust in juries as part of our justice system, and this trust should be reflected in our contempt laws. Instead, we should introduce measures such as pre-trial screening of jurors, as well as increased jury directions, to combat any potential prejudice.
Although the 'substantial risk' standard is an improvement on the 'tendency' test, we believe that the provisions are nonetheless insufficient. Because the test does not specify what level of interference is necessary, there is a danger the courts may treat it as a low threshold. A better approach would be to require a 'substantial risk of serious interference' with particular proceedings. We also believe that articles archived on a media outlet's website should be expressly excluded from posing a substantial risk of prejudice to the administration of justice, given that the likelihood of a potential juror making a search on the internet and locating that material would be extremely low.
While the defence of reasonable care is a welcome reform designed to protect editors from liability for the content of a specific article, the VLRC could have recommended the introduction of a fault element. Only those who intend to prejudice particular proceedings should be prosecuted. This is particularly concerning when viewed in light of archived publications, which require an excessive amount of proactive monitoring by media organisations. This fault element should be expressed as an intention to prejudice proceedings, rather than an intent to publish. A fault element would also provide a greater incentive for the media to attempt to exercise reasonable care in publishing material relevant to Court proceedings.
Furthermore, reframing the public interest principle will drastically change the current willingness of the courts to disregard the importance of open justice.
Introducing a statutory take-down order regime
Currently, the Supreme Court and County Court can require articles to be taken down under their inherent power to control court proceedings and via suppression orders under the Open Courts Act.
The VLRC has proposed amending the Open Courts Act to establish a statutory take-down order scheme. The scheme will empower Courts to order publishers, online intermediaries and the owners of public websites to remove information if:
- grounds for a suppression order exist (ss 18 and 26 Open Courts Act); or
- the information breaches the Open Courts Act, Judicial Proceedings Reports Act or the proposed Contempt of Court Act; and
- the order can be reasonably complied with.
The courts may make an order in response to an application by a party or of their own initiative. A person who fails to comply within a reasonable time will be guilty of an offence. The VLRC has recommended a maximum punishment of two years' imprisonment and/or 240 penalty units for an individual, and 1200 penalty units for a corporation.
The proposed amendments will also permit the courts to make interim take-down orders without notice where an application for a permanent order is afoot.
Possible implications of introducing a statutory take-down order regime
The retention of the current take-down order scheme seriously risks limiting the freedom of the press. Similarly, the amendment of the Open Courts Act to include a statutory take-down order regime is not ideal. Put simply, take-down orders have a negative effect on free speech.
Take-down orders are problematic because they:
- are not needed to prevent prejudice to the proper administration of justice, because juries are more robust than we currently recognise;
- impose significant and wide-ranging practical ramifications for media organisations;
- are ineffective in light of the globalised nature of online media;
- ignore the value in allowing members of the public to access historical recordings of events, often for research purposes;
- impinge on freedom of the press, given that media organisations may be discouraged from publishing material which they fear may be the subject of a take-down order; and
- are incompatible with the right to freedom of expression (enshrined in section 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006).
Often, potential prejudice to a trial can be remedied by jury directions and/or juror education. Therefore, in reality, take down orders are rarely actually needed to serve the purpose of preventing prejudice to the administration of justice.
The recommendation to introduce a new statutory scheme is concerning for the media. Such a regime may implicitly encourage judges to issue more take-down order applications.
The manner in which the scheme is framed is also concerning. The bar for ordering a take-down order is extremely low. There is a risk the courts will issue orders in situations where they are not absolutely necessary. In our view, there must be a real or substantial risk of prejudice to the administration of justice before a take-down order is contemplated. Society relies on the media to keep the judicial system accountable and provide accessible reports of proceedings. Take-down orders interfere with this.
It is crucial that archives of these historical snapshots of legal cases are preserved for academics, researchers, lawyers, journalists, historians and members of the wider public to access. A take-down order is essentially an order to remove part of history from the record.
We believe that a Court should not make an order unless it is satisfied based on proper evidence or credible information that a jury direction would not adequately cure the effect of prejudicial material or reduce the risk from being real and substantive. Take down orders should only ever be made insofar as they are necessary to protect against a real and substantial risk of prejudice.
