Essay on the extent, if any, to which the emergence of new technologies of electronic communication undermine, or threaten to undermine, the justifications for the sub judice rule.

Introduction

The media reporting of judicial proceedings is generally accepted as supporting the principle that the administration of justice should be open to public scrutiny. This open justice principle is justified on the ground that if the administration of justice cannot be hidden from the public, this will provide: (1) a safeguard against judicial arbitrariness or idiosyncrasy and (2) the maintenance of the public's confidence in the administration of justice.^FN1

Thus the High Court has held that the public are entitled to entertain a legitimate curiosity as to such matters as the violent or sudden death or disappearance of a citizen, the breaking into a house, the theft of property, or any other crime and that it was lawful for any person to publish information as to the bare facts relating to such a matter.^FN2 While it is lawful to publish the bare facts of most court proceedings, subject to various statutory exceptions (eg adoption proceedings, sexual offences in NSW, the identity of matrimonial parties) or specific court orders, the common law rule of sub judice seeks to restrict the publication of material which has the tendency to interfere with the administration of justice by preventing the fair trial of any proceeding in a court of justice.^FN3 As the sub judice rule is a particular branch of the broader law of contempt, a breach of the sub judice rule amounts to a contempt of court which empowers courts to punish summarily those whose conduct is found to be in contempt.

The justifications for the sub judice rule

The sub judice rule exists primarily to protect those individuals participating in legal proceedings from being influenced by public discussion, most often in the traditional media. A subsidiary aspect is concerned with the administration of justice as a whole: in this case the sub judice rule seeks to prohibit publications which, while not influencing the outcome of a trial, have the tendency to prejudice issues at stake in it or to embarrass the court involved, and so impede the administration of justice.^FN4 There is thus an obvious relationship between the sub judice rule and the rules of evidence. The sub judice rule supports the rules of evidence by attempting to ensure that inadmissible evidence, and material which while admissible is not admitted into evidence, is excluded from the jury.^FN5

Types of publication that justify the sub judice rule

The following list sets out the more common types of publication which may justify the application of the sub judice rule to sustain a finding of contempt against the author, publisher and/or broadcaster.

• Publication of the identity of the accused in criminal proceedings may amount to a contempt of court if identity might be an issue in the proceedings. Thus a contempt may be committed by the publication of a photograph of the accused or by a broadcast of footage of the accused.^FN6 The risk of prejudice in such a case arises not simply because of identification by potential witnesses at the trial, but also because of the issue of out of court identification during the police investigation.
• The interviewing of a witness in proceedings may amount to a contempt of court because the witness may feel constrained to maintain the account given to the media when later giving evidence. In addition, one witness"s account of events may have an effect on the evidence to be given by another witness who may, for example, not wish to contradict that published account for fear of non-conformance.^FN7
• Publication of material hostile or abusive towards potential witnesses with the intention of coercing them into not testifying will amount to a contempt of court.^FN8
• Publications which reveal the criminal record of the accused will generally be a contempt of court because the prejudicial effect of such a revelation is considered to significantly outweigh any probative value that its publication might have on potential jurors.^FN9
• Publications which do not concern the merits of particular criminal proceedings but which concern the character of the accused may amount to a contempt of court because potential jurors might infer that the accused is guilty regardless of the evidence which is actually brought before the court.^FN10
• Publications which refer to an alleged confession by the accused in criminal proceedings before its admission into evidence will amount to contempt of court because of the prejudicial effect it might have on jurors or potential jurors.^FN11
• The publication of what happened during a voir dire (ie during proceedings from which the jury has been temporarily excluded by the judge) will amount to a contempt of court because there is a substantial risk that the jury might be more ready to convict on the evidence already before them in the belief that additional facts implicating the accused were being kept from them.^FN12
• Publications which prejudge the merits of criminal proceedings will invariably amount to a contempt of court because of the possible appearance that "trial by media" may influence the impartiality of the proceedings.^FN13
• Publications may amount to contempt of court if they subject a party in the proceedings to improper pressure to discontinue or settle the proceedings.^FN14

