2.1 This chapter considers the fundamental question of whether liability for sub judice contempt should be retained at all, and, if so, what should be the underlying policy considerations that guide its operation.

2.2 The aim of the sub judice rule is to prevent publication of material that may cause prejudice to a particular case. A number of assumptions have been made in formulating the sub judice doctrine. Primarily, sub judice contempt assumes that if jurors and witnesses are exposed to media material about a trial that is not part of the evidence presented, tested and argued in court, they will be hindered from reaching an impartial and proper verdict. This premise itself assumes that prejudice induced by media reporting will not be neutralised by the evidence in court, and by judicial warnings and directions. This chapter seeks to evaluate the soundness of these assumptions, and whether the existence and operation of the rule is so integral to the proper administration of justice as to justify the resulting curtailment of freedom of speech.

2.3 The chapter examines:

• the competing public interests of ensuring the proper administration of justice and providing for freedom of speech, and in particular, freedom of the media to report, and comment on, the news;
• empirical studies of the effects of media trial reporting on public perceptions of the guilt or innocence of an accused;
• the effectiveness of devices designed to counteract potential prejudicial pre-trial publicity;
• approaches taken in other jurisdictions; and
• the implications for these issues of the increasing use of electronic communication.

2.4 There is no doubt that freedom of expression is one of the hallmarks of a democratic society, and has been recognised as such for centuries.¹ Justice Mahoney, in Ballina Shire Council v Ringland,² spoke of the ends which are achieved by the capacity to speak without fear of reprisal and the importance of these ends in a free society: “ideas might be developed freely, culture may be refined, and the arrogance or abuse of power may be controlled”.

2.5 However, freedom of speech cannot be absolute. In legal, political and philosophical contexts, it is always regarded as liable to be overridden by important countervailing interests, including state security, public order, the safety of individual citizens and protection of reputation.

2.6 One such countervailing interest is due process of law. Freedom of speech ought not to take precedence over the proper administration of justice, particularly in criminal trials where an individual’s liberty and/or reputation are at stake, and where the public have an interest in securing the conviction of persons guilty of serious crime. Indeed, the belief that the public interest in a fair trial will almost always outweigh the public interest in freedom of expression, generally goes unchallenged. Therefore, a discussion of how to reconcile these competing public interests proceeds on the basis of the acceptance of that notion. The question to resolve, then, is whether justice can be done, as well as be seen to be done, in the absence of sub judice liability. If the answer to this is no, that is, that the sub judice rule is essential to achieving the proper balance between the competing interests, the question must then be asked whether the operation of the sub judice rule restricts freedom of speech more than is necessary to ensure a fair trial.

Legal protection of freedom of expression

2.7 In 1992, the High Court held that the Commonwealth Constitution contained an implied guarantee of freedom of “political discussion” in Australia, and that Commonwealth legislative powers, at least, were limited by this implied freedom of communication.³ In Theophanous v Herald Weekly Times Ltd,⁴ the defendant relied on an implied constitutional freedom to publish material discussing government and political matters to defend an action for defamation. The defence was upheld. Chief Justice Mason and Justices Toohey and Gaudron defined “political discussion” as being “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”. The decision has been described as being “as close as the court has come to finding a ‘personal right’ to free speech, as opposed to a restriction on legislative power”.⁵ However, despite the wide definition of “political discussion”, there was nothing in the judgment to suggest that the constitutionally implied freedom was a freedom of speech generally, such as is expressly provided for in the American Constitution. The freedom of speech which was guaranteed was that which was necessary to provide the democratic underpinnings for representative and responsible government.

2.8 In 1997, in Lange v Australian Broadcasting Corp,⁶ the High Court considered the correctness of Theophanous. The court noted that the reasoning which gave rise to the rulings in Theophanous had the direct support of only three of the seven judges, and that, therefore, the decision does not have the same authority which it would have if the majority had concurred on the reasoning as well as the rulings.⁷

2.9 The court restated the implied constitutional freedom of political communication in a narrower form than the majority had suggested in Theophanous. It held that it was necessary, in order “to effectively serve the purpose of s 7 and 24 and related sections” of the Constitution which guarantee representative and responsible government, to imply freedom of political discussion: “freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates”. However, those sections, which necessarily protect freedom of communication on political and government matters, “do not confer personal rights on individuals. Rather, they preclude the curtailment of the protected freedom by the exercise of legislative or executive power”:

Unlike the First Amendment to the American Constitution which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution.⁸

[T]he freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided by the Constitution.⁹

2.12 Prior to Lange, it had indeed been held that laws restricting media publicity relating to criminal trials should be subject to scrutiny in the light of the implied constitutional freedom of political discussion. But the argument that the constitutional freedom had “abolished the long-standing protection of fair trial from unlawful or unwarranted media or other intrusion” had been firmly rejected.¹⁰ The case was Attorney General v Time Inc Magazine Co Pty Ltd.¹¹ The New South Wales Court of Appeal observed that the common law principles have been established as a result of a balancing of competing interests: the public interest in freedom of expression and the public interest in the administration of justice. The court also stated that freedom of expression is not unconditional. “Expression can, for legally relevant purposes, be free even though it is subject to other legitimate interests.”¹²

2.13 In international law, the right to freedom of expression is enshrined in the International Covenant on Civil and Political Rights (“ICCPR”) to which Australia is a signatory:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.¹³

2.15 In this chapter it is argued that, although freedom of speech is restricted by the sub judice doctrine, this is necessary to ensure the proper administration of justice, and the right of an accused to a fair trial, and that, on the basis that the Commission’s proposals for reform are adopted, the restrictions would operate only to the extent required to achieve that result.

Open justice

2.16 Closely linked with the right to freedom of speech is the public right to scrutinise and criticise courts and court proceedings. The principle of open justice is just as fundamental to a democratic society as freedom of speech¹⁵ and is an accepted doctrine within the Australian justice system. Application of the principle of open justice assists in preventing judicial arbitrariness or idiosyncrasy and maintaining public confidence in the administration of justice.¹⁶

2.17 However, while the prima facie principle that court proceedings should be open and reportable helps to ensure the fair and efficient administration of justice in general terms, it can sometimes create a risk of prejudice to the fairness of individual proceedings. For example, high-profile and detailed reporting of evidence presented at committal proceedings about an alleged offence might exert influence on the jury in the forthcoming trial. In such circumstances, the conflict between the open justice principle and the sub judice principle is generally resolved in favour of open justice – notably because fair and accurate reporting of open court proceedings is a defence to sub judice liability. Nonetheless, the power given to judges and magistrates to prohibit or postpone reporting of an individual case, through making suppression orders, although restricting open justice, protects against the serious risk of prejudice. In this way, the law relating to suppression orders has close links with the sub judice principle, and receives detailed consideration in this Discussion Paper.

2.18 In the USA, it has been argued that the media perform, on the community’s behalf, a “watchdog” role in relation to the criminal justice system by discussing the broad issues of public concern which may arise in a criminal case. The argument continues that if the sub judice doctrine inhibits this role “the operation of the criminal justice system may become seriously inefficient, corrupt or otherwise unsatisfactory and debates on public interest questions may be seriously impaired”.¹⁷ The clear answer to this argument is that the media can effectively perform this “watchdog” role, promoting discussion of courts and the justice system, “without publishing the most obviously prejudicial material specifically relevant to a case”.¹⁸

2.19 Furthermore, if the sub judice doctrine prevents reporting and discussion of court proceedings then, clearly, the principle of open justice is compromised. However, proof that a publication is a fair and accurate report of what has actually taken place in open court constitutes a defence to a charge of sub judice contempt. In addition, where the media has included prejudicial material in reports of legal proceedings held in public, the prosecution in contempt proceedings must show that the prejudice arising is not outweighed by any competing public interest consideration. These grounds of exoneration allow the sub judice rule to operate without impinging unduly on the principle of open justice.

Rules of evidence

2.20 The presumption of innocence of an accused, until proven guilty beyond reasonable doubt, is a basic tenet of criminal procedure. Rules governing what evidence can be admitted in court, and discretions vested in judicial officers to exclude evidence whose prejudicial effect substantially outweighs its probative value, ensure that this tenet is upheld. Further, in the most serious criminal cases in New South Wales, trial by jury is a fundamental right of a defendant;¹⁹ the belief is that justice can best be obtained by use of ordinary citizens, drawn from all sectors of society reflecting the community’s attitudes, to decide questions of fact. Rules of evidence ensure that the material on which the jury bases its findings of fact is not hearsay, is relevant to the charge being heard and can be reliably tested in court, in the presence of the jury.

2.21 Rules of evidence exclude opinion evidence, allegations as to the general character or credibility of an accused, evidence of confessions which have not been established to be clearly voluntary and evidence as to the prior conduct of the accused, including any prior convictions.

2.22 One of the most significant effects of the sub judice rule is to prevent the back-door entry, as it were, of inadmissible evidence into the trial. If jurors and witnesses are exposed to material through the media which they would have been prevented by the rules of evidence from being exposed to in court, the fairness of the trial is compromised.