The proposal to allow the courts to make interim take-down orders without notice is also troubling. So too is the vague requirement that publications must be removed within a 'reasonable time', especially given the significant penalties for failing to comply.
Reforming enforcement in the online age
The law of contempt has failed to keep up with advances in online publishing. To fix this, the VLRC has recommended that online publishers should not be liable for contempt if:
- the material did not breach the law at the time it was first published; and
- the publisher has not taken any steps to republish the material.
Material will be 'published' online only if it has been downloaded or accessed by a third party. The courts will be required to consider the following factors when considering issues of publication:
- whether there is an established relationship between the parties;
- the size of the audience; and
- the ease with which a person known to the publisher can access the information.
The VLRC adopted our recommendation that online intermediaries and owners of public websites should be excluded from liability for third-party content. It is likely this defence will apply to content posted on the social networking pages of media outlets. However, the protection will cease to apply if the organisation becomes aware of the court order and has had a reasonable time to remove it.
The Commission also recommends that offences in the Open Courts Act, as well as the scandalising and sub judice provisions of the proposed Contempt of Court Act should be expressed to apply extraterritorially, where any of the following apply:
- a significant part of the conduct (e.g. the writing or uploading) occurred in Victoria;
- the publication was made with the intention to cause harm in Victoria, and did in fact cause such harm; or
- the publisher was aware of a significant risk that the material would circulate in Victoria in such a way as to defeat the purpose of the restriction, and did not take reasonably available steps to restrict this circulation.
Possible implications of enforcement in the online age
The VLRC's changes will hopefully clarify the existing confusion surrounding the liability of online intermediaries in Australia. During the consultation process, we argued that material should only be considered to be 'published' if it is actually accessed or downloaded. It would obviously be problematic if online publishers were to be liable for archived material which is published before legal proceedings have commenced, which is never actually accessed. This would place an unreasonable burden on publishers to constantly monitor the contents of archived materials. We are pleased to see that the Commission has adopted our submission to amend the definition of 'publish' in the Open Courts Act.
While it may seem positive that online intermediaries are not liable for third-party content unless they are on notice of the court order, the rule may have an unjust effect in practice. For instance, the VLRC suggests the courts should notify intermediaries (such as Google) of all suppression orders. However, online intermediaries like Google host a large amount of content and receive huge volumes of correspondence. It is unrealistic to expect them to constantly monitor their inbox for suppression order and contempt issues.
The proposed reform for the extraterritorial application of offences is problematic. Despite the apparent restriction on circumstances in which this will apply, this approach will nonetheless restrict freedom of the press and freedom of communication and expression through silencing media located outside of the Victorian Courts' jurisdiction. This also has the potential to prevent people around the world from learning of significant developments in the public interest, which occur in other countries. If the material is not in fact circulated in Victoria, it is unclear why it would be relevant that the publication was written in Victoria. We don't believe that the DPP should be empowered to prosecute international media organisations. As we have alluded to above, the reasoning underlying this reform incorrectly assumes that juries make decisions based on extraneous evidence and discussion, as opposed to evidence before them in Court.
Under the common law, the courts have complete discretion as to who pays for costs in contempt-related proceedings. However, the usual approach is:
- where the defendant is found guilty, they must pay the prosecution's costs (generally on an indemnity basis);
- where the defendant is found innocent, the prosecution may pay the defendant's costs (generally the courts are hesitant to award indemnity costs).
During the VLRC's consultation process, the DPP argued the prosecution should never be ordered to pay indemnity costs. While the VLRC was sympathetic to the DPP's argument, the Commission recommended the courts should retain complete discretion as to costs.
We are pleased to see the DPP's suggestion was rejected. Media companies should be allowed to seek indemnity costs from the DPP, given the substantial resources required to defend these types of claims.
That said, preserving the common law approach has its limitations. The hesitancy of the courts to award indemnity costs against the prosecution has resulted in an unequal playing field. We would like to see the courts award costs against the prosecution and defendant on a more consistent basis.
Navigating new issues in the media landscape
The Victorian Government is currently considering the VLRC's report to determine which components it will incorporate. While many will have a positive impact Victoria's media landscape, others may have unintended consequences that could impact freedom of speech.
If implemented, these reforms may prove difficult to navigate for media organisations. MinterEllison can advise on the impact of any future reforms on your organisation and how you may seek to manage the attendant risks.