01 April 2019

Suppression and Social Media

In AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46 the NSW Court of Appeal has made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of any information tending to reveal the identity of AB or to reveal the identity of AB's spouse or children in connection with the proceedings. The order applies to "all media including but not limited to print, radio, television, internet and social media" anywhere in the Commonwealth for 20 years.

The judgment is of interest to students of social media and open justice. The Court states
On 19 November 2017 Annabel Hennessy, a reporter for the Daily Telegraph, a tabloid newspaper published on-line and in a print version in New South Wales, posted messages on social media foreshadowing the publication of an article on 20 November 2017. Ms Hennessy’s Twitter account was followed by Bravehearts, an advocacy group for survivors of sexual abuse which itself has more than 70,000 followers on Twitter .
On 20 November 2017 Ms Hennessy published an article which purported to report on the sentence imposed on the applicant for the crimes he had committed. The article bore little, if any, resemblance to the facts set out above. The headline read: “Victims fight court secrecy. HIDE AND FREAK. EXCLUSIVE: Judge spares predator jail because of insomnia and ‘high cholesterol’.” The applicant was described as a “predator” and “a sex monster”. Ms Hennessy wrote that he had “raped girls as young as nine at his church”, implying not only that the applicant was in some position of authority at the church but that there was a very substantial age difference between him and the complainants. It was also reported (incorrectly) that the sentencing judge had made a suppression order to protect the applicant’s name from disclosure. North DCJ subsequently confirmed on 1 December 2017 that he had not made an order under the Act and that, in so far as there was an existing prohibition on the publication of the name of the applicant or the complainants, that arose from the Children (Criminal Proceedings) Act
For the following week, the Daily Telegraph continued to publish articles relating to the applicant both in its on-line and printed format. Its misreporting of the proceedings had the effect of inciting community outrage against the applicant, the sentencing judge and the administration of justice. The Daily Telegraph’s message to its readers was that the applicant continued to pose an urgent and present danger to children which the law had entirely failed to address, much less prevent. It insinuated that the only explanation for the suspended sentence was that there was a conspiracy or some act of corruption that had interfered with the course of justice. Its reporting prompted the Attorney-General and the Leader of the Opposition to make public statements, which were apparently based on the media reports that were critical of the sentencing decision and the non-publication order which was then understood to be in force. There was no indication in the content of these public statements that their makers were aware of the approach the Crown had taken in the sentencing hearing, the agreed facts and other evidence or the reasons in North DCJ’s sentencing judgment.
Despite the operation of s 15A of the Children (Criminal Proceedings) Act and the order which was thought to have been made by North DCJ on 30 January 2017, the articles identified the applicant by publishing his actual initials, his age, his occupation, social circumstances and locale, as well as a partially pixelated photograph that had been copied from his daughter’s Facebook page. These matters were sufficient to identify the applicant to anyone who knew him.
The articles gave rise to substantial media and social media interest in local and national newspapers, local television, local and national radio, online news sites, blogs, Twitter , Facebook and other “special interest” sites. The community response to these reports was, in the main, vitriolic. Many comments, which constituted little more than ill-informed abuse, were made by people who felt entitled to express their views on a basis which paid no attention to the facts, which had not in any event been accurately reported. The posts contained threats of murder and were generally abusive towards both the applicant and the sentencing judge. One included a photograph of a noose, which can be taken to intimate that the applicant ought kill himself. One such post said, “vigilantes need to visit him on his farm”.
By letter dated 21 November 2017, Elders, with whom the applicant had done business for his entire working life to that point, cancelled his trading account and refused to act for him at the sale scheduled for 1 December 2017 or to fulfil his then current order for farm supplies and had determined not to answer any questions the applicant might pose about this action. 
By about 23 November 2017, at least two persons had published the applicant’s name, address and photograph on Facebook. This would have been sufficient for anyone who did not already know the applicant to identify and locate him.
Approximately five days after the initial publication on 20 November 2017, an on-line petition was started against the applicant. Within a few days 5,000 signatures were collected. Readers were permitted to comment as well as indicate their support for the petition. Many of the comments involved threats of violence, including murder, against the applicant. There was discussion about how the applicant could be killed. The overall gist of such comments was that, for improper reasons, the sentencing judge had not imposed an adequate sentence on the applicant, that the legal system had failed to address the continuing danger posed by the applicant and that, as a consequence, members of the community would be justified in taking the law into their own hands.
Not long after the publicity began, the applicant received threats of physical harm by telephone and in person. He was ostracised from his church and his community. Because Elders refused to sell the applicant’s cattle at auction they could only be sold privately and at generally lower prices. Although the applicant, who continued to live a relatively secluded life, did not read the articles in print or on the internet or use social media, he was soon made aware of the effect that they were having on others. He learned of the way in which he was being portrayed and the threats which were being made against him. The applicant’s mental and physical health and, to a lesser extent that of his wife, were immediately affected. ... 