Justice must be seen to be done

2.23 Due process of the law encompasses not only the right to a fair trial, but also the preservation of public confidence in the administration of justice. For that reason, the justice system must strive not only to achieve a fair result but must ensure that it is apparent to onlookers that a fair result has been achieved: “justice should not only be done, it should manifestly and undoubtedly be seen to be done”.²⁰ In this way, public confidence in the administration of justice is maintained.

2.24 It can accordingly be argued that the sub judice doctrine protects against the appearance of decisions having been influenced by published material. If the media publish prejudicial material, they can appear to urge, or may in fact be urging, a particular finding: the media can “wage a campaign” against one of the parties to proceedings. If the jury decides in accordance with an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jury’s decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jury’s decision was not impartial and based on the evidence presented in court, even if it was.

2.25 Similarly, if material is published which may influence, or does influence, a witness, the decision reached in proceedings will not appear to have been arrived at free of that influence.

2.26 The broad question whether the sub judice doctrine should prohibit publications which only appear to create a risk of unfairness, in addition to those which actually do create such a risk, is a controversial one, to which the Commission will be paying close attention in this Reference.

Time limits

2.27 Publication will only constitute a contempt under the sub judice rule if it relates to proceedings which are current or pending. For example, material concerning a particular crime, which is published before anyone has been arrested or charged with the crime, will not constitute a contempt, even if it later turns out to be prejudicial to the trial of the accused.

2.28 The sub judice rule does not, therefore, amount to suppression of discussion and dissemination of news but mere postponement until the judicial process has run its course. Operation of the rule must be seen in this perspective. Freedom of “newsworthy” reporting must not be confused with freedom to discuss, reveal and inform, all of which can take place when the danger of prejudicing a fair trial has passed.

Influence of media

2.29 In Ballina Shire Council v Ringland, Justice Mahoney examined the nature of the power which accompanies the media’s employment of free speech:

The media exercises power, because and to the extent that, by what it publishes, it can cause or influence public power to be exercised in a particular way. And … it needs no authority to say what it wishes to say or to influence the exercise of public power by those who exercise it. The media may, by the exercise of this power, influence what is done by others for a purpose which is good or bad. It may do so to achieve a public good or its private interest. It is, in this sense, the last significant area of arbitrary public power.²¹

2.31 The Australian Law Reform Commission also explored these arguments in its reference on contempt:²³ it noted that it is sometimes submitted “that there is no real conflict between freedom of publication and a fair trial, because no person involved in a trial … is ever actually influenced by publications relating to the trial.”²⁴

2.32 The reality is that many, if not most, jurors come to a trial with prejudices and preconceptions, both generic and specific to the trial, regardless of their exposure to media reporting. Unquestionably, one of the hallmarks of a fair trial is that a verdict will be reached by an “impartial jury”. However, this does not mean that jurors must take their places in court as tabula rasa. This would be “an impossible ideal”.²⁵ In fact, it has been argued that:

To think that jurors wholly unacquainted with the facts of a notorious case can be impanelled today is to dream … The search for such a jury is a chimera. It is also unnecessary. Knowledgeable jurors today … can form an impartial jury. In fact, the very diversity of views and experiences that they possess is the best guarantee of an impartial jury.²⁶

Jurors must bring with them the knowledge, experience and values which they have acquired throughout their lives. In cases where the alleged offence stirs up particularly deep feelings – examples are rape and murder – the juror cannot be expected to erase these feelings completely, nor to identify with precision the extent to which they have been shaped by media treatment of the subject. Similarly conscious or unconscious likes or dislikes cannot be wholly suppressed. These may relate to essentially irrelevant factors such as the appearance, race, religion, sex or cultural attributes of any of the people involved in the trial.²⁷

2.35 However, what the sub judice rule seeks to do is to filter out the most damaging of prejudicial effects so that views formed prior to the trial, or from extrinsic sources during the trial, are not held so strongly that they cannot be displaced by the evidence which is presented and tested in the courtroom, as well as by judicial directions and instructions on the law, and arguments and submissions by counsel on that evidence. It seeks to suppress only that material which, in accordance with the present common law test, has a real and definite tendency, as a matter of practical reality, to prejudice legal proceedings, or, on a reformulated test, creates a substantial risk that the fairness of the proceedings would be prejudiced. Furthermore, as pointed out above, suppression is for a limited time only and liability for contempt is only sheeted home where any of the grounds of exoneration (discussed below) are not available.

Defences

Fault

2.36 Chapter 5 examines the role of fault in liability for sub judice contempt, and weighs the arguments for and against absolute liability. Proposals 7 and 8 encapsulate the Commission’s present view that the imposition of absolute liability fetters freedom of speech to an unacceptable degree and may indeed be counter-productive, through not making sufficient allowance for reasonable efforts made by media publishers to avoid prejudicing trials, or for situations where there is an absence of editorial control. In Proposal 7, it is proposed that a defence to a charge of sub judice contempt should be available on the basis that the person or organisation charged did not know a fact which was the cause of the publication being in breach of the sub judice rule, and took all reasonable steps to ascertain any such facts. In Proposal 8, it is proposed that a defence to a charge of sub judice contempt should be available on the basis that the person or organisation charged had no control over the content of the prejudicial publication, and that they either did not know the material was prejudicial, or, on becoming aware of this, took all reasonable steps to prevent its publication.

2.37 If publishers know that they will not be held liable for any prejudice to legal proceedings which may result from their publications if they have taken all reasonable care to avoid such a result, they will publish with greater confidence and less interference with their dissemination of news, opinion and discussion. Hence, in limiting liability in this way, a proper balance between freedom of speech and the fair administration of justice can be achieved.

Public interest

2.38 The common law presently allows a person or organisation to avoid liability for contempt, in certain circumstances, where the publication relates to a matter of public interest. In this situation, the potential threat to a fair trial is deemed to be outweighed by the public interest in the discussion of a matter of public importance.²⁹

2.39 Although the Commission proposes that the common law formulation of the defence be restricted somewhat, our tentative view is that a “public interest” defence should continue to be available.³⁰ This ground of exoneration expands the scope of freedom of speech, making it more palatable to retain the sub judice rule.

Public safety

2.40 Publications which are reasonably necessary or desirable to facilitate the arrest of a person, or aid in the investigation of an offence or to protect public safety, may be immune from application of the sub judice rule, even if they would otherwise be found to be in contempt, under a broad application of the public interest principle. The prosecuting authority may also exercise a discretion not to prosecute. The Commission has formed the preliminary view that legislation should specifically protect these kinds of publications.³¹ A defence to a charge of contempt on the basis of “public safety” places a further check on the curtailment of freedom of speech which is otherwise a consequence of the operation of the sub judice rule. As with the availability of other defences, this lends weight to a position advocating retention of the rule.

Fair and accurate reporting

2.41 At common law, subject to several discrete exceptions, a publication will not constitute a contempt, even if it may be prejudicial to a case, if it is a fair and accurate report of proceedings which take place in open court. This ground of exoneration from liability acknowledges the importance of open justice and allows the sub judice rule to operate without encroaching upon the public interest in being informed about processes of the court, and those processes being open to scrutiny.³²

Circumstances where liability cannot be avoided

2.42 The above paragraphs look at the availability of a number of defences to a charge of sub judice contempt which have the effect of expanding the media’s freedom of expression. However, in some circumstances, liability for publication cannot be avoided even where it may, outwardly, seem unfair for a charge of contempt to stand. This, it has been argued, has a “chilling effect” on media coverage.³³ In particular, liability cannot be avoided on the basis that an alternative remedial measure incurring significant disadvantage and cost, such as postponing the start of the trial or changing the venue, would have been enough to negate prejudicial influence.³⁴ Further, the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt. However, rather than throw sub judice liability out altogether, the solution may be to redefine the test for liability and/or to make liability dependent on further factors. The Commission has proposed in Chapter 4 that the present common law test for liability, under which a publication is in contempt if it has a real and definite tendency, as a matter of practical reality, to prejudice or embarrass proceedings, be clarified and narrowed to depend on a substantial risk of prejudice. As well, as outlined in paragraph 2.36 above, the Commission proposes that where it can be shown that no one was at fault, there should be no liability for sub judice contempt.

Commercial nature of media publishing

2.43 In advocating freedom of the press, publishers may confuse the role they fill in satisfying the public’s desire to be informed of events happening in the world with acting under a duty or privilege to so inform. In Attorney General v Time Inc Magazine Co Pty Ltd, Chief Justice Gleeson referred to an observation made by Chief Justice Martin that the publication of a newspaper is a commercial activity: no question of duty or privilege is involved.³⁵ While his Honour acknowledged that it is perfectly legitimate to seek profit from providing information and entertainment to the public, his Honour held that there is no right, under the Constitution or at common law, to do so at the expense of the due administration of justice.

