Lawlink NSW: 9. The fair and accurate reporting principle

9.1 Generally speaking, a publication will not constitute contempt, even if it may be prejudicial to a case, if it is a fair and accurate report of proceedings that take place in open court. For example, a fair and accurate report of bail proceedings, even one which refers to the previous convictions of the accused, may not breach the sub judice rule if that information has been revealed in open court in the course of the bail proceedings.

9.2 The courts justify fair and accurate reporting as a ground of exoneration by emphasising the public interest in the administration of justice as an open process.¹ The principle of open justice is considered to be of vital importance, not only as a means of informing the public of the processes of the courts, but also to ensure that those processes are carried out fairly, without abuse, and are seen to be carried out fairly. This public interest is considered to be of such significance that it takes precedence over the public interest in protecting legal proceedings from possible prejudice and influence by media publicity.

9.3 For this ground of exoneration to apply, a number of conditions must be satisfied:

9.4 In DP 43, the Commission acknowledged that it might not always be clear when a publication will constitute a fair and accurate report of proceedings. Certainly, a publication need not be a verbatim account of the proceedings. A summary of a part of the proceedings may instead be sufficient.¹⁹ There are, however, no clear guidelines on what it is permissible to include in and exclude from a summary of proceedings. In one case, the court identified the mode of presentation of the report, the comments or opinions expressed by the reporter about the proceedings, and the emphasis given to particular aspects of the proceedings, as factors that may affect the fairness of the report.²⁰ Following this reasoning, a report which recounts only, for example, the morning’s portion of proceedings, and omits the afternoon’s portion, may be held not to be a fair and accurate.²¹ Similarly, it is arguable that a report which focused solely or primarily on the previous convictions of an accused person, as revealed in bail proceedings, would be unfair.

9.5 In addition to being fair and accurate, the publication must also be shown to be in good faith. It has been suggested in a number of cases that a publication may be found to be in bad faith if it is not published contemporaneously with the proceedings to which it relates.²² For example, a report of committal proceedings, which was published one year after the proceedings and shortly before the commencement of the relevant trial, was found to be in bad faith and to amount to contempt.²³ However, the courts have arguably not given clear guidance as to how long after proceedings a publication may occur and still qualify as a fair and accurate report in good faith.

9.6 A final issue of uncertainty is the extent to which the reporting of prejudicial material, which was contained in a document involved in court proceedings but was not actually mentioned in any open court hearing, is protected by the principle. The important determining factor is whether, under the law governing access to such documents, the reporter was lawfully entitled to view and report on the contents of the document. This issue is canvassed in Chapter 11. The recommendations made in that chapter will affect the scope of the fair and accurate reporting principle.

9.7 Both the Phillimore Committee in the United Kingdom, and the Australian Law Reform Commission (“ALRC”) recommended the introduction of legislation to clarify the defence of fair and accurate report.²⁴ Both recommended that the legislation include a requirement that the report be not only fair and accurate, but also be published contemporaneously with, or within a reasonable time after, the proceedings to which it related. The Phillimore Committee also recommended that legislation expressly provide for the report to be made in good faith.

9.8 The recommendation of the Phillimore Committee was substantially adopted into legislation by s 4 of the Contempt of Court Act 1981 (UK), which states, “A person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.”

9.9 The ALRC, on the other hand, did not consider it desirable to include a requirement of good faith in the legislative formulation of the defence. It took the view this was unnecessary in light of its proposed requirement that the publication should have been published contemporaneously with, or within a reasonable time after, the relevant proceeding. Moreover, it stated that a requirement of good faith would require a difficult and unsatisfactory inquiry into the motive or purpose behind a particular publication, which generally would have been prepared by a team of individuals within a media organisation.²⁵ It considered that the right of the media to perform their function of reporting the operations of the courts should be absolute, and not subject to inquiries as to their motivation in reporting.²⁶

9.10 The ALRC proposed an exception to the defence: that it should not apply to a publication of a report of part of the trial that took place before the jury was empanelled or in the absence of the jury.²⁷ It intended this exception to cover arguments on legal matters, including particularly the admissibility of evidence, which are put to the court on a voir dire, and also pleas of guilty to one or more other offences at the beginning of a trial where the accused had pleaded not guilty to one or more other offences.²⁸

9.11 In DP 43, the Commission did not propose any changes to the common law on the fair and accurate reporting principle. It considered that it might be sufficient for the courts to clarify the possible uncertainties on this principle. However, the Commission welcomed submissions on any possible reform issues.

