'The Welfare Effects of Information' by Cass R. Sunstein in
Journal of Risk and Uncertainty (Forthcoming)
comments
Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approach0es run into serious objections. With respect to (4), people may lack the information that would permit them to say how much they would pay for (more) information; they may not know the welfare effects of information; and their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.
'Restraining 'Extraneous' Prejudicial Publicity: Victoria And New South Wales Compared' by Jason Bosland in (2018) 41(4)
UNSW Law Journal 1263 comments
This article explores the powers available to courts in Victoria and New South Wales to restrain the media publication of ‘extraneous’ prejudicial material – that is, material that is derived from sources extraneous to court proceedings rather than from the proceedings themselves. Three sources of power are explored: the power in equity to grant injunctions to restrain threatened sub judice contempt, the inherent jurisdiction of superior courts and, finally, statutory powers in New South Wales under the Court Suppression and Non-publications Orders Act 2010 (NSW) and in Victoria under the Open Courts Act 2013 (Vic). It argues that the approach of the Victorian courts is much broader in terms of the scope and application of orders, which potentially explains why orders restraining extraneous material are more commonly made in Victoria than in New South Wales. It further argues that the Victorian approach presents some significant consequences for publishers.
Bosland argues
The right to a fair trial is ingrained in the common law. It is also recognised as a fundamental human right, and, in some jurisdictions, as an express constitutional guarantee. According to the law, one of the ways that the right to a fair trial may be placed in jeopardy is through the publication of prejudicial material. In most cases the concern is that exposure to certain information, especially through the media, will compromise the ability of a jury to reach an impartial verdict at trial; in other cases, media publicity may be thought to prejudice proceedings by having a distorting effect on the testimony of witnesses, or by placing improper pressure on litigants in relation to how they pursue or defend litigation in the courts. The publication of prejudicial information can be divided into two broad categories. The first category is the publication of information revealed during the course of judicial proceedings – information that can be referred to as ‘proceedings information’. A common example is the publication of a guilty plea or verdict heard in open court that could risk pre-judgment of a co-accused’s guilt or innocence; other examples include the publication of information regarding the admissibility of evidence or the competence of a witness discussed in court during voir dire (ie, a ‘trial within a trial’). The second category is the publication of prejudicial information that is from a source extraneous to judicial proceedings – in other words, information that is not revealed during, or derived from, court proceedings but which, if published, has the potential to prejudicially affect proceedings. Examples include statements alleging guilt or innocence, prior convictions, allegations of prior or subsequent criminal or disreputable conduct, photographs of an accused, interviews with witnesses, and the dramatised re-enactment of an alleged crime for which an accused is being tried.
The distinction between these two categories of information, although not always straightforward, is significant. This is because the law has traditionally dealt with each category in very different ways. At the heart of the distinction is that the right to publish proceedings information, even highly prejudicial proceedings information, is generally protected by the longstanding common law principle of open justice – in particular, the open justice rule that, subject to limited exceptions, nothing should be done to prevent members of the public, including the media, from publishing fair and accurate reports of what takes place in open court. This right means that courts can only control the publication of proceedings information by adopting specific measures, usually by granting suppression or non-publication orders (called ‘proceedings suppression orders’). In contrast, the courts have not traditionally sought to control extraneous information through the use of suppression orders. This is because the publication of prejudicial extraneous material, which is not derived from proceedings and is therefore not protected by the principle of open justice, is subject to criminal liability under the common law of sub judice contempt. Sub judice contempt is committed where it is established to the criminal standard of proof that a publication has ‘as a matter of practical reality, a tendency to interfere with the due course of justice’ in particular proceedings pending before a court. It follows that courts have traditionally left it to the threat of postpublication liability for sub judice contempt to deter the publication of prejudicial extraneous material.
Over the past decade or so, however, judges in Victoria have become significantly less confident in the capacity of sub judice contempt to prevent prejudicial publicity. Consequently, consistent with the frequent use of proceedings suppression orders in Victoria, it is now relatively common for Victorian judges to turn to the pre-emptive measure of specifically ordering that particular extraneous information is not to be published. There are a number of possible explanations for the shift towards the use of such orders. Perhaps the most significant is that prosecutions for sub judice contempt have become relatively rare. In recent years, the willingness of Attorneys-General and relevant prosecuting authorities to institute proceedings against the media for sub judice contempt has significantly declined. Thus, according to the Honourable Justice King of the Supreme Court of Victoria, the lack of effective policing of sub judice contempt has ‘ultimately led to the necessity of making ... orders to prevent what would be contempts of court’. The assumption appears to be that media outlets have become cavalier in publishing potentially contemptuous material in the knowledge that prosecution for contempt is unlikely.