2.44 In Attorney General for New South Wales v TCN Channel Nine Pty Ltd the observation was similarly made that the publication of highly newsworthy material concerning alleged offences, or the trial of those offences, “may have a capacity to advance the commercial or other interests of various persons and corporations”. However, the court held that in the context of the administration of criminal justice, so long as proceedings are pending, “these interests, which may in themselves be perfectly legitimate, must yield to the higher interest of the due administration of justice”.³⁶

Specific examples of media publicity

2.45 There are particular risks of prejudice to a fair trial associated with the publication of certain kinds of material relating to accused persons and to criminal proceedings, against which the sub judice rule provides protection. High-risk publications include:

• a photograph of the accused where identity is likely to be an issue, as it will often be in criminal cases;³⁷
• suggestions that the accused has previous criminal convictions, has been previously charged for committing an offence and/or previously acquitted, or has been involved in other criminal activity;³⁸
• suggestions that the accused has confessed to committing the crime in question;³⁹
• suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused;⁴⁰ and
• comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favourable or unfavourable references to the character or credibility of the accused or a witness.⁴¹

2.46 Pre-trial publication of material identifying an accused person, especially photographs of the accused, is generally acknowledged to have a particular propensity to give rise to difficulties in ensuring a fair trial, and even to miscarriages of justice.⁴² Identification evidence can be unreliable because it is so easy to make an out-and-out mistake about identity but, more importantly in the context of media publicity, because of what has been described as a “displacement effect” or “suggestibility”.⁴³ People can honestly believe they recognise somebody because of ideas that have been suggested to them, including a previously published photograph of “a person suspected/charged with the crime”, “and human nature is such that it is difficult, and sometimes impossible, for people to distinguish what they know, and what they believe, or between the various sources from which their beliefs have come to be made up”.⁴⁴ It was held in Attorney General v Time Inc Magazine Co Pty Ltd that, in a case of murder, where identity was likely to be a central issue, the pre-trial publication of a photograph of an accused would ordinarily carry a real risk of contaminating identification evidence at the trial. Publication of identifying material of an accused not only jeopardises his or her right to a fair trial, but gives the defence the opportunity to attack the prosecution case on the basis of unreliable identification evidence. Either way, there may be a serious interference with the proper administration of justice.⁴⁵

Prior criminal convictions

2.47 Whether or not the accused has a prior criminal record is not relevant to the charge presently being tried and prima facie is not admissible evidence. If jurors become aware of prior convictions through media publicity, there is a real risk of prejudice to their impartiality and to the right of the accused to be presumed innocent of the particular crime being tried, until proven guilty. It is knowledge which is very difficult to put out of mind, and its prejudicial effects are difficult to displace by warnings as to the irrelevancy and inadmissibility of the information. If the disclosure occurs during the trial, the judge may consider that the jury must be discharged on account of the potential for unfairness to the accused.

Confessions of guilt

2.48 Similarly, confessions of guilt which are alleged by the media to have been made by the accused are particularly prejudicial and difficult to dismiss from the mind. If an allegation is made by the prosecution in court that the accused has confessed, then this evidence can be tested to determine whether it was truly voluntary and obtained in circumstances which makes the evidence admissible. Otherwise, the evidence is inadmissible. As has been rightly pointed out:

[t]here is no point in maintaining that, prima facie at least, evidence of prior convictions or of an alleged confession which has not been proved to have been made voluntarily should be inadmissible if we don’t have a sub judice principle prohibiting (prima facie) publications containing these categories of statements.⁴⁶

Influence on witnesses

2.50 Chapter 4 at paragraphs 4.33-4.48 examines in detail whether liability for sub judice contempt should continue to apply to publications which may influence witnesses. Publications have been found to constitute contempt on the basis that they may influence a witness, for example, where the witness or one of the parties to the proceedings has been personally criticised or they contained an interview with the witness, as a result of which he or she would be constrained from changing his or her account of the relevant events.

2.51 The Commission’s tentative view is that there is sufficient ground to fear that the fairness of legal proceedings may be compromised by publications that influence a witness in any of the above circumstances. In Chapter 4, the Commission proposes reformulating the test of liability so that it is founded on substantial risk of prejudice, rather than tendency to prejudice. This would raise the threshold of liability, thereby widening the scope of material which can be published without being in contempt. It can be argued that this tipping of the scales in favour of freedom of speech allows for the counterbalance provided by applying the rule to circumstances in which there is some danger of prejudice. On this basis, retention of the sub judice rule to apply to influence on witnesses can be justified.

Influence on judicial officers

2.52 Chapter 4, at paragraphs 4.49-4.57, also considers the influence publications may have on judicial officers. The prevailing view at common law is that, based on the assumption that judicial officers are not susceptible to any significant degree to influence by media publicity, any such influence does not have the requisite tendency to prejudice proceedings, so as to constitute contempt. The Commission proposes that no change be made to the common law.

2.53 Not imposing liability for sub judice contempt on the basis of risk of influence on a judicial officer expands freedom of the press and gives full effect to the principle of open justice. This in turn vindicates retention of the sub judice rule.

2.54 However, Chapter 4 distinguishes the situation where liability for sub judice contempt may be imposed because a publication “embarrasses” a judicial officer.⁴⁷ That chapter observes that cases which have suggested that liability may arise because of “embarrassment” have not been concerned with the risk of influence but with protecting the integrity of the justice system from the perception of improper pressure. Although we concede that the common law is somewhat ambiguous in this area, at this stage we make no proposals for change.

EMPIRICAL RESEARCH REGARDING JURIES

2.55 The sub judice rule assumes that jurors will have come in contact with media publicity surrounding a case, that they will retain the information and that they will be influenced by what they read and hear in the media. There have been numerous studies conducted, mostly in the United States, which have endeavoured to test these hypotheses. In this Discussion Paper, we have not undertaken an exhaustive review of all relevant research. It is possible to rely on a sample of studies in order to draw some trends from empirical research in this area.

2.56 The Australian Law Reform Commission looked at some of the studies in its reference on contempt⁴⁸ and noted that there is evidence that people rely heavily on the media, with television being the most influential, for their knowledge and understanding of events in the world, and for impressions and perceptions that form the basis for their own value-judgments.⁴⁹ On the other hand, research involving telephone interviews of people who have just watched a television news program concluded that their recall of the contents is poor.⁵⁰ Later studies have similarly demonstrated diverse results: some studies have found that “the media, especially television broadcasts, exert a strong and continuing influence on what people think and feel”; while others have found that “the degree to which the specific contents of media publications are recollected is generally very low”.⁵¹ The Australian Law Reform Commission refers to the theory, backed up by findings of a pattern of remembering described as a “memory curve”,⁵² that “what is chiefly retained in the human mind out of the large quantities of information received from the media is general impressions and value-judgments, rather than precise and detailed statements of fact”.⁵³ If this is so, media influence arguably has greater potential to prejudice than if the effect were to instil the bare facts of an event in the reader’s or viewer’s mind.

2.57 The Australian Law Reform Commission also cites studies which have attempted to assess “whether it is genuinely possible to put information out of one’s mind through a conscious act of will-power” and notes that the findings are equivocal.⁵⁴ In relation, particularly, to the effectiveness of alternative remedial measures, it is interesting to note that empirical research using mock juries is not conclusive as to whether the effects of prejudicial publicity is negated by evidence presented at the trial itself, together with judicial instructions to ignore material not presented as evidence in the courtroom.⁵⁵

2.58 The Australian Law Reform Commission argues that whatever view the media presents of crime and criminals is likely to be highly influential and that media-created impressions may form the basis for an individual’s understanding of an issue and attitude towards a person featured in the media. Furthermore, an individual is likely to organise later information or impressions so as to conform with an attitude or opinion originally adopted.⁵⁶ If the first exposure to an event, at which time attitudes and opinions are formed, is through media publicity, this has significant implications for the conduct of a fair trial.

2.59 An American survey of a number of studies of juries reveals that there is evidence both for and against the hypothesis that prejudicial pretrial publicity can lead to bias in jurors.⁵⁷ Even within each camp, the results are sometimes equivocal. The findings of these studies are as follows:

• Although jurors were more likely to believe that a defendant was guilty after reading a “sensational” story than a conservative story, there was no difference in how the jurors who had read the “sensational” story and those who had read the conservative story would vote for conviction.⁵⁸
• Sensational press coverage could enhance jurors’ readiness to believe that a defendant was guilty but the trial process could reduce that belief to a minimum.⁵⁹
• Persons not exposed to pre-trial prejudicial news coverage found the defendant guilty more often than those who were exposed to such coverage.⁶⁰
• Pretrial prejudicial news coverage does have a prejudicial effect. (This conclusion was based in part on the premise that the public considers news media reliable.)⁶¹
• There is some evidence that jurors use information from news coverage in deliberations.⁶²
• Some jurors have said that news reports did have an effect on their verdicts.⁶³
• The kinds of facts presented in a news story, and the more widespread and frequent the presentation, will lead to beliefs in guilt.⁶⁴
• Where jurors had been exposed to publicity about a trial, there was a possibility that this would impact on their decisions.⁶⁵

• The impact of adverse, inadmissible pretrial publicity had affected the mock jurors’ subsequent evaluation of evidence presented at the trial. Furthermore, it encouraged guilty verdicts and increased subjects’ ratings of how convincing they found the prosecutor’s case.⁶⁷
• Prejudicial material had a powerful effect on juror’s behaviour, influencing them to reach more guilty verdicts⁶⁸ .

the available social science literature on the effects of actual news coverage on potential jurors or on actual jury verdicts is not very useful. It appears that news coverage in highly publicised cases may influence the public, but it is also possible that those who are pro-prosecution choose to expose themselves to more news and/or remember more of it.⁷⁰

2.63 More recent empirical studies⁷² have found that:

• some jurors are affected by adverse pretrial publicity and that traditional remedies for counteracting that publicity do not work;⁷³
• jury deliberation did not remedy but magnified publicity-induced bias;⁷⁴
• pretrial publicity, particularly negative information about the defendant’s character, can influence subjects’ initial judgements about a defendant’s guilt. This bias is weakened, but not eliminated by the presentation of trial evidence.⁷⁵

2.65 This conclusion by Justice Barr illustrates a general tendency for Australian judges to set little store by empirical studies of the likelihood that potential members of a jury may have been influenced by media publicity about the case.⁷⁸ It may be that a slightly more open judicial attitude to such endeavours would encourage the development of more sophisticated techniques for conducting such studies, to the eventual benefit of courts and media alike.

