"Despite the rise of social media, suppression orders do still have a place in the digital age. They can reduce (if not entirely limit) the exposure of the Australian population to information that can damage future court cases."
Andrew Ray and Bridie Adams raise concerns regarding the efficacy of suppression orders in the social media age.
Content Warning: This article contains reference to child sex abuse cases in Australia.
* This piece reflects the view of the authors and does not necessarily represent the view of their employers.
Cardinal George Pell was found guilty of historic child sex abuse offences on 11 December 2018 in the Victorian County Court. Due to the presence of a suppression order authorised under pts 2–3 of the Open Courts Act 2013 (Vic) this was not reported in Australia until the order was lifted in February 2019.
Despite the presence of this order, Australians were able to read about the verdict on social media and on overseas-based media platforms, which are not bound by Australian suppression orders. [1]
Additionally, various media outlets in Australia published articles hinting at the verdict with headlines such as ‘Censored’, ‘It’s the Nation’s Biggest Story’ and ‘Why media can’t report on a high-profile case’. Subsequently, 36 news organisations and journalists have been charged with contempt of court. [2]
The suppression order in the Pell case was made to protect the court process in a future proceeding against Cardinal Pell (the charges were subsequently dropped leading to the lifting of this order). This order could, arguably, have been very important to validity of Pell’s proposed next trial, as if a guilty verdict were widely discussed and publicised by Australian media it would be impossible to find a jury of 12 people who had not been exposed to that material. Given the national (and international) significance of the Pell trial and strong opinions in the Australian community as to his guilt or innocence, it is probable that without the suppression order we would have seen extensive reporting on the outcome of the first trial.
While various articles have suggested that this could be cured through improved jury directions by directing jurors to disregard any information they had come across outside the trial [3], there are also concerns regarding the efficacy of suppression orders in the social media age.
Despite the suppression order, Australians were able to learn about the verdict in December 2018 (perhaps aided by the media organisations now facing contempt proceedings). As the below graph shows, while Google searches for ‘pell’ peaked in February 2019 (when the suppression order was lifted), a significant number of searches (~75% of the peak) were made the week of the verdict, implying that many Australians were aware of the verdict well before the suppression order was lifted by the County Court. [4]
Despite their limited efficacy, there is still a place for suppression orders in the Australian justice system. As the data shows, the order did reduce the media attention on Pell. Additionally, the 36 media outlets and journalists now facing contempt charges possibly increased the search frequency with their own reporting — reporting which may be curtailed in the future given the seriousness of the charges they are facing. As noted by Chief Judge Peter Kidd, these reporters did not appeal the suppression order, instead they simply reported on the conviction in a manner allegedly in contempt of court. The presence of such an appeal route is an appropriate method to ensuring that suppression orders are not misused by courts, with the High Court having overturned suppression orders in the past.
The alternative to suppression orders is to risk widespread media coverage, coverage which would have affected any subsequent trial of Cardinal Pell. This in turn could then have allowed either the defence or the prosecution to argue that the trial was unfair and have the verdict altered on appeal.
However, there are improvements that could be made. Currently, there are significant differences between Australian jurisdictions on when and how suppression orders are made. For example, Victorian judges are more likely to grant suppression orders. Particularly, due to the nature of suppression orders, commentators in different states don’t often have awareness of the content of an order and can accidentally breach them. [5] State legislative reform following a national review of suppression orders should be pursued to improve consistency between states and to create a national database so that suppression orders can be appropriately monitored and followed. The creation of such a database would, in and of itself, also aid in ensuring both consistency between granted orders and their efficacy.
Despite the rise of social media, suppression orders do still have a place in the digital age. They can reduce (if not entirely limit) the exposure of the Australian population to information that can damage future court cases. Even if arguments suggesting there is limited utility to suppression orders in a digital age hold sway, they cannot be validly mounted on the back of evidence from the Pell trial due to the volume of potential breaches of this order.
References:
[1] See, eg, Margaret Sullivan, ‘A top cardinal’s sex-abuse conviction is huge news in Australia. But the media can’t report it there’, Washington Post (online), 12 December 2018 <https://www.washingtonpost.com/lifestyle/style/a-top-cardinals-sex-abuse-conviction-is-huge-news-in-australia-but-the-media-cant-report-it-there/2018/12/12/49c0eb68-fe27-11e8-83c0-b06139e540e5_story.html?noredirect=on&utm_term=.9ed66d83d914>.
[3] See, eg, Karen Percy, ‘George Pell trial suppression orders breached by news organisations, Victorian prosecutor alleges’, ABC News (online), 27 March 2019 <https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375>. Directions orders are themselves worthy of an entire article, however it is unclear whether directing a jury to disregard information is effective in altering their underlying subconscious views (which can in turn affect their decision-making). For more on the effect of heuristics (mental shortcuts) consider reading Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus and Giroux, 1st ed, 2013).
[4] Data taken from Google Trends, search term ‘pell’, area: Australia.
[5] Mark Pearson, ‘You wouldn’t read about it: Adrian Bayley rape trials expose flaw in suppression orders’, The Conversation (online), 27 March 2015 <https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375>.