Underlying the possible prejudicial effect that these publications might have on jurors is the premise that, despite the effect of the actual evidence given in the proceedings and any warnings by the judge to ignore publicity, the jurors' deliberations may still be tainted,^FN15 particularly so because the content of such publications would not have been tested in cross-examination.^FN16

Prosecution for breach of the sub judice rule

For a person to be successfully prosecuted for breach of the sub judice rule, it must be shown that the person was responsible for a publication relating to pending proceedings^FN17 which had a real and definite tendency as a matter of practical reality to prejudice those proceedings,^FN18 having regard to all the circumstances^FN19 through influence on the parties, the witnesses, the jury or deliberate prejudgment of the outcome.^FN20 Judges and other judicial officers are deemed not to be susceptible to such external influences.^FN21

A qualification to the sub judice rule exists where there is a competing public interest which outweighs the possibility of prejudice to the administration of justice in a particular case.^FN22 For example, where it can be established that the publication relates to a genuine matter of public interest and the reference to the pending proceedings is merely an incidental and unintended by- product, it is unlikely that a court will make a finding of contempt.^FN23

In determining the likelihood of prejudice in a particular case, a number of factors are taken into consideration including: the length of time between the date of the prejudicial publication and the expected trial date, the prominence and persuasiveness of the publication, the penetration of the publication in the geographic area from which potential jurors would be drawn, the amount of other publicity about the case in that geographic area, the amount of inadmissible material contained in the publication, and whether there was an intention to interfere with the administration of justice.^FN24

Who is liable to prosecution for breach of the sub judice rule

Traditionally it has been the reporter, the printer, the editor, the publisher and/or the broadcaster of the material which has breached the sub judice rule who have been prosecuted for contempt of court. The sanction applied by the courts in such cases has generally been a fine, for which there is no upper limit, although it is also open to the court to commit the offender(s) to prison, for which again there is no upper limit. Further, where the publisher or broadcaster has failed to institute a proper system for educating staff about the sub judice rule and failed to maintain a proper system of prepublication editorial checking, those failures can be a significant factor in determining the penalty to be imposed.^FN25

In this way, prosecution for breach of the sub judice rule acts as a deterrence to reporters and media organisations alike (although it would seem that reporters are normally reimbursed for any fines by the relevant media organisation).

The Internet

Often referred to as the network of networks, the Internet comprises individual computers connected to regional computers which are in turn connected to national or international "backbone" computers. Each individual node in this network is a computer directly connected to one or more others by a variety of methods: the twisted-pair copper wire, coaxial cable used by cable services such as television, fibre optic cable, microwave or satellite. From a technical point of view, each computer acts autonomously by coordinating the transfer of data with its nearest connected neighbour(s). From a management point of view, each computer is similarly autonomous, answering only to its own system administrator. The Internet has no centralised control or authority.

Internet access

To access the Internet, a user requires some basic equipment: a computer, a modem, a telephone line, appropriate software and an Internet Service Provider (ISP) which provides an account for the user on one of its computers which is connected to the Internet. Small ISPs themselves will generally obtain their Internet access from larger ISPs who obtain their access directly from an Internet access wholesaler like Telstra or Optus.

New technologies of electronic communication

The Internet has spawned a number of new technologies of electronic communication including the World Wide Web (WWW), electronic mail (email), newsgroups, mailing lists, Internet Relay Chat (IRC), live or prerecorded audio and live or prerecorded video. Each of these new technologies, which can be used to publish content, is described in more detail below.