9.12 The Commission received one submission that dealt specifically with this matter. Mr Craig Burgess, lecturer in Journalism at the University of Southern Queensland, noted the difficulties the media have had in using the fair and accurate principle as a basis for informing the public about legal proceedings.²⁹ He warned that if the standards of fairness and accuracy are set too high, there is a danger that media organisations, especially regional ones with less resources, may become reluctant to cover complicated and long-running trials for fear of legal action.³⁰

9.13 Mr Burgess wrote that in view of the importance of freedom of communication, it is not satisfactory to leave it to courts to clarify what a fair and accurate report is.³¹ He expressed the view that in the interests of certainty and consistency in the law, legislation should be introduced similar to that recommended by the Phillimore Committee and the ALRC.³² He disagreed, however, with the recommendation of the ALRC to the extent that it excluded a good faith requirement.³³ Moreover, he expressed preference for the fair and accurate principle to be a component of liability rather than to be treated as a defence, where media defendants would have the burden of proving the existence of the elements of the principle.³⁴

9.14 In light of the submission, the Commission re-examined the desirability of legislative reforms similar to those recommended by the ALRC and by the Phillimore Committee.

9.15 The main idea common to the recommendations of both the ALRC and the Phillimore Committee is the requirement that the publication should have been published contemporaneously with the relevant proceeding. This requirement would apply, for example, in situations involving publication of reports of committal proceedings many months after they had taken place but close to or during the trial of the accused.

9.16 The Commission does not contest the purpose of such a requirement. The timing of reports of legal proceedings should be considered relevant in the determination of whether or not they come within the fair and accurate principle. Reports on legal proceedings must, ideally, be made immediately or within a reasonable time after conclusion of proceedings, when all the evidence has been given and properly assessed by the court. Media reporters would by then be in a better position to report details of the proceedings accurately. Alternatively, the reporting may be done while the proceedings are ongoing, provided it is fair account of what has so far happened. On the other hand, a substantial delay in the publication of a report may be indicative of some improper purpose rather than a genuine desire to inform the public about details of the proceeding.

9.17 The common law has dealt with such a situation through its requirement that a fair and accurate report must also be made in good faith. It was held by the Supreme Court of Victoria in R v Scott³⁵ that to publish an article about a committal proceeding a year after it finished was an indication of an absence of good faith. The court in that case, however, looked at other factors as basis for its conclusion of a lack of good faith: the publication was made when the trial was imminent and, it was published in a form to disguise the staleness of the event (the committal proceeding) it was based on.

9.18 In light of the good faith rule developed by the common law on the fair and accurate principle, a legislative requirement that the publication should have been published contemporaneously with the relevant proceeding may be unnecessary. The common law rule seems adequate to deal with situations which the proposed legislative reform was intended to remedy. The common law rule is also more flexible than a statutory contemporaneous requirement. At common law, delay in publication is not conclusive evidence of lack of good faith: delay might be justified under certain circumstances. Rather, delay is only one factor courts will consider in deciding whether or not the protection afforded by the fair and accurate principle applies. A lack of good faith could be gathered from the unfairness of the published report, if it is partial, if it misrepresents the proceedings, by withholding material facts, which would put a different complexion upon facts truly reported.³⁶ The common law examines a delay in reporting of a legal proceeding in the context of the attendant circumstances. This, to the Commission, is an effective approach in the determination of whether media reports of legal proceedings come within the fair and accurate reporting principle, even though there was a substantial delay in the publication of the report.

