Australia: Sub Judice Contempt 2.0: When and How a Court May Make Orders Requiring Online Content Hosts to Remove Material From Their Websites in Order to Prevent Prejudice to the Administration of Justice

Last Updated: 16 June 2012
Article by Justine Munsie

In its judgment delivered this week in Fairfax Digital v District Court the New South Wales Court of Criminal Appeal explored the limits of orders made under section 7 of the Court Suppression and Non-Publication Orders Act (Suppression Act) on the grounds set out in section 8(1)(a), namely that such an order is necessary to prevent prejudice to the proper administration of justice.

The appeal concerned orders which had been made in relation to the District Court criminal trials of Fadi and Michael Ibrahim and Rodney Atkinson. The orders required there to be no disclosure, dissemination or provision of access to the public, including by means of the internet, of material referring to any criminal proceedings in which the accused were or had been parties or witnesses or which referred to any other alleged unlawful conduct in which the accused were or had been suspected to be complicit or of which they were suspected to have knowledge. Fairfax, ABC, News Limited, Yahoo!7 and Ninemsn, each of which publish news online, appealed the orders on the basis that they could not be demonstrated to be necessary and that they were futile.

In allowing the appeal, the Court has determined that whilst suppression orders which require online material to be removed from public access may be made validly in order to prevent prejudice of a criminal trial, the circumstances in which such orders can be made and the scope of such orders are limited. In particular, for such an order to be "necessary" and therefore valid under the Suppression Act, it should only be made where it can be demonstrated that the general law