The World Wide Web

From one text-only web site in 1991, the web has experienced exponential growth and now numbers millions of multimedia web sites^FN26 which comprise hundreds of millions of virtual pages.^FN27 Thus any Internet user can create and publish their own web pages on any topic to those who have Internet access worldwide and who choose to view them. This effectively duplicates the function of a newspaper but on a global scale. In fact, many print-based national newspapers also now have online web editions.^FN28

Electronic mail

Electronic mail enables Internet users to send more or less private messages to other individual Internet users or groups of such users. Although the sender of an email may usually be identified by the originating email address, "anonymous remailer" computers have been set up to strip the sender's email address so that it is not passed on to the recipient of the email. The relatively recent phenomenon of "free email accounts" has also increased the ability of Internet users to hide their identity because such services allow users from anywhere in the world to register without knowing who they are or where they are located.

Newsgroups

Some 15,000+ newsgroups enable Internet users to send and receive messages in topical forums in which other interested Internet users also participate. Unlike mailing lists (see below), you do not automatically receive any messages. Instead, you have the option of connecting to a news server and browsing the headers of messages (detailing the name of the sender and the subject of each message) in a particular topical forum. You can then choose to retrieve individual messages to read or not. There are also sites on the Internet which archive newsgroup messages and provide a search facility to help locate messages of interest.^FN29

Mailing lists

List servers enable Internet users to subscribe to a mailing list on a particular topic using email. Each time a particular user sends an email to the list server, the list server duplicates it and sends it as email to every other Internet user who has subscribed to that list. There are thousands of mailing lists on a wide range of topics.

Internet Relay Chat

Internet Relay Chat (IRC) enables direct communication between two or more Internet users in real time and may be used for the exchange of content including low resolution video.

Live audio or video

The average Internet user can listen to or view live and prerecorded audio or video using freely available software.^FN30 The more sophisticated Internet user can not only be the recipient of such content, but, again using freely available software, also be the creator of such content thereby effectively duplicating the function of a radio or television station.

Undermining the sub judice rule

The undermining of the justifications for the sub judice rule arises from two separate causes: (1) the nature of the new technological methods for electronic publication and communication; and (2) the inability of traditional or conventional forms of regulation to regulate that electronic publication and communication locally, nationally or internationally.

The nature of the new technologies

Unlike more traditional networks (eg broadcasting networks) the Internet is essentially user-driven because it is the users themselves who provide most of the content and not the traditional media organisations. The Internet simultaneously functions as both a vehicle for publishing content and a vehicle for communicating. Potential liability for publishing on the Internet now affects not just media organisations but millions of Internet users who are all potential publishers.

Thus Internet publishing does not come with the same checks and balances as conventional publishing does through media organisations which institute editorial checking systems to monitor possible breaches of taste and fairness, quite apart from possible breach of the sub judice rule. Traditional media organisations take these matters into consideration for essentially selfish reasons: to avoid getting sued for defamation or prosecuted for contempt and also to avoid any negative publicity which might impair their ability to attract advertisers or readers.

In addition, even traditional media organisations who retain specialist legal counsel have been known to claim that the sub judice rule is not sufficiently certain to allow them to always know in a particular set of circumstances whether it might be breached.^FN31 If one accepts this as a legitimate claim, then how much more difficult is it for the millions of Internet users without legal counsel to avoid breaching the rule even assuming that they know of its existence?

Of perhaps more concern, an individual Internet user or media organisation publishing material about a forthcoming criminal trial in an Australia jurisdiction may not be located in Australia and consequently may not be aware of, or may indeed choose to ignore, the sub judice rule.

The multi-jurisdiction problem

The Spycatcher litigation illustrates the practical limits of the power of national courts when faced by determined publishers and international media who, having outlets in many jurisdictions, are able to take advantage of the differences between the laws of those differing jurisdictions. In that case, the British Government had secured injunctions preventing the publication of the book in some jurisdictions but not others. The New Zealand Court of Appeal held that, as the book had been published in Scotland, Ireland and the USA, it would be futile to suppress its publication in New Zealand because the book was already in the international public domain.^FN32 This decision highlights the limited value of an order made in one jurisdiction to control what happens in others.

