Media law experts have also warned that social media users — even though they have no training in media law — could also be sued for defamation or contempt of court over comments about the case posted on blogs, Facebook or Twitter.
Since the arrest of a 41-year old man overnight, several Facebook groups have been created attacking the accused killer — including one calling for his public hanging. Photos of the accused man have been published, as have comments assuming he is guilty of the crime. Highly-read conservative News Ltd commentator Andrew Bolt this morning posted a link to a blog containing information about the accused man’s background.
Mark Polden, one of Australia’s foremost media law experts, says such commentary has potentially dire consequences for the administration of justice and should be avoided.
“It’s not unfathomable that there could be such a conflagration, such a firestorm of social media commentary about a particular case that an application could be made that an individual cannot get a fair trial,” he said. ”Individuals need to ask themselves: does what I’m doing have the potential to interfere with a fair trial? Could my sense of moral outrage lead to someone not being able to get a fair hearing?”
According to Polden, the most important no-go areas in cases that may be heard before a jury are:
Commentary on the guilt or the innocence of the accused
Details of prior criminal convictions or charges
The publication of photos of the accused.
“The prudent view is that from the moment of arrest people are under the protection of the courts,” Polden told Crikey. “When a matter is sub judice [under judgement] you should limit yourself to objective facts of what has occurred.” Expressions of grief and anger — as well as debate about issues raised by a case (such as public safety) — are also acceptable.
The publication of photos of the accused is problematic because they could influence witnesses in their identification.
Polden says it is unlikely an individual Twitter or Facebook user with no public profile would be pursued over contempt of court or interfering with the administration of justice — particularly if the content is quickly removed by the social networking sites. The key question is whether the material would interfere with the case as a “matter of practical reality” rather than as a “remote possibility”.