In addition to perceived inadequacies with the enforcement of sub judice contempt, it is likely that changing media environments have also played a role. For example, judges may be concerned that the decline in traditional media revenue streams has resulted in fewer dedicated and experienced court reporters, creating a potential risk that the journalists reporting the courts will be less familiar with the constraints imposed by the sub judice contempt rule (and, indeed, other legal restraints on publication). Consequently, judges may see the granting of specific orders as a way of ensuring that journalists are clear as to what information can and cannot be published. Similar concerns may exist regarding the distribution of prejudicial information by ‘citizen journalists’ and social media users. Furthermore, new communication technologies and the perceived risks created by the publication of material online may also be seen as warranting a pre-emptive approach. For example, given the infinitely accessible and effectively permanent nature of material once published online, courts may see the making of orders as necessary to prevent prejudicial information entering the digital sphere and, in turn, later being brought to the attention of potential jurors.
Whatever the reasons, this article does not focus on the question of why Victorian courts are turning to prior restraints to control extraneous publicity. Instead, it is confined to the narrower task of examining the scope and application of the powers that are available to courts in Victoria and New South Wales to make orders preventing the media publication of prejudicial extraneous information. It is limited to examining these two jurisdictions because a detailed search of the case law in Australia indicates that such orders have only ever been made by courts in Victoria and, albeit to a much more limited extent, New South Wales. In examining the various powers, it makes the central argument that the Victorian courts have adopted an approach to the suppression of extraneous publicity that is considerably broader in scope and application compared to the approach in New South Wales. Importantly, this difference in approach has gone unnoted in both the case law and commentary, despite the fact that the Victorian approach imposes significantly greater burdens on publishers.
It is necessary to establish at the outset that there are three independent sources of power that courts in Victoria and New South Wales, depending on the court in question, can potentially rely upon. First, and most conventionally, superior courts can rely upon their equitable jurisdiction to grant quia timet injunctions to restrain threatened sub judice contempt. The use of such injunctions to control prejudicial publicity is well-settled and is the jurisdictional basis favoured in England and, at least up until the introduction of an alternative power under the Court Suppression and Non-publication Orders Act 2010 (NSW) (‘CSNPO Act’), in New South Wales. Second, it has recently been recognised in Victoria that the inherent jurisdiction of superior courts under the common law provides the power to suppress the publication of extraneous prejudicial publicity. This is the same source of power that has long been recognised as available to superior courts to make proceedings suppression orders; however, to distinguish such orders from their proceedings counterparts, orders restraining the publication of extraneous information are called ‘general’ suppression orders in Victoria. Third, and finally, express statutory powers to suppress the publication of extraneous material exist in both New South Wales and Victoria. In New South Wales, such power is available to all courts under the CSNPO Act, while in Victoria, the County and Magistrates’ courts have dedicated powers under the Open Courts Act 2013 (Vic) (‘OC Act’).
Parts II and III of this article examine the scope of the powers available in New South Wales. Part II begins by considering the power in equity to grant quia timet injunctions to restrain the commission of threatened contempt. It is shown that such relief is rare and exceptional and will only be granted where there is evidence that a particular publisher, unless restrained, is intending to publish a particular publication that is likely to constitute contempt. Given its narrow scope of application, it has only been successfully deployed against the media in a handful of available cases in New South Wales. Part III then considers the power under the CSNPO Act. Despite being expressed in broad terms, it is argued that the power has been given an interpretation in recent cases that is, in effect, commensurate in scope with the narrow power available in equity.
Part IV contrasts the approach in New South Wales with the interpretation of the powers of suppression in Victoria. It argues that the newly-recognised power to grant general suppression orders under the inherent jurisdiction has been given an extremely broad scope of application – certainly much broader than the power to grant quia timet injunctions in equity. In particular, the case law and practice of the Victorian Supreme Court (including the Court of Appeal) demonstrate that orders are often made as ‘general precautionary orders’. Such orders, rather than being directed towards particular publishers in relation to particular anticipated publications, broadly purport to restrain any person with knowledge of an order from publishing certain specified material or categories of material (for example, an accused’s prior convictions). It is also demonstrated in Part IV that the Supreme Court adopts a much more flexible approach to the making of general precautionary orders compared to orders directed at particular publishers. Part IV further explains that general precautionary orders have been made by the County and Magistrates’ courts pursuant to their dedicated statutory powers, despite the fact that the County Court’s power under the OC Act is expressed in arguably narrower terms.
Finally, Part V considers the consequences that the granting of general precautionary orders in Victoria can potentially pose for publishers. It argues that such orders extend beyond restraining threatened sub judice contempt; this, in turn, raises questions about the relationship between the inherent jurisdiction to grant general suppression orders and the law of sub judice contempt. It also argues that general precautionary orders, as currently made by the Victorian courts, require the removal of pre-existing internet content. Consequently, for reasons that are explained, such orders cannot be considered a proper exercise of either the inherent jurisdiction or the statutory powers under the OC Act.