Perhaps more worrying have been the attempts by some US jurisdictions to impose their laws on web publishers operating web sites not only outside of their jurisdiction, but even outside the United States of America. In 1996 the Minnesota Attorney-General"s Office distributed a "Warning to All Internet Users and Providers",^FN33 stating that "[p]ersons outside of Minnesota who transmit information via the Internet knowing that information will be disseminated in Minnesota are subject to jurisdiction in Minnesota courts for violations of state criminal and civil laws".^FN34

The problem with extra-territorial applications of one jurisdiction's laws is that Internet publications are available instantaneously in every jurisdiction which the global Internet touches, so that all jurisdictions could claim to have an equal right to regulate Internet content which would plainly not be practical or even desirable as an Internet publisher would have to observe the sub judice rule of the most restrictive jurisdiction.

The enforcement problem

At first glance, and ignoring the obvious censorship implications, it may seem that the answer is to simply quarantine material published in those jurisdictions which do not maintain an equivalent sub judice rule so that material from those jurisdictions is not accessible in this jurisdiction.

The Internet, however, is technically indifferent to geographical location. Screening or blocking Internet resources by jurisdiction is simply not workable. Internet protocols were not designed to locate a computer in a particular geographical area but to locate the computer on the network. While some computers have addresses (domain names) which include a country identifier (eg an address ending in .au signifies Australia), the vast majority do not (eg all those ending in .com). In any event, because the address is not a physical location, but a logical address on the network, it is portable. This means that a computer with the address www.sydney.com.au could in fact be physically located anywhere in the world.

Even in cases where it is possible to determine the physical location of a particular computer, this does not provide any information about the physical location of a user of that computer. The user could have logged into the computer from any other computer anywhere in the world. So, if a user logged into a computer in NSW, connected to a computer in Victoria and then accessed resources on other computers, it would appear to any of those other computers which could determine the location of the Victorian computer, that the user was located in Victoria.

The distributed nature of the Internet further complicates the issue because the information listed on the web page of a particular computer may be simply a set of logical pointers to information physically located on various other computers scattered around the world. The information pointed to is transparently and seamlessly assembled only when requested by an Internet user equipped with a web browser.

Further, the information which is assembled may not be the original copies of the information, but rather "cached" copies of that information which were copied to a local server the last time another user requested the same information. It should also be noted that the cache may be part of a chain of such caches, each one feeding off the other: some of those caches may be located locally, regionally, nationally or even internationally.

In the past, the equipment necessary to engage in publishing provided de facto control over the content which was being published. Printing presses or broadcasting equipment could ultimately be seized to prevent any continuation of offending behaviour or broadcasting licences revoked. However, in the Internet context, replacement equipment is readily available at such a low price that such seizures would have little practical effect and licences are not required. Similarly, the use of fines to deter breaches of the sub judice rule by media organisations were relatively effective because media organisations had substantial finances and assets. In the Internet context, however, there is no guarantee that the Internet user who breaches the sub judice rule has any such financial capacity or assets - even assuming that the person is within the jurisdiction and can be traced.

The inability to regulate the new technologies

Due to the global nature of the Internet, regulation of the Internet's electronic communication technologies would not only be impossible to enforce but practically impossible to agree on in the first place. What is considered a breach of the sub judice rule and therefore contempt of court in Australia would be unlikely to be a contempt of court in the United States of America where restrictions on pre-trial publicity are for most purposes non-existent.

While detecting breaches of the law in public applications of these new technologies of electronic communication is relatively straightforward, and law enforcement is relatively straightforward where there is an identifiable offender who, along with the offensive material, is located within the jurisdiction,^FN35 law enforcement is much more difficult in an international context. It is possible for users to engage in regulatory arbitrage and thereby avoid disliked domestic laws by choosing to communicate or publish in foreign jurisdictions which have different laws, whether those laws be less stringent, more stringent or even non-existent.^FN36

The nature of the Internet makes certain types of control ineffective. Because of the way in which Internet communication can be re-routed, control can really only occur at the entry and exit points to the network (ie the computer through which the user gains access to the Internet and the computer on which the information is published). This has led to attempts to regulate Internet content by making ISPs within the jurisdiction responsible for their customers' content where it is located on the ISP's computers.^FN37

During the trial of Karla Homolka in Ontario Canada for the murders of two teenaged girls, the court ordered a publication ban on reports of the trial in Ontario to ensure a fair trial for her husband who was also charged with the murders. Despite the ban, information was widely available because, quite apart from coverage by American newspapers, cable and television stations, there was at least one US-based web site based at a US university and a newsgroup^FN38 set up to disseminate and discuss information about the trial.

