Shield Laws in Action

Gina Rinehart has lost the legal battle in Western Australia to have information, in regards to a family dispute, subpoenaed.

Journalist Steve Penell from West Australia Newspapers wrote an article detailing the alleged dispute over 18 months ago. He cited confidential sources and the mining magnate sought to have the identity of these sources revealed, in a bid to sue for defamation.

This was the first time that Shield Laws have been property tested in Australia since they were introduced in 2011 under the Evidence Amendment (Journalist’s Privilege) Act.

The laws aim to protect the identity of journalistic confidential sources and give reporters the right to refuse testimony.

Before the 2011 amendment the courts could order for documents and sources to be revealed as they saw fit according to the case at hand. This often led to journalists being charged with contempt of court as they refused to do so, as ethically in the industry it is strongly discouraged. This was demonstrated in a string of cases including the landmark case of R v Harvey and McManus.

Janine Pritchard, the presiding judge on this case, set a strong precedent for the laws to be construed strictly. She stated that the presumption of journalistic privilege should “not be departed from lightly”.

For this reason the case has been hailed a win for professional journalists and is predicted to set the standard of the laws, not only in Western Australia but also across the nation.

However, the privilege outlined in the new Shield Laws is still not absolute and can be revoked by the courts if they can suffice the public interest test. This test questions whether the disclosure of sources is necessary for the administration of justice or whether it is more important to allow for the journalist to honour their promise of confidentiality.

It is important to remember that the Shield Laws do not provide a loophole that enables journalists to avoid giving evidence in court. The fundamental right to a fair trial will prevail in cases where the confidential information forms key evidence.

Despite this the laws do appear to create a fair compromise between journalistic ethics and the fair administration of justice.

To read more about the effect of the new laws visit this site.


Social Profiles After Death

I have never drawn up a will, mainly because I am a 22-year-old student that owns a couple of books and a dodgy car named Panda. However, I imagine that if I was to do so deciding whom I was going to leave my social media and email accounts to, would not really cross my mind.

Apparently, where your online information goes after you die is an important legal question to ponder.

At first this can seem quite odd, but once you start thinking about the amount of private information you hold in these accounts, it starts making a lot more sense.

As outlined in this video below, getting access to a loved one’s online profiles without instructions left in a will, can be quite a hassle. In some countries your personal information is just rendered public data, freely available to the online world without any consent.

The Internet has not only enabled information to be accessed by the touch of our fingers, but has created a whole new legal world some that are only now being realised.

Watch the video on Wall Street Journal Live.

Who’s the Twit in the Court?

As demonstrated by recent Australian high profile criminal cases, such as the Meagher, Morcombe and Baden-Clay murders, the justice system are having to consider the effects of new media on the governing constitutional right to a fair trial.

In the USA and UK there have been a number of cases whereby jurors and witnesses have been caught using social media sites such as Twitter and Facebook to comment on the case they are involved with.

Legally this amounts to contempt of court and is considered a serious violation of the justice system.

Although this is not yet a major issue affecting Australian courts, NSW have decided to cut the head off the snake enacting an amendment to the NSW Court Security Act (2005).

The newly incorporated section prohibits the ‘unauthorised transmission of court proceedings from the courtroom’ including communication through the use of tablets, smartphones and laptops.

Violation of this act carries with it fines of up to $22,000 and up to 12 months imprisonment.

There has been a significant amount of backlash amongst journalists in relation to these amendments arguing that the restrictions are a violation of freedom of speech. However, under section 9(2)(d) of the act, journalists and lawyers are exempt from the provision.

Which begs the question of whether this is just another overreaction from the media?

Yes it is true, the act eradicates citizen journalism in the courtrooms as explored in this blog.

However, it must be remembered that this is an individual’s life we are talking about not the newest Cake Pop recipe on Pinterest.

Court reporting should be left to professional journalists who have extensive knowledge of the laws and understand the degree of sensitivity needed in addressing legal proceedings.  This appears to be a move in the right direction towards a more amiable coexistence between new media and the courts.

Opening the Courts

Earlier this month the Open Court Bill 2013 entered the Legislative Assembly in Victoria. The bill predominately concerns the issuing of media suppression orders by the courts.

Over the past few years Victoria has been dubbed the suppression order capital of Australia and there has been criticism that the long-standing “open justice principle” is being jeopardised.

Currently the courts are meant to enforce an order only in select circumstances such as cases involving children, sexual offenders, national security and police informers. However, there is not a closed list of categories and judges are able to issue an order in any case that they believe it is necessary to do so.

Not only is there uncertainty in regards to how often suppression orders are made but there is also concern over whether in the digital age they are still effective.

Often case information that has been suppressed from publication is readily accessed online despite traditional media outlets adhering to the order. Particularly since the raise of social media these kind of orders are being undermined as the everyday individual publishes material that they may not even be aware has been suppressed.

This was well demonstrated in the UK with the scandal involving a football player that was “unable to be named” but which was well known to be Manchester United’s, Ryan Giggs.

Despite the argument that suppression orders are now pointless they do serve an important protectionist role, particularly in regards to children and victims of sexual offences.

The bill will hopefully see a return of the original purpose of suppression orders, which is to safeguard the vulnerable and ensure a fair trial, while opening up the court system by restricting orders made merely to save prominent figures from embarrassment.

Interested? Read more here.