[Reprinted with permission of Which-50]
Hundreds of thousands of Australians are circumventing a suppression order issued by the Victorian County Court in a high-profile criminal case. Thousands more Australians appear to be directly in breach of the order, according to an analysis of web and social media data conducted by Which-50.
The order was issued this year by the Victorian County Court, and remains in place as a second trial — involving the same defendant but with different charges — is scheduled for March next year.
Suppression orders, which are more common in Australia than in jurisdictions like the US for instance, are designed to ensure cases are not prejudiced by media reporting. This is done both so that the defendant gets a fair trial and so the victims get to have their story heard in court. Indeed, in this case, prosecutors requested the suppression order.
The current case involves an Australian with a high profile internationally.
The reaction of Australian internet users raises questions about the effectiveness of such orders, while media companies also argue such orders are hostile to press freedom.
More than 150,000 Australians (and likely many more) have sought out and read details of the verdict in the high-profile criminal matter.
Data provided to Which-50 by several US-based sites reveals that 24 hours after publication those sites generated more than 300,000 views — of which 51 per cent were from Australian IP addresses. Some of these sites provided their data on the basis of anonymity. For legal reasons, Which-50 cannot identify any of the sites, even those who were willing to share the data publicly.
They do not represent the largest media brands to have published details of the case, suggesting the number of Australians who are following the news on overseas sites is much higher.
Furthermore, an analysis of Australian tweets by KINSHIP DIGITAL commissioned by Which-50 identified more than 2500 Twitter users who have shared tweets naming the individual at the heart of the case, and linking to stories in local and overseas media.
The actual number is likely to be much higher. In the Kinship Report, the authors note, “This report is based upon filtering the Twitter firehose for retweets from people self-declared to be from Australia, either in their bio or from tweet location. This is always an underestimate and can be a very significant underestimate — up to 80 per cent of tweets are often not identified with any form of location data.”
All of the tweets we reviewed had a potential reach in the tens of thousands, and six of the top twenty had a potential reach of over a million users each.
The Kinship analysis also provides additional context. “They show that most of the activity was in retweets, and that each retweet was Liked on average about two times, and these ‘Likes’ were for the negative tweets almost exclusively. It also appears that both genders were equally active in spreading the bad news.”
Not all the tweets naming the individual subject to the suppression order pointed to stories about the verdict. However, six out of the top 20 did. The others mostly pointed to associated stories.
The actions of the Australian tweeters and retweeters would appear to be a direct breach of the suppression order, placing both the original tweeters and subsequent retweeters in legal peril.
On other sites, such a Facebook or Linkedin, merely “liking” a post linking to the story might create a legal headache.
Which-50 has chosen not to name either the individuals, the publications or the Twitter handles involved due to the suppression order.
Large global media companies with operations in Australia have adhered to the suppression order, while some have reported on the ban itself.
For instance, David McCraw, Vice President and Deputy General Counsel at the New York Times, told Which-50, “The Times is covering the [Name Redacted] story in its U.S. print editions. On advice of our local counsel, we are abiding by the court’s suppression order in Australia because of the presence of our bureau there.”
Regarding the suppression order, McCraw said, “It is deeply disappointing that we are unable to present this important story to our readers in Australia and elsewhere. They deserve to know the truth about a public figure of global influence. Press coverage of judicial proceedings is a fundamental safeguard of justice and fairness. A free society is never well served by a silenced press.”
In addition to the NYT, publications such as the UK-based Guardian have also agreed to abide by the suppression order.
However some other big international global media brands — which we can not name for legal reasons — have published articles that can be accessed by Australian browsers.
The difference between the decision to publish or otherwise appears to relate to whether a news organisation has staff and assets in Australia, according to media executives with whom we spoke.
Meanwhile, some other sites have attempted to geo-block Australian users. Such approaches are easily circumvented by determined readers.
Last week, Australian media outlets published a series of editorials explaining why they were unable to report a story of both national and international significance that had been published elsewhere around the world and was trending on Twitter.
While Australian publishers obeyed the order, as did international publishers with local operations, the actions of international publishers and users on social media demonstrate how easily and immediately such orders are circumvented.
Some media outlets in the US whose readership felt the case was especially relevant ran heavily with the story. In each instance the publishers who spoke to Which-50 said the story generated higher than average traffic and a significant portion of those visitors came from Australian IP addresses.
Search and social media provide further evidence of the community’s hunger for information and either its willingness to breach the suppression order, or its ignorance of that order.
Google results show a large spike in searches for the suppressed name on Wednesday afternoon for instance.
Twitter likewise lit up once the first reports of the verdict began filtering out.
The case highlights the difficulties faced by courts enforcing such orders in an age where information flows freely and immediately around the globe. It also demonstrates the relative powerlessness of local courts to enforce their orders in other jurisdictions.
For instance, the director of Public Prosecutions in Victoria, Kerri Judd QC, wrote to a site which published the initial verdict alerting the publication to the suppression order.
In her letter — which Which-50 has sighted — Judd noted, “The prohibition of publication in that order applies within all states and territories within Australia or on any other website or other electronic or broadcast format accessible within Australia.
“I consider that the article referred to above has a real and definite tendency to interfere with the proper administration of justice in this matter and therefore breaches the sub judice contempt principles.
“I consider that the article referred to above also breaches the proceeding suppression order currently in force in this matter. I request that you immediately remove the article from publication and ensure that your organisation exercises proper caution in future.
“I am currently considering my options in relation to sub judice contempt and breach of suppression orders.”
The letter was dated December 13, 2018. The publication in question, which is based in the US and protected by that country’s first amendment, did not take the story down and has subsequently published additional articles on the case.
Which-50 journalist Athina Mallis contributed to this report.