Media outlets that publish material about an accused person without knowing that criminal proceedings about the person had begun should not be convicted of contempt of court, according to a proposal contained in a Discussion Paper released today by the New South Wales Law Reform Commission. However, under the proposal, in order to avoid liability, the media must have taken reasonable steps to ascertain that there were no pending cases which may be prejudiced by the publication.
The so-called sub judice rule prohibits publications that might prejudice pending court cases. As the law currently stands, newspaper editors and publishers, as well as radio broadcasters, may be found guilty of contempt even if they did not know and could not reasonably be expected to have known that there was a case pending in court which may be affected by their publication or broadcast.

The Commission is reviewing various aspects of the law on sub judice contempt, as well as a bill introduced in the New South Wales Parliament in 1997 which would make media organisations pay for the costs incurred by the government, the accused and others where a court case is aborted as a result of prejudicial media publicity.

Among the Commission’s proposals are a number of new defences to a charge of sub judice contempt. The proposed “innocent publication” defence applies to those who had no control of the content of the publication containing the offending material and who exercised some form of reasonable care. For example, distributors of printed material who did not know, after taking reasonable steps to do so, that what they have distributed contained contemptuous matter would be excused from any liability.

Similarly, the defence would protect internet service providers (ISPs) and internet content hosts (ICHs) for material published on the internet through their services. However, if the ISP or ICH becomes aware of the contemptuous material, they can only be excused if they took steps to prevent it from being further published.

Another proposal is a “public safety” defence which would apply to a publication which, although prejudicial to a pending trial, was necessary to facilitate the arrest of the accused or to protect the safety the public. For example, if a person accused of a crime is at large, it may be necessary to warn the public that the person has a history of violence and may be dangerous.

The Commission’s review also looks at two topics related to sub judice contempt: (1) the power of courts to make suppression orders, which are orders that limit what may be published about legal proceedings; and (2) the rules which regulate the ability of the media and other members of the public to have access to documents involved in court proceedings.

The Law Reform Commission is seeking submissions on its proposals by post (GPO Box 5199 Sydney 1044), email (nsw_lrc@agd.nsw.gov.au) or fax (02 9228 8225).

The Discussion Paper and a stand alone summary are on the LRC web page at www.lawlink.nsw.gov.au/lrc. Copies may be obtained from the Commission on (02) 92288230. For further information, contact Professor Michael Chesterman, Commissioner in Charge (93852254) or Peter Hennessy, Executive Director (92288230).