9.19 Another feature of the ALRC recommendation is the proposed exception to a fair and accurate reporting defence: that it should not apply to a publication of a report of part of the trial that took place before the jury was empanelled or in the absence of the jury.³⁷ The exception would cover arguments on legal matters, including the admissibility of evidence, which are put to the court on a voir dire.

9.20 This qualification to the fair and accurate reporting principle already exists at common law. It has been held that a newspaper that reported allegations of a confession by the accused, which were the subject of arguments as to admissibility during a voir dire, could not rely on the immunity.³⁸ “The due administration of justice requires that the jury should be unaware of what was the evidence adduced at the ‘trial within a trial’ until after they have reached their verdict …”³⁹ The proposed statutory exception would not add anything new to the existing law on the matter.

9.21 Finally, the ALRC’s recommendation would require the media defendant in contempt proceedings to carry the burden of proving that all the elements of its proposed fair and accurate reporting defence are present.⁴⁰ At the moment, it appears that the principle operates at common law as a component of liability: it is for the prosecution in contempt proceedings to prove, beyond a reasonable doubt, that the publication was not a fair and accurate report, if the defendant raises this issue. The lone submission on the matter opposed the ALRC’s recommendation.⁴¹ The Commission does not see a need to change the status quo.

9.22 In sum, the Commission has not changed the position it took in DP 43 that the common law principle on fair and accurate reporting does not need legislative reform. However, any legislation enacted pursuant to this Report should make it clear that the common law principle is to be retained alongside the principles laid down in the legislation.

9.23 It should be noted the Commission in Chapter 11 of this Report recommends a right of access to certain types of documents involved in court proceedings and a right to publish the contents of these documents. To the extent that the media’s right to report legal proceedings should also include a right to report on the contents of documents involved in them, the Commission’s recommendations in Chapter 11 would effectively widen the scope of the fair and accurate reporting principle.

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7. Ex parte Fisher; Re Associated Newspapers Ltd (1941) 41 SR (NSW) 272 at 278-279 (Jordan CJ).

8. R v Scott and Downland Publications Ltd [1972] VR 663 at 673 (Menhennitt J).

9. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 259 (Jordan CJ).

10. Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202 at 207 (Jackson CJ).

12. Minister for Justice v Western Australian Newspapers Ltd [1970] WAR 202 at 207 (Jackson CJ).

13. Ex parte Norton; Re John Fairfax & Sons Pty Ltd (1952) 69 WN (NSW) 312; R v Evening Standard Co Ltd [1954] 1 QB 578; R v West Australian Newspapers Ltd; Ex parte The Minister for Justice (1958) 60 WALR 108.

17. Ex parte Terrill; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 259 (Jordan CJ).

18. R v Scott and Downland Publications Ltd [1972] VR 663 at 675 (Menhennitt J).

21. This was a concern expressed in I Freckelton, Prejudicial Publicity and the Courts (Australian Law Reform Commission, Reference on Contempt of Court, Tribunals and Commissions, Research Paper 4, 1986) at 97.

22. See Minister for Justice v Western Australian Newspapers Ltd; R v Scott [1972] VR 663; R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281.

24. United Kingdom, Committee on Contempt of Court, Report of the Committee on Contempt of Court (Cmnd 5794, HMSO, London, 1974) at para 141; Australian Law Reform Commission, Contempt (Report 35, 1987) (“ALRC Report 35”) at para 321-323, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28).

27. ALRC Report 35 at para 323, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28(2)).

29. Mr Burgess cited the High Court decision of Chakvararti v Advertiser Newspapers Limited (1998) 193 CLR 519, a defamation case, as creating further uncertainty on the law on the fair and accurate principle.

37. ALRC Report 35 at para 323, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28(2)).

39. Attorney General v Leveler Magazine Ltd [1979] AC 440 at 450 (Diplock LJ).

40. See ALRC Report 35, Appendix A (Administration of Justice (Protection) Bill 1987 (Cth) cl 28).