When Rosemary West was charged with ten murders in Britain in 1995, details from the committal hearing were posted anonymously via an anonymous remailer to a newsgroup for all to read despite the fact that no British newspaper could have published them without being held in contempt of court because the Magistrates Court had not lifted a ban on reporting those proceedings.^FN39

In early 1996, Compuserve prevented its subscribers worldwide from accessing certain Internet newsgroups through its news server because those newsgroups were deemed illegal in Germany and Compuserve was threatened with legal proceedings by the German Government.^FN40 The fact that anyone inside Germany (and any other country for that matter) could easily find a way to access the prohibited newsgroups during the ban by using an alternative to Compuserve's news server or by using one of the sites which archive newsgroup messages, seemed to be overlooked.^FN41 However, the situation serves to illustrate the futility of trying to enforce the technologically unenforceable.

Conclusion

The advent of anonymous Internet electronic communication combined with the difficulty in tracing the authors of anonymous Internet publications threaten to render the courts' guardianship of the sub judice rule otiose because of their inability to remove the offending material from the public view and their inability to enforce any sanctions for its breach. Due to the global nature of the Internet, the location of authors and publications outside the jurisdiction would also render questionable any attempt by the courts to maintain the sub judice rule.

There remains the question of whether a publication on the Internet has a sufficient prominence and penetration of the relevant population to be considered a serious threat which could undermine, rather than simply threaten to undermine, the justifications for the sub judice rule. The Australian Bureau of Statistics has estimated that there are currently 650 ISPs in Australia and that to date 3.6 million Australians have accessed the Internet.^FN42 In view of this, and the fact that I could find no Australian case or media report on sub judice rule which involved the Internet, it would seem that the emergence of the new technologies of electronic communication currently pose only a threat. However, given the continuing growth of the Internet, it surely must be only a matter of time before the justifications for the sub judice rule are not just threatened by these technologies, but actually undermined.

Footnotes:

FN1 Scott v Scott [1913] AC 417; Attorney-General v Leveller Magazine Ltd, [1979] AC 440, at 449-450, per Lord Diplock.

FN2 Packer v Peacock (1912) 13 CLR 577, at 588.

FN3 Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242, per Jordan CJ.

FN4 Australian Law Reform Commission, Report No 35 (1987), Contempt, at 131 and 243.

FN5 Australian Law Reform Commission Reference on Contempt of Court, Tribunals and Commissions, Research Paper No 4 - Prejudicial Publicity and the Courts, at 80.

FN6 Attorney-General for NSW v Time Incorporated (NSW Court of Appeal - unreported, 24 August 1994).

FN7 Attorney-General for NSW v Mirror Newspapers [1980] NSWLR 375, at 389, 390.

FN8 R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] QB 637.

FN9 Attorney-General for NSW v Willesee [1980] 2 NSWLR 143, at 152.

FN10 Attorney-General v TVS Television (1989) The Times, 7 July.

FN11 Attorney-General for NSW v John Fairfax & Sons Pty Ltd [1980]1 NSWLR 362, at 365.

FN12 R v Day & Thomson [1985] VR 261, at 264-265.

FN13 DPP v Wran (1987) 7 NSWLR 616.

FN14 Harianakis v Sklakos (1997) 42 NSWLR 22.

FN15 Australian Law Reform Commission, Report No 35, Contempt, 1987, at 280.

FN16 Ibid, at 283.