2.66 Be that as it may, there are, in summary, three main reasons why support for, or rebuttal of, assumptions underlying the rationale for the sub judice doctrine cannot reliably be derived from empirical studies of juries and witnesses. First, these studies fall almost equally into opposite camps in the conclusions they reach. Secondly, their outcomes, within each camp, are often ambiguous. Thirdly, the methodology has a number of limitations:

• it is difficult for those taking part in studies to disassociate the influence of the media from their own preconceived notions;
• many studies are based on mock trials, mock juries or shadow juries, and on secondary material generally;
• those involved in the studies are often university students and may not truly reflect the usual cross-section of society of which juries are constituted. Australian studies are further limited by the restrictions placed on the questioning of juries.

2.68 However, further research in this area may, in time, produce more reliable evaluations of the underlying assumptions. In particular, in formulating its final recommendations, the Commission will take into account the findings of research currently being undertaken into the impact of media publicity on jury deliberations in New South Wales.⁷⁹ Jurors from recently completed criminal trials are being asked about the extent, if any, to which media publicity may have influenced their views, or the views of their fellow jurors, about the trial. Their answers are being compared with the impressions formed on these same matters by the judge presiding at the trial and by counsel on both sides. The judges and barristers interviewed are also being asked for their opinions about the appropriateness and effectiveness of existing sub judice principles and of the procedural measures which a court may use to mitigate the impact of prejudicial publicity.

ALTERNATIVE REMEDIAL MEASURES

2.69 Where it appears that there has been publicity surrounding a case which may be prejudicial to a fair trial, the court may, on the application of one of the parties, or in some instances of its own volition, take steps to redress or minimise the damage. Chapter 4, at paragraphs 4.109-4.113, looks at the relevance of these remedial measures to liability for contempt. In this chapter, the availability and effectiveness of remedial measures is evaluated in order to determine whether they obviate the need for a sub judice rule. Chapter 10 looks at what might be termed preventative remedies: orders to suppress publication of specified prejudicial material.

2.70 Remedial measures which are available in New South Wales include:

• ordering an adjournment, or permanent stay, of proceedings (the latter being exceptional), or a change of venue; questioning jurors as to their contact with publicity, or discharging the jury;
• allowing the prosecutor or defence to challenge for cause (that is, to object to the selection of a person as a juror on the basis that that person is biased or partial); and
• directing the jury, during the course of the trial or in summing up, to disregard publicity about the case.

2.72 Although exceptional, in some cases, the damage from adverse publicity may only be remedied by a conviction being quashed on appeal. This is likely to occur where jurors have been exposed to inadmissible evidence that is highly prejudicial, such as a prior record of convictions. It is also open to the trial judge to put his or her opinion on record, during the trial and in the absence of the jury, that a verdict of guilty should be set aside because of adverse publicity surrounding the trial.

2.73 Unlike the approach taken in New South Wales, the US legal system relies far more heavily on remedial measures than it does on the restrictions on publicity imposed by contempt law, to minimise the possibility of prejudice to proceedings. This approach assumes that remedial measures will be effective in either producing a jury which has the requisite degree of impartiality, or in negating, or counteracting, the effects on juries of exposure to prejudicial material. In Australia, no such general assumption exists: indeed, the continuance of a law of sub judice is sometimes justified on the ground that it is an unsound assumption.⁸²

2.74 As well as making use of the measures listed above, in order to preserve the impartiality of jurors, US courts have recourse to other measures not available in New South Wales. An application can be made for sequestration of juries during the course of a trial so that they are quarantined from media publicity. Potential jurors can be cross-examined to determine their preconceptions and the possibility of partiality in a “voir dire” proceeding. The prosecution and defence can also avoid drawing jurors from a county where prejudicial publicity has been particularly pervasive.

2.75 Except for judicial directions to juries, remedial measures all come at a price, either pecuniary or non-pecuniary and sometimes both. A greater reliance on remedial measures increases the expenses which must be borne by the State and, unless there is a grant of legal aid (which is, of course, a cost borne by the State), by the accused. Where there has to be a new trial because it has been necessary to discharge the jury, or because a verdict is set aside on appeal, these expenses can be enormous. Remedies which delay the finalisation of criminal charges, including protracted striking of a jury and adjournment of proceedings, increase the strain and hardship suffered by the accused, who may be in custody. Remedies may also cause, at best, inconvenience and, more seriously, emotional upset and hardship to parties, witnesses and even jurors. It is easy to envisage these effects when a jury must be sequestered for part or all of the trial. In fact, the particular pressure imposed by jury sequestration “may be so arduous that the jury’s capacity to deliberate with the requisite dispassionate calm is also put at risk”.⁸³

2.76 Likewise, a change of venue to locations away from the seat of the publicity would obviously be upsetting to lesser or greater degrees to all involved in the trial. In any event, the effectiveness of changing the venue has been called into question. It is argued that “publicity is often so widespread that relocating the trial will have little effect, the local community has a legitimate interest in the prosecution of the defendant, and defendants should not be compelled to choose between their rights to an impartial jury and a local jury.”⁸⁴

2.77 Where the possibility of prejudice to a fair trial is so serious as to warrant a permanent stay of proceedings, or where a conviction must be quashed due to prejudicial publicity, the public interest in administration of justice is frustrated: an accused who may have been found guilty of a crime (and, when publicity has been intense, it is most likely to have been a serious crime) goes unpunished; the victim of the crime is left without having his or her suffering and outrage aired and without seeing retribution.

2.78 In the USA, where “prior restraints upon expression are a far more grievous impingement on the First Amendment than are subsequent punishments”⁸⁵ for contempt, despite individual judges’ objections to the prejudicial effects of media coverage,⁸⁶ it was not until 1959 that a conviction was reversed because of prejudicial publicity.⁸⁷ Since then, there have been a number of reversals of convictions as a result of pretrial publicity⁸⁸ and an increasingly categorical and aggressive stance taken by the courts towards prejudicial publicity. In Irvin v Dowd,⁸⁹ a case made into a cause celebre by the media, 268 of 430 prospective jurors said during voir dire examination that they had a fixed belief in the defendant’s guilt, and 370 entertained some opinion of guilt.⁹⁰ In its judgment reversing the conviction, the Supreme Court stated:

With such an opinion [of the defendant’s guilt] permeating [the jurors’] minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man … With his life at stake it is not requiring too much that [the] petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing testimony, to possessing a belief in his guilt.⁹¹

The Court has not yet decided that, while convictions must be reversed and miscarriages of justice result because the minds of jurors or potential jurors were poisoned, the poisoner is constitutionally protected in plying his trade.⁹²

2.81 And in Sheppard v Maxwell, Justice Clark of the Supreme Court emphasised that:

the cure [for prejudicial publicity] lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.⁹⁴

2.83 It is, in the Commission’s view, ironic that Justice Clark continued his comments by suggesting that trial judges should insulate witnesses from press interviews, should control statements made to the news media by counsel, witnesses, the Coroner and police officers, and should proscribe extrajudicial statements by lawyers, parties, witnesses and court officials which divulged prejudicial matters.⁹⁵ It might appear to be contradictory to suppress the free speech of all the participants in the trial, but not the media, as well as being an incomplete and circuitous way of averting prejudicial publicity. The court did note, however, that “unfair and prejudicial news comment on pending trials has become increasingly prevalent” and that courts “must take strong measures to ensure that the balance is never weighed against the accused”.⁹⁶

2.84 Not only do the remedies themselves involve increased costs and pressures, but reliance on remedial measures, rather than liability for contempt, which permits virtually unimpeded publicity (particularly surrounding notorious trials) can in itself place excessive pressure on jurors and witnesses, including the pressure to deliver a verdict which will be approved of by the public. It is also significant to note that, in this context of enormous freedom to give wide-ranging publicity to cases enjoyed by the US media, concerns about the fairness of the trial would seem to be expressed by defence counsel in a higher proportion of trials than in Australia.⁹⁷

Judicial warnings and instructions

2.85 At the conclusion of a trial, it is usual practice for the judge to instruct the jury to reach their verdict solely on the evidence and law that has been presented to them in the course of the trial, and to ignore extraneous considerations. In particular, if there has been media reporting of the trial, the jury will be given a warning in terms that any information or impressions gleaned from the media, which did not specifically correlate with the evidence and argument presented in court, must be ignored.