Ray Hadley, a radio commentator, and others, spoke about the case on air. Their stations published articles online. The disparity between the broadcast and published comments on the one hand and the truth on the other remained. The online article referred, incorrectly, to the applicant as “the head of a religious cult when he began attacking the then eight and ten year olds” and said that the judge had “ruled that the applicant’s name be kept secret [true] while the victims can be named [false].” As referred to above, the victims could be named because they had consented to disclosure of their names, an avenue available to them under s 15D of the Children (Criminal Proceedings) Act. 
On 23 May 2018, in breach of the non-publication made by North DCJ on 12 December 2017, Mr Hadley concluded his radio program with the exhortation: “name the filthy low grub at every opportunity”.
In considering 'Evidence of publicity in newspapers and social media and the relationship between the two' the Court states
  Mr Dunstan deposed in his affidavit of 4 July 2018 that he had been instructed that since the first non-publication order was made on 12 December 2017 the frequency and level of publication of the applicant’s identity had reduced and the frequency and level of harassing conduct directed at the applicant and his family had also reduced. He did, however, refer to the following events: (1) the applicant’s mailbox at the entry to his residence had been destroyed; (2) the applicant had been ostracised by members of the local community while going about his business in the local area, including at retail outlets; (3) members of the public have called the applicant a “dirty grub” when they have encountered him; and (4) the publication of Facebook posts, which referred to the applicant as “a devil” and belonging to a category of “sex creeps”, foreshadowing an intention to recommence a campaign against the applicant if and when the non-publication order is lifted. 
The evidence before the Court below also included the Facebook post on 5 July 2018, extracted above, which threatened a worse “community backlash”.
“The admitted guilty predator continually utilises the system to protect himself (today again trying to appeal against releasing his name) . . . The community backlash against him will be much worse than if he had simply let the system work as it should last year.” 
In his evidence, Professor Cunneen addressed the potential effect of lifting the non-publication order which had been in place since the first non-publication order was made. He said:
“64. I conclude that the evidence showing (a) the substantial history of online threats against AB, (b) the history of direct physical threats and actions against AB, (c) the link between social media and vigilante responses in other parts of Australia, demonstrates there is a real risk that vigilante-style action against AB and his family may be inspired by media and social media in the event of a suppression order being lifted. 
65. Based on the evidence and reasoning presented in this Report, I conclude that if the suppression order is lifted media and social media are likely to further identify AB. There is an identifiable risk that this may result in: the re-intensification of media and social media commentary on AB; social media commentary that vilifies AB; and social media commentary that condones and/or actively encourages actual physical harassment or violent actions against AB and potentially as a consequence his family.” 
Professor Cunneen was required for cross-examination at the hearing in the Court below on 21 January 2017. He referred to the connection between “mainstream media”, which incorporates newspapers and other mass circulation publications and broadcasts, and social media. He gave evidence that social media tends to create an environment where one or more isolated individuals may be inclined to take vigilante action as a result of urgings on social media. He contrasted the present situation with the “pre-social media” era when vigilante action tended to be undertaken by organised vigilante groups. He said: 
“[T]he environment that is created through the social media post, particularly the environment of the need to take direct action, the need to retaliate in some way against offenders who are not seen to be dealt with adequately by the Courts is widespread in these types of sites and as I've said a number of times now I don't think you can easily draw any simple causation with individual actions and the broader social media demands but what you can do, I think, is see that there is an environment that's created and the difficulty is from a prediction of risk, if you like, is that we're talking about large numbers of people, who we know very little about, and as I've mentioned, you know, they can be a number in the thousands or the tens of thousands and that is where the real possibility of the risk of violence occurring and I mean I don't think we can predict it but I think we can establish that there is a potential risk there.”
The Court went on to state
... In these circumstances, it is not necessary for this Court to attempt to quantify, even if it were possible to do so, the potential for vigilantes, inflamed by the excesses of social media, to take action to implement the numerous threats made through such posts. It is sufficient to say that the threats of murder cannot be dismissed, as the Crown submitted they ought to be, as idle “venting”. 
Open justice 
As referred to above, s 6 requires this Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The public interest in open justice is served by reporting of court proceedings and their outcomes. Open justice normally requires the identity of the offender to be revealed. The media, when it reports such proceedings fairly and accurately, deserves the description that it is the eyes and ears of the public. This is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John  Fairfax Publications Pty Limited v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20]: "Nothing should be done to discourage fair and accurate reporting of proceedings." 
In the present case, the “reporting” of the proceedings by the Daily Telegraph was neither accurate nor fair and contained information or imputations that were significantly misleading and emotive. Its reports were further distorted on social media. 
The only relevant effect that a non-publication order would have in the present case is to prevent the further identification of the applicant and his family in connection with these proceedings with the aim of eliminating or minimising vigilante conduct engendered by the misreporting of the proceedings.