FN17 Criminal proceedings are said to be pending between the time when the accused is arrested or charged and the determination of those proceedings including any appeal: James v Robinson (1963) 109 CLR 593; Attorney-General for NSW v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

FN18 John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351; Hinch v Attorney-General for Victoria (1987) 164 CLR 15.

FN19 Hinch v Attorney-General for Victoria (1987) 164 CLR 15.

FN20 Attorney-General v Times Newspapers [1974] AC 273.

FN21 Victoria v BLF (1982) 152 CLR 25; Attorney-General for NSW v John Fairfax & Sons Pty Ltd (1985) 6 NSWLR 695.

FN22 Attorney-General for NSW v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.

FN23 Attorney-General for NSW v Willesee [1980] 2 NSWLR 143.

FN24 Hinch v Attorney-General for Victoria (1987) 164 CLR 15; Attorney-General for NSW v John Fairfax and Sons Ltd (1985) 6 NSWLR 695.

FN25 Attorney-General for NSW v Radio 2UE Sydney Pty Ltd & John Laws [1998] NSWSC 28.

FN26 Netcraft’s September 1999 Web Server Survey found 7,370,929 live web sites on the Internet. See: http://www.netcraft.com/survey.

FN27 It is estimated that there are in excess of 320 million web pages online, excluding private, encrypted or password protected documents. Source: Quantity or Quality?, Sorcha Ni hEilidhe, April 6, 1998, http://www.nua.ie/surveys/analysis/weekly_editorial/archives/issue1no21.html.

FN28 See, for example, The Sydney Morning Herald at http://www.smh.com.au; USA Today at http://www.usatoday.com.

FN29 The most comprehensive searchable archive site is at http://www.deja.com.

FN30 For example, Realplayer software is freely available from http://www.realnetworks.com for many different computer platforms.

FN31 Australian Law Reform Commission Reference on Contempt of Court, Tribunals and Commissions, Research Paper No 4 - Prejudicial Publicity and the Courts, at 69.

FN32 Attorney-General for the UK v Wellington Newspapers Limited [1988] NZLR 161.

FN33 See: http://www.webcom.com/~lewrose/article/minn.html.

FN34 The Minnesota general criminal jurisdiction statute provides that "a person may be convicted and sentenced under the law of this State if the person...(3) Being without the state, intentionally causes a result within the state prohibited by the criminal laws of this State." Minn. Stat. Ann. Sect. 609.025 (West 1987).

FN35 Chat Room Runs Foul of Federal Law, Stewart Carter, 27 April 1999. See: http://www.it.fairfax.com.au/990427/industry. A Sydney taxi driver was held in contempt for breaching a court order obtained by the ASIC restraining him from publishing "securities reports" on his web site (http://www.chimes.com.au). He and other users posted tips on share price rumours and trading advice in a "chat" forum on the web site.

FN36 The http://www.chimes.com.au chat forum was moved off-shore to http://www.chimes.co.nz where it apparently does not run foul of New Zealand, unlike Australian, securities laws.

FN37 The Broadcasting Services Amendment (Online Services) Act 1999 (Cth). See http://scaletext.law.gov.au/html/comact/10/6005/top.htm.

FN38 The news://alt.fan.karla-homolka newsgroup is still functioning as at October 1999.

FN39 Identity Crisis on the Internet, Charles Arthur, New Scientist, Vol 145, Issue 1968 (11 March 1995); Legal Issues in On-Line Publishing, Speech by Simon Gallant. Source: http://www.hammond.co.uk/ine/gallant.html.

FN40 On-Line Service Blocks Access to Topics Called Pornographic, John Markoff, New York Times, December 29, 1995, at A1.

FN41 Fences in Cyberspace; Governments Move to Limit Free Flow of the Internet, Jon Auerbach, Boston Globe, February 1, 1996, at 14.

FN42 Referred to in the Explanatory Memorandum to the Broadcasting Services Amendment (Online Services) Bill 1999 (Cth) at http://scaletext.law.gov.au/html/ems/0/1999/0/0642404224.htm.