2.86 However, it is almost impossible to know whether these instructions and warnings have the effect of cleansing the juror’s mind of preconceptions or prejudices. One American study actually concludes that such warnings enhance the likelihood that the verdict will be influenced by the relevant publicity.⁹⁸ It may be possible to put something out of one’s mind at a conscious level, but it is impossible to say whether or not information may yet operate at a subconscious level to influence thinking. It also cannot be assumed, as the Australian Law Reform Commission points out, that members of a jury are wholly obedient and passive on instructions from the bench to ignore media publicity.⁹⁹ According to one newspaper article on jury deliberations, when a jury was told that their case had been discussed in the press and that they should ignore the press reports, their response was to make a special effort to find out what had been said in the press and to discuss its significance among themselves.¹⁰⁰

2.87 As argued above, where the jury has come into contact with evidence as to confessions or prior convictions, warnings from the bench are unlikely to displace the highly prejudicial effects of such material.

APPROACHES IN OTHER JURISDICTIONS

2.88 There have been a number of reviews of the law of contempt in other jurisdictions, including in other Commonwealth jurisdictions and in other states of Australia, which are outlined in Chapter 1, and discussed throughout this Discussion Paper where specific aspects are relevant. Every one of these reviews has advanced the principles of freedom of speech and open justice as being fundamental rights in a democratic society. However, each one upholds the right to a fair trial as being of overriding importance. While acknowledging the difficult balancing exercise between these competing public interests, not one review has concluded that the interest in a fair trial could be properly protected in the absence of the sub judice rule. All reviews have proceeded to recommend that the sub judice doctrine continue to operate, but in varying forms. Some of the recommended reforms have centred on the need to bring the public interest in freedom of speech into better balance with the interest in due process of law by restricting the application of the sub judice rule. Some pertinent comments are extracted from reports of three of those reviews in paragraphs 2.89-2.93 below.

The Australian Law Reform Commission review

2.89 As part of its review of the law of contempt in Australia, the Australian Law Reform Commission looked at whether reform of the law governing contempt by publication was desirable, and, if so, in what respects. The Australian Law Reform Commission concluded that “the right of citizens to a fair trial in criminal proceedings before a jury …would be significantly jeopardised if there were no restrictions whatsoever on freedom of publication relating to the trial.”¹⁰¹ While the Australian Law Reform Commission attached considerable importance to the principle of open justice, which is promoted by reporting of what goes on in Australian courts, it concluded that “the prohibitions currently imposed by contempt law on publications relating to current or forthcoming trials should not …be completely dismantled.” The Australian Law Reform Commission recommended, however, that prohibitions should be “confined to the minimum necessary to eliminate any substantial risk of prejudice.”

Canada

2.90 Canada enshrines the right to free speech in s 2 of The Canadian Charter of Rights and Freedoms¹⁰² which provides that everyone has the fundamental “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In its 1982 report on the law of contempt of court,¹⁰³ the Canadian Law Reform Commission emphasised the weight which Canada gives to this principle when it asserted that the administration of justice and the judicial system should not be set apart, or be excepted from the public exercise of this freedom, including criticism and expression of opinions.¹⁰⁴ However, s 2 of The Canadian Charter of Rights and Freedom must be read with s 1, which guarantees the rights and freedoms set out in the Charter “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It must also stand alongside s 11(d) which provides that any person charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. Accordingly, the Canadian Law Reform Commission observed that the “State has not only a right but also a duty to see that the administration of justice is impartial and fair”.¹⁰⁵ The Canadian Law Reform Commission argued that, in the exercise of this duty, the State could not tolerate an individual attempting to influence unduly the outcome of a trial before a jury. Punishment of undue influence is justified on the basis that “it diverts freedom of expression from its true purpose in order to serve an antisocial purpose”.¹⁰⁶

2.91 The Canadian Law Reform Commission noted that the principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence which might affect its operation, or at least might appear to do so. Hence, the Canadian Law Reform Commission emphasised, as we have done in paragraph 2.23 above, that not only must justice be neutral, “it must seem to be so in everyone’s eyes, so that an atmosphere of genuine confidence can be maintained”.¹⁰⁷ In reconciling what may sometimes be opposing rights guaranteed in the Canadian Charter of Rights and Freedoms, the Canadian Law Reform Commission saw the need for retention of the sub judice rule.

Ireland

2.92 In recommending the retention of sub judice liability, the Irish Law Reform Commission expressed the view that:

it cannot be emphasised too strongly that, particularly in the case of criminal proceedings, the powerful effect of coverage by the press, radio and television may, if not subjected to reasonable safeguards, have potentially serious effects for the proper administration of justice and may result in the imprisonment for lengthy periods of innocent people.

In contrast, the public interest in the free flow of information is by no means wholly interrupted by a careful observance of the sub judice rule, since, at worst, the inhibition of unrestricted comment and publication of allegedly relevant facts is of a temporary nature only.¹⁰⁸

COMMUNICATIONS TECHNOLOGIES

2.94 One of the most notable features of recent years is the growth and use of information technologies. Traditional media for mass communication – newspapers, magazines, radio and free-to-air television – have been joined by satellite and cable television, electronic mail and the Internet. This gives rise to new dilemmas in seeking to control the extent to which pretrial publicity affects the administration of justice. In particular, the influx of information from overseas gives rise to jurisdictional problems, as well as, to some extent, problems in identifying who may be liable for prejudicial material.

2.95 Illustrating the impact which communication technology can have on contempt law, an Australian company has recently established a website called CrimeNet which “is the world’s first site to provide a complete information service on criminal records, stolen property, missing persons, wanted persons, con artists and unsolved crimes”.¹¹¹ For the cost of six dollars, an Internet user can obtain the information contained in the site’s database. The implications for protecting juries from prejudicial material concerning a person on trial for a criminal offence are evident. What is to stop a curious juror from doing some research of his or her own on the Internet? In fact, it was this fear that led Justice Hempel of the Victorian Supreme Court to discharge a jury in the retrial of a defendant whose previous trial was written about on CrimeNet.¹¹² Internet services such as these give rise to questions as to whether the sub judice rule has been infringed, and, if so by whom, questions which are discussed in the following paragraphs.¹¹³ The resolution of these issues may be more clear-cut where the website has been created and publicised in Australia. However, if a similar website is created overseas, which a juror in Australia can easily access, enforcement of sub judice restrictions becomes extremely difficult.

2.96 It is one thing to control local media by the application of local laws. Controlling what publicity about a trial jurors and witnesses may be exposed to via satellite and cable television, electronic mail from overseas and the Internet presents a very different challenge. The potential for comment on court cases, and the speed with which publicity about crimes and civil disputes can be disseminated through these outlets suggests that the old mechanisms of legal pre-censorship and media cultures of restraint have grown increasingly weak.¹¹⁴ One of the major electronic news and information companies, the CNN News Group, is available to over 700 million people worldwide with six cable and satellite television networks, three private networks, two radio networks, seven Web sites and a syndicated news service.¹¹⁵ One World Wide Web search engine estimates that it scrutinises approximately 19 million potential information sources; the total of users who are not also publishers in this way is many times greater.¹¹⁶ The question has reasonably been asked whether these figures do not suggest “that any legal regime, such as the sub judice doctrine, which purports to control the flow of information is bound in due time to look like King Canute?”¹¹⁷

2.97 In relation to the jurisdictional issue, where prejudicial material which infringes the sub judice rule is broadcast or sent electronically from foreign jurisdictions, there may not be a local distributor to hold liable.¹¹⁸ Modern electronic technologies publishing material in New South Wales often do not rely on a local distributor answerable to the laws of this State.¹¹⁹ In a Canadian murder trial, the case was discussed on bulletin board services carried by the Internet. These were traced to the University of Ontario but had there been no locally identifiable source, then the relay of the publication would have been unstoppable.¹²⁰

2.98 Branscomb has suggested that “many providers of computer-mediated facilities do not permit genuine anonymity. They keep records of the real identity of pseudonymous traffic so that abusers can be identified and reprimanded”.¹²¹ She also cautions that there has been a trend in recent years towards the establishment of “anonymous remailers”. Diverting traffic through several of these remailers can make it impossible to sheet home liability.

