Text Posts, Tweets and Shares - Can Sub Judice Contempt Keep Up with Social Media?

By Robert Ishak and Amanda Hoole

Never has it been easier to share and comment on news articles on social media – anyone can post about a newsworthy event and express their opinion for public engagement. However, with the rise of the citizen journalist and without a familiarity of responsible journalism, is the common law doctrine of sub judice contempt (or, contempt by publication) a sufficient deterrent to stop material being published on the internet and on social media which may prejudice a court proceeding and interfere with the administration of justice?

What is Sub Judice Contempt?

Sub-judice contempt concerns ‘[c]onduct by publication that interferes with the due administration of justice by materially prejudicing the fair hearing of a criminal trial before a jury’ (DPP v Johnson & Yahoo!7 [2016] VSC 699, 7 [23]), and the  constraining material which has ‘as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case’ (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370). Sub judice does not concern material which is a ‘fair and accurate reporting of proceedings’ (John Fairfax Publications P/L v District Court of NSW (2004) 61 NSWLR 334, 353 [20] (Spigelman CJ)), or material which, on balance, should be published as it is in the public interest (although it is difficult to say in what circumstances such a scenario would occur) (Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 26 (Mason CJ)).  

The Court’s intention is to stop the publication of prejudicial material that could influence a jury’s decision so ‘that the material on which the jury bases its findings of fact is relevant to the charge being heard, is not hearsay (generally speaking) and can be reliably tested in court, in the presence of the jury’ (New South Wales Law Reform Commission, Contempt by Publication (Report No 100, June 2003) 19, 2.18).

Test for Sub Judice Contempt

It is the ‘real and definite’ tendency for the published material to interfere with the conduct of a proceeding that gives rise to the contempt (Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ), 34 (Wilson J)). The Court will consider various factors in determining the tendency, including ‘the nature and the extent of the publication, the mode of trial (whether by judge or jury) and the time which will elapse between publication and trial’ (Hinch v Attorney-General (Vic) (1987) 164 CLR 15, 28 (Mason CJ)). It is unnecessary to show there was an intention to interfere with the conduct of a proceeding, however, the Court may still take intention into consideration for any penalty (John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 371).

The Act of Publication and ‘Pending’ Legal Proceedings

For internet publications, the act of publication ‘occurs when the material is made available to the juror or the potential juror… [and] the contempt occurs when and where the material is available to such a person, whether it be shown that the person accessed it or not’ (News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 [65] (Warren CJ and Byrne AJA)).

To contravene the sub judice doctrine, the prejudicial material must be published while a court matter is ‘pending’, which is the time period ‘when legal proceedings are before the courts’ (Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 90 [7.54]). The time period differs depending on whether it is a criminal or civil matter, but it generally starts when a matter is filed in court or an accused is arrested, and ends when judgment is handed down (for civil matters); an appeal is no longer available or an appeal judgment is handed down (for criminal matters) (James v Robinson (1963) 109 CLR 593, 615-617; Ex parte Dawson; Re Australian Consolidated Press Ltd (1958) 61 SR (NSW) 573, 574).

Sub Judice Contempt and Juries

Although sub judice contempt attempts to insulate juries from published prejudicial material so that a jury’s verdict is not influenced by material that was not in evidence [Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 97 [7.103]], considering the widespread use of social media to post and share news articles ‘there are good reasons to think that jurors may be exposed to content about a trial either because they are deliberately seeking it out, or because it is presented within their personal feeds’ (Rachel Hews and Nicholas Suzor, ‘Scum of the Earth: An analysis of prejudicial Twitter conversations during the Baden-Clay Murder Trial’ (2017) UNSW Law Journal 1604, 1605).

In a 2017 study conducted by the University of New South Wales which analysed Twitter posts made by both professional journalists and members of the public during the murder trial of Gerard Baden-Clay, researchers found that, generally, professional journalists were able to adhere to reporting on the proceeding in a non-prejudicial manner (as they were far more likely to be aware of the possibility of committing sub judice contempt), unlike citizen journalists and other members of the public engaging in Twitter conversations, whose Tweets were ‘opinionated and prejudicial’ (Rachel Hews and Nicholas Suzor, ‘Scum of the Earth: An analysis of prejudicial Twitter conversations during the Baden-Clay Murder Trial’ (2017) UNSW Law Journal 1604, 1606). This is likely due to professional journalists being subject to rigorous internal policies of media companies thath aim to avoid committing contempt (Rachel Hews and Nicholas Suzor, ‘Scum of the Earth: An analysis of prejudicial Twitter conversations during the Baden-Clay Murder Trial’ (2017) UNSW Law Journal 1604, 1609), whereas the public, including the friends and family of jurors, are unlikely to be aware their opinions on the matter may amount to contempt of court.

Additional Measures

In conjunction with the sub judice doctrine, it has been suggested that Courts move to adopt additional remedial mechanisms such as:

  • courts taking a more active role in determining potential juror’s exposure to prejudicial material during the empanelling process;
  • courts providing more comprehensive directions to jurors which identify specific instances of sub judice contempt in the context of social media posts and to not seek out prejudicial material regarding the proceeding; and
  • moving forward with a judge-only trial where a proceeding has already been inundated with prejudicial publicity [Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 108 [7.179], 109 [7.185], 110 [7.188]].

Further, educational guidance and internet resources could be provided to the courts, its users and to the public concerning social media use and sub judice contempt, which has recently been recommended and implemented by the government of the United Kingdom (Victorian Law Reform Commission, Contempt of Court (Consultation Paper, May 2019) 110-1 [7.193]–[7.194]).

Without implementing further measures, it is difficult to see how sub judice contempt, with its own hearing requirements, can successfully and efficiently deter the publication of prejudicial material across all social media users, and not just professional journalists.