2.99 In Cubby Inc v CompuServ Inc, a US defamation case, the plaintiff sued CompuServe, an Internet service provider, for posting defamatory material within an electronic segment operated as a daily newspaper by a company who bought the electronic space from CompuServe.¹²² The court found that CompuServe was only a distributor, having no more editorial control over electronic publications than “a public library, book store, or newsstand”, and that it was not required to be aware of everything contained in its electronic memory. In absolving CompuServe from liability, the court compared a computerised database with a traditional news vendor.¹²³

2.100 As well, different arrangements between information providers, including bulletin board operators, and the service provider could produce different results in determining responsibility for comment. Since the decision in Cubby Inc v CompuServ Inc, the Communications Decency Act 1996 (US) has been enacted which provides, in s 230, that “no provider or user of an interactive computer service shall be treated as publisher or speaker of any information provided by another information content provider”.

2.101 Cubby Inc v CompuServ Inc draws attention to the difficulties which may arise in assigning liability for communications taking place in cyberspace.¹²⁴ Among the issues raised is the question whether service providers should ever, and if so, in what circumstances, be held liable for material published electronically which prejudices a fair trial. Should this question be answered differently depending on whether the service provider allows anonymous publication of material? It has even been suggested that “every user [of an online service] is a potential publisher who can ‘publish’ with the click of a mouse”.¹²⁵

2.102 Another case which illustrates the difficulties in categorising an electronic service provider for the purposes of determining liability concerned an information utility which allowed a subscriber’s racist comments to be published within its e-mail service but refused to publish the comments in public spaces.¹²⁶ On some channels, the information provider was acting in the normal manner of a publisher editing content; in others it was delivering e-mail and acting as a carrier legally forbidden to monitor content; in others it was offering a public forum for discussion of public issues; and in others it was acting merely as a distributor.¹²⁷ Branscomb has argued that “it would be unwise to impose a generic legal regime clustering all of these legal metaphors into a single new metaphor purporting to serve as an overall umbrella for the Networld”.¹²⁸

2.103 In Australia, the Broadcasting Services Amendment (On-Line Services) Act 1999 (Cth) has addressed certain aspects of the liability of Internet content hosts and service providers.¹²⁹ The Act regulates “prohibited content” and “potentially prohibited content”, that is, material which has received an RC or X classification from the Classification Board. For present purposes, the Act is interesting because it provides prima facie protection from strict liability (civil or criminal) under State and Territory laws for Internet content hosts and Internet service providers in respect of anything published by them.¹³⁰ However, it is also possible for the Minister to exempt a specified law of a State or Territory, or a specified rule of common law or equity, from the operation of s 91(1).¹³¹ Section 91 is discussed in more detail in Chapter 5 at paragraph 5.57.

2.104 Another reason it may prove difficult to apply traditional regulatory models to Internet communications arises from the “static” nature of traditional media publication as compared with the “dynamic” nature of Internet publication. McKenna argues that the “organic” nature of content, as well as the number of sources and volume of information, make detection of breaches, the gathering of evidence and enforcement of laws impracticable.¹³²

2.105 The Commission has flagged these issues as ones which will become increasingly relevant as the use of information technology increases and the degree to which, and ways in which, it may threaten the conduct of fair trials becomes more apparent. Although the Commission’s present view is that it will generally be more appropriate for the common law to respond to situations as they arise, until it becomes apparent that a legislative response is required, we propose that a defence be available to Internet service providers and Internet content hosts who can establish that they had no control over the content of prejudicial material and that they either did not know the content placed on the Internet contained prejudicial material or, having become aware of this, took all reasonable steps to prevent the material being published.¹³³ The Commission suggests that it is too early to reach a conclusion on whether the difficulties in controlling publicity in the context of these modern technological media might make application of a sub judice rule unworkable and that it should, therefore, be abandoned altogether.

CIVIL PROCEEDINGS

2.106 It has been submitted to the Commission that sub judice liability should not apply at all to civil proceedings.¹³⁴ In Chapter 6, this proposition is examined and the extent to which it is appropriate to restrict publication of material relating to civil proceedings is fully discussed. In particular, given the limited number of civil cases in which a jury may be involved, and the limited role that a jury may play, it is questioned whether there is sufficient justification for retaining the sub judice rule.

2.107 The Commission has tentatively concluded that where a publication has a prejudicial effect on juries and witnesses, the sub judice rule should continue to apply. However, the Commission leans towards the view that no restrictions should apply out of concern to prevent a jury being influenced (a) in cases where the jury is to be empanelled under s 7A of the Defamation Act 1974, or (b) until, in any other category of case, it is known that a jury is in fact to be used.

2.108 In relation to material published which creates a substantial risk that a party or parties in civil proceedings will be subjected to improper pressure, the Commission’s tentative conclusion is that the sub judice rule should continue to apply in these circumstances as well. The Commission has also formed the tentative view that liability for sub judice contempt cannot be founded simply on the basis that a publication prejudges issues at stake in the proceedings. Chapter 6 sets out in detail the Commission’s analysis and reasons for reaching its conclusions.

THE COMMISSION’S VIEW

2.109 In considering whether the sub judice rule should be retained at all, the Commission has proceeded on the basis that due process of the law should take precedence over freedom of speech, but that a proper balance needs to be found between the two competing interests. The media should be free to publish material to the fullest extent possible without jeopardising the fair administration of justice. The Commission has examined whether it is possible to achieve this balance without the continued operation of the sub judice rule.

2.110 The Commission’s tentative conclusion is that it is necessary for the proper administration of justice to retain the sub judice rule, subject to the reforms proposed in this Discussion Paper. At the very least, when we consider particular kinds of material that may be excluded as evidence in court proceedings, and which the sub judice rule is designed to keep from jurors and witnesses, retention of the rule can be justified. This includes alleged confessions, prior convictions and photographs of the accused. Once exposed to publicity of that nature, it is very hard to dismiss from the mind, despite judicial instructions and warnings as to the dangers in being influenced by the material, and as to its admissibility in the proceedings. The Commission’s present view is that, in the absence of sub judice liability, and in spite of the availability of remedial measures, the freedom to publish these kinds of information would have the potential to seriously impede the due administration of justice.

2.111 Even in relation to less seriously prejudicial media publicity, the Commission is not presently satisfied that alternative remedial measures are sufficient alone, without the operation of the sub judice rule, to protect the fairness of court proceedings.

2.112 The Commission is mindful of the importance of open justice. However, our view, at present, is that retention of the sub judice rule is compatible with this significant public interest. To the extent that the media safeguard the principle of open justice, promoting discussion of courts and the justice system, this role can be performed satisfactorily without publishing the most obviously prejudicial material concerning a specific case. At any rate, suppression of discussion is only for the limited time during which proceedings are current or pending. The media also have available to them the defences of “fair and accurate reporting” and “public interest”. In the Commission’s view, these grounds of exoneration allow the sub judice rule to operate without impinging unduly on the principle of open justice.

2.113 Likewise, the availability of other grounds of exoneration allows the sub judice rule to operate without, in the Commission’s view, unacceptably infringing the wider public interest in freedom of expression.

2.114 We have also recognised the importance of the notion that justice must not only be done, but must be seen to be done. In the Commission’s view, the sub judice doctrine upholds this principle by protecting against the appearance of decisions having been influenced by published material.

2.115 In reaching our tentative conclusion that sub judice liability should be retained, we have had regard to the fact that not one of the many recent reviews of the law of contempt has concluded that the public’s interest in a fair trial could be properly protected without it (though various modifications to it have been proposed).

2.116 In the Commission’s view, the reforms proposed throughout this Discussion Paper are essential in ensuring that sub judice liability does not encroach unduly on freedom of speech. In particular, two important reforms would ensure that a better balance is maintained between freedom of speech and the proper administration of justice. First, we are of the view that the operation of the rule should be clarified and restricted by making the test for liability one of “substantial risk” of prejudice rather than “a real and definite tendency, as a matter of practical reality, to prejudice legal proceedings”. Secondly, liability for sub judice contempt should depend on an element of fault. These proposed changes are discussed in detail in Chapters 4 and 5.

PROPOSAL 1

Liability for sub judice contempt should be retained.

1. “Numerous great political and intellectual figures – Burke, Paine, Jefferson and Mill, to name but a few – have been associated with this principle”: Australian Law Reform Commission, Contempt (Report 35, 1987) at para 242. See also Hinch v Attorney General (1987) 164 CLR 15 at 57 (Deane J): “Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society.”

2. (1994) 33 NSWLR 680 at 720.

3. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. A minority view in the High Court held that the implied guarantee did not impact upon the statutes of the States and Territories and the common law. See also Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) (1992) 177 CLR 106.

4. (1994) 182 CLR 104; Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211.

5. D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at 15.

6. (1997) 189 CLR 520.

7. In Theophanous, Justice Deane joined Chief Justice Mason, Justice Toohey and Justice Gaudron in ruling that the defences should be upheld but took a view of the scope of the freedom that was significantly different from that of the other three majority judges.

8. Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 567.

9. Lange v Australian Broadcasting Corp (1997) 189 CLR 520 at 561.

10. John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81 at 111 (Kirby P).

11. Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, unreported).

12. Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, unreported) at 10 (Gleeson CJ).

13. Article 19(2).

14. Article 19(3).

15. See C Walker, “Fundamental Rights, Fair Trials and the New Audio-Visual Sector” (1996) 59 Modern Law Review 517 at 517: “Because courts are a State responsibility, there is a legitimate demand for democratic accountability and discussion.”

16. Attorney General v Leveller Magazine Ltd [1979] AC 440.

17. This argument is set out in M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” (1997) 45 American Journal of Comparative Law 109 at 137.

18. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 137.

19. Although, it should be noted that the defendant has a right to elect to be tried by a judge sitting alone. The exception to this is trials of Commonwealth offences, unless the defendant has been prosecuted on indictment in a superior or intermediate court: see M Chesterman, “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy” (1999) 62 Law and Contemporary Problems 69 at 74.

20. R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259.

21. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 725 (Mahoney J), quoted in D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at 1.

22. See US v Dickinson 465 F2d 496 (1972) at 507 and US v Peters 754 F2d 753 (1983) at 762 discussed in J Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” (1990) 12(4) Communications and the Law 87 at 98.

23. ALRC Report 35 and I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986).

24. ALRC Report 35 at para 246; Research Paper 4 at 14-18, 29.

25. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 112.

26. N N Minow and F H Cate, “Who is an Impartial Juror in an Age of Mass Media?” (1991) 40 American University Law Review 631 at 663.

27. ALRC Report 35 at para 281; Research Paper 4 at 4-6.

28. See ALRC Report 35 at para 281; see also D Howitt, “Pre-trial Publicity: The Case for Reform” (1982) 2 Current Psychological Reviews 311.

29. See Hinch v Attorney General (Vic) (1987) 164 CLR 15. See also Chapter 8 for a full discussion of the “public interest principle” and the relevant case law.

30. See Chapter 8 and Proposal 19.

31. See Chapter 8 at para 8.44-8.50 and Proposal 20.

32. See Chapter 9.

33. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 134.

34. This is discussed in Chapter 4 at para 4.110. It has been said in some recent cases, footnoted in Chapter 4 at footnote 131, that the effectiveness of judicial warnings to the jury (which are neither disadvantageous nor costly) can be given weight in determining the tendency of a publication to prejudice proceedings.

35. Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, unreported); Re The Evening News (1880) 1 LR(NSW) 211 at 240 (Martin CJ), cited with approval by Windeyer J in James v Robinson (1963) 109 CLR 593.

36. Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 at 380.

37. See R v Australian Broadcasting Corp [1983] Tas R 161; Attorney General v Time Inc Magazine Co Pty Ltd; R v Pacini [1956] VLR 544; Attorney General (NSW) v Mirror Newspapers Limited [1962] NSWR 856.

38. See, for example, Attorney General (NSW) v John Fairfax & Sons Ltd (NSW, Court of Appeal, No 371/87, 21 April 1988, unreported); Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563; Hinch v Attorney General (Vic) (1987) 164 CLR 15.

39. Attorney General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v Dean (1990) 20 NSWLR 650; R v Day [1985] VR 261; Attorney General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

40. Director of Public Prosecutions (Cth) v Wran (1987) 7 NSWLR 616; Attorney General (NSW) v Dean (1990) 20 NSWLR 650.

41. See R v Truth Newspaper (Vic, Supreme Court, Phillips J, No 4571/93, 16 December 1993, unreported); R v Saxon, Hadfield and Western Mail Ltd [1984] WAR 283; Registrar of the Court of Appeal v Willesee (1985) 3 NSWLR 650; Attorney General (NSW) v John Fairfax & Sons (1985) 6 NSWLR 695 at 713 (McHugh JA).

42. “There have been numerous cases where people have been wrongly convicted on the basis of inaccurate eyewitness testimony”: The Australian Law Reform Commission, Evidence (Report 26 (Interim), 1985) Vol 1 at para 422.

43. The phenomenon in which a person seen in one situation is confused with and recalled as a person seen in a second situation is well recognised and has been termed “unconscious transference”: ALRC Report 26 (Interim) Vol 1 at para 241, referring to research carried out in E F Loftus, Eyewitness Testimony (Harvard University Press, Cambridge, 1979).

44. Attorney General v Time Inc Magazine Co Pty Ltd (NSW, Court of Appeal, No 40331/94, 15 September 1994, unreported).

45. See Ex Parte Auld; Re Consolidated Press Ltd (1936) 36 SR (NSW) 596, the leading authority in New South Wales on the pre-trial publication of photographs of accused persons.

46. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America”.

47. For example, where a sentence has been imposed on an offender, and the time for appealing against that sentence has not yet expired, publications which criticise the sentence passed may constitute contempt on the basis that they amount to a “press campaign” for the appellate court to increase the sentence. The court may be “embarrassed” in so far as it may be publicly perceived to be influenced by media pressure, whether or not this is in fact the case: See Ex parte Attorney General; Re Truth & Sportsman Ltd [1961] SR (NSW) 484, especially at 495-496. Similarly, a publication may constitute a sub judice contempt for its tendency to “embarrass” a magistrate in summary proceedings, in so far as it makes it difficult for the magistrate to decide the case fairly and free from the appearance of prejudice: See R v Regal Press Pty Ltd [1972] VR 67 at 79-80.

48. ALRC Report 35 and Research Paper 4.

49. ALRC Report 35 at para 284: see R F Carter and B S Greenberg, “Newspapers or Television: Which Do You Believe?” (1965)

42 Journalism Quarterly 29; I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 19-29.

50. ALRC Report 35 at para 284; I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 15: see P Edgar (ed), The News in Focus (McMillan, Melbourne, 1980) at 185ff.

51. See M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 140 and footnotes 146 and 147.

52. People lose track of a considerable amount of the information received by them comparatively quickly, but the speed at which information is forgotten slows subsequently: see, for example, F C Bartlett Remembering (Cambridge University Press, 1977); R L Atkinson, R C Atkinson and E R Hilgard, Introduction to Psychology (8th Edition, Harcourt Brace, San Diego, 1983) at 243ff.

53. ALRC Report 35 at para 284.

54. ALRC Report 35 at para 285, footnote 99: D Broeder, “‘Other Crimes’ Evidence at Trial: Of Balancing and Other Matters” (1961) 70 Yale Law Journal 763; S Odgers, Character and Conduct (Australian Law Reform Commission, Reference on Evidence, Research Paper 11, 1983) at 255; H Kalven and H Zeisel, The American Jury (Brown & Co, Boston, 1966) at 160; R J Simon, “Murder, Juries and the Press” (1966) 3 Trans-Action 40.

55. See ALRC Report 35 para 285 citing, for example, M M Connors, “Prejudicial Publicity: An Assessment” (1975) 41 Journalism Monographs 1, summarising the effects of a number of American studies.

56. See, for example, S E Asch, “Forming Impressions of Personality” (1946) 41 Journal of Abnormal Social Psychology 258; D Krech and R S Crutchfield, Theory and Problems of Social Psychology (McGraw Hill, New York, 1948) referred to in ALRC Report 35 at para 284, footnote 94. “Repetition of material similar to that which provided the basis for the attitude or opinion first adopted will act by way of reinforcement, though if the subsequent material is markedly different it may obliterate or distort the recollection of information of information gathered by way of first impression”: ALRC Report 35 at para 248; see, for example, W Wilcox, “The Press, the Jury and the Behavioural Sciences” (1968) 9 Journalism Monographs 1; E F Loftus, Eyewitness Testimony (Harvard University Press, Cambridge, 1979) ch 4; E F Loftus and K E Ketcham, “The Malleability of Eyewitness Accounts” in S Lloyd-Bostock and B R Clifford, Evaluating Witness Evidence (John Wiley & Sons, Chichester, 1983) ch 9.

57. J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases”.

58. R L Goldfarb, “Public Information, Criminal Trials: Causes Celebre” (1963) 3 Publishing, Entertainment, Advertising Law Quarterly 57-68 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

59. Simon, “Murders, Juries and the Press” (1966) 3 Trans-Action 40 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

60. Roper, “The Gag Order: Asphyxiating the First Amendment” (1981) 35 The Western Political Quarterly 384 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

61. Doggin and Hanover, “Fair Trial v Free Press: The Psychological Effect of Pretrial Publicity on the Juror’s Ability to be Impartial: A Plea for Reform” (1965) 38 Southern California Law Review 672 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

62. Grisham and Lawless, “Jurors Judge Justice: A Survey of Criminal Jurors” (1973) 3 New Mexico Law Review 252 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

63. Reed, “Jury Deliberation. Voting and Verdict Trends” (1965) 45 South Western Social Science Quarterly 361 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

64. Tans and Chaffee, “Pretrial Publicity and Juror Prejudice” (1966) 43 Journalism Quarterly 647 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

65. Kline and Jess, “Prejudicial Publicity: Its Effect on Law School Mock Juries” (1966) 43 Journalism Quarterly 113 quoted in J M Shipman Jr and D Spencer, “Courts Recognise Multiple Factors in Free Press/Fair Trial Cases” at 90.

66. L C Parker, Legal Psychology: Eyewitness Testimony Jury Behaviour (Charles C Thomas, Springfield, Illinois, 1980).

67. L C Parker, Legal Psychology: Eyewitness Testimony Jury Behaviour at 163.

68. A Padawer-Singer and A Barton, “The Impact of Pretrial Publicity” in R J Simon (ed) The Jury System in America (Sage Publications, Beverley Hills, 1975) discussed in Parker, Legal Psychology: Eyewitness Testimony Jury Behaviour at 164. The study included jurors engaged in real trials. Sixty nine per cent of jurors who had been exposed to prejudicial material found the defendant guilty compared with 35 per cent of jurors who had read neutral press clippings.

69. L C Parker, Legal Psychology: Eyewitness Testimony Jury Behaviour at 165.

70. J S Carroll, N L Kerr, J J Alfini, F M Weaver, R J MacCoun and V Feldman, “Free Press and Fair Trial: The Role of Behavioural Research” (1986) 10 (3) Law and Human Behaviour 187 at 194.

71. Carroll, Kerr, Alfini, Weaver, MacCoun and Feldman at 197.

72. The limitations of these studies are argued in R M Jones, “The Latest Empirical Studies on Pretrial Publicity, Jury Bias and Judicial Remedies – Not Enough to Overcome the First Amendment Right of Access to Pretrial hearings” (1991) 40 American University Law Review 841.

73. G P Kramer, N L Kerr and J S Carroll, “Pretrial Publicity, Judicial Remedies and Jury Bias” (1990) 14 Law and Human Behaviour 409.

74. G P Kramer, N L Kerr, J S Carroll and J J Alfini, “On the Effectiveness of the Voir Dire in Criminal Cases with Prejudicial Pretrial Publicity: An Empirical Study” (1991) 40 American University Law Review 665. See also the empirical studies discussed in “Selecting Impartial Juries: Must Ignorance be a Virtue in Our Search for Justice, Panel One: What Empirical Research Tells Us, and What We Need to Know About Juries and the Quest for Impartiality” Annenberg Washington Program Conference (1990) 40 American University Law Review 547.

75. A L Otto, S D Penrod and H R Dexter, “The Biasing Impact of Pretrial Publicity on Juror Judgments” (1994) 18 (4) Law and Human Behaviour 453.

76. Attorney General (NSW) v John Fairfax Publications Pty Limited [1999] NSWSC 318 at para 95.

77. The expert witnesses both had qualifications in psychology. The evidence of one was based largely on a study conducted of the effect of the publication on mock jurors.

78. See M Chesterman, “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy” (1999) 62 Law and Contemporary Problems 69 at 90.

79. The research is being carried out under the direction of Professor Michael Chesterman (a Commissioner engaged on this Reference) and Dr Janet Chan, both of the University of New South Wales, in collaboration with the Justice Research Centre.

80. See M Chesterman “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy” (1999) 62 Law and Contemporary Problems 69 at 74.

81. “The trial on indictment of any offence against any law of the Commonwealth shall be by jury”: Constitution (Cth) s 80. The High Court has held that the effect of s 80 is not to compel procedure by indictment but to require that if an offence is in fact prosecuted on indictment then it must be tried before a jury: see Li Chia Hsing v Rankin (1978) 141 CLR 182; Zarb v Kennedy (1968) 121 CLR 283; R v Archdall; Ex parte Corrigan (1928) 41 CLR 128; Brown v The Queen (1986) 160 CLR 171. See M Chesterman, “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy” at 75.

82. See M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 140. This is clearly implicit in R v Glennon (1992) 173 CLR 592 at 601-606 (Mason CJ and Toohey J), at 611-617 (Brennan J).

83. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 135.

84. R S Stephen, “Prejudicial Publicity Surrounding a Criminal Trial: What a Trial Court Can Do to Ensure a Fair Trial in the Face of a ‘Media Circus’” (1992) 26 Suffolk University Law Review 1063 at 1086.

85. B C Schmidt, “Nebraska Press Association: An Expansion of Freedom and Contraction of Theory” (1977) 29 Stanford Law Review 431 at 431.

86. See, for example, Stroble v California 343 US 181 (1952) at 198.

87. Marshall v United States 360 US 310 (1959).

88. See Irvin v Dowd 366 US 717 (1961); Rideau v Louisiana 373 US 723 (1963); Estes v Texas 381 US 532 (1965); Sheppard v Maxwell 384 US 333 (1966).

89. 366 US 717 (1961).

90. B C Schmidt, “Nebraska Press Association: An Expansion of Freedom and Contraction of Theory” at 437.

91. Irvin v Dowd 366 US 717 (1961) at 727-28.

92. Irvin v Dowd 366 US 717 (1961) at 730.

93. 373 US 723 (1963).

94. 384 US 333 (1966) at 363.

95. At 361.

96. At 362.

97. M Chesterman, “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 130.

98. C Tanford, “The Law and Psychology of Jury Instructions” (1990) 69 Nebraska Law Review 71.

99. ALRC Report 35 at para 285.

100. ALRC Report 35 at para 285; C Petre, “View from the Jury Room” National Times (4-10 May 1984).

101. ALRC Report 35 at para 247.

102. Constitution Act 1982 (Canada) Sch B Part 1.

103. Canada, Law Reform Commission, Report on Contempt of Court (Report 17, 1982).

104. Canada, Law Reform Commission, Report 17 at 9.

105 Canada, Law Reform Commission, Report 17 at 9.

106. Canada, Law Reform Commission, Report 17 at 10.

107. Canada, Law Reform Commission, Report 17 at 28.

108. Ireland, Law Reform Commission, Contempt of Court (Report 47, 1994) at para 6.4.

109. Constitution of Ireland Art 40.6.1.

110. Ireland, Law Reform Commission, Contempt of Court (Consultation Paper, 1991) at 288-304.

111. http://www.crimenet.com.au/menu.html, 4 May 2000.

112. See R v McLachlan (Vic, Supreme Court, Hempel J, No 1470/97, 24 May 2000, unreported). The CrimeNet entries went beyond the mere recording of the fact of a previous trial and the two relevant convictions with the sentences. They each attempted to describe the circumstances of the previous trial briefly.

113. Chapter 5 at para 5.55-5.62 discusses the availability to the service provider of a defence.

114. C Walker, “Fundamental Rights, Fair Trials and the New Audio-Visual Sector” (1996) 59 Modern Law Review 517 at 539.

115. http://cnn.com/CNN/index.old.html, 31 August 1999.

116. C Walker “Fundamental Rights, Fair Trials and the New Audio-Visual Sector” at 538 and footnote 176: “See http://www.lycos.com/sow/TrueCounting.html. This total is for available Uniform Resource Locators; there are an additional 13 million distinctly searchable documents and binary objects.”

117. M Chesterman “OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America” at 142-143.

118. For an example of where a local distributor of foreign material was held liable see R v Griffiths; Ex Parte Attorney General [1957] 2 QB 192.

119. In England, a ban was placed on the identification of the defendants in the trial of the murder of James Bulger. This ban was respected by satellite stations with local offices, including Sky News and CNN, but the ban was breached by German, French and Italian satellite stations demonstrating that a range of television stations, readily available in the area of the trial, were beyond the control of the British courts. In Canada, in the cases of Karla Bernardo (also known as Homolka) and Paul Teale the Canadian courts could do nothing directly to interfere with or moderate United States broadcasts: see C Walker, “Fundamental Rights, Fair Trials and the New Audio-Visual Sector” at 524.

120. The trials of Karla Bernardo (also known as Homolka) and Paul Teale, referred to above: C Walker, “Fundamental Rights, Fair Trials and the New Audio-Visual Sector” at 525. In fact, an anonymous distribution had been attempted unsuccessfully via a server in Finland.

121. A Branscomb, “Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces” (1995) 104 Yale Law Journal 1639 at 1643.

122. Cubby Inc v CompuServ Inc 776 F Supp 135 (1991).

123. Cubby Inc v CompuServ Inc 776 F Supp 135 (1991) at 140.

124. See A Branscomb, “Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces” at 1648-1649.

125. B McKenna, “Internet Service provider Liability: Is a Code of Practice Necessary?” (1997) 2.1 Artlines 1 at 13.

126. The services were offered by Prodigy, a joint venture between Sears and IBM in the USA: see A Branscomb, “Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces” at 1650-1652.

127. A Branscomb at 1652.

128. A Branscomb at 1652.

129. The Act has come into operation as Schedule 5 of the Broadcasting Services Act 1992 (Cth).

130. Broadcasting Services Act 1992 (Cth) Sch 5 cl 91(1). For a discussion of this Act, and the regulation of the Internet industry generally, see J Eisenberg, “Defining the New Content Gatekeepers: Local and International Approaches to Regulating Internet Content” Paper presented at Cyberlaw ’99: Your Rights in the Internet World Conference, Sydney, 25-26 October 1999 (Communications Law Centre, 1999) and J Eisenberg, “Safely Out of Sight: the Impact of the New Online Content Legislation on Defamation Law” (2000) 6 University of New South Wales Law Journal Forum 23.

131. Sch 5 cl 91(2).

132. See B McKenna, “Internet Service Provider Liability: Is a Code of Practice Necessary?” at 3.

133. See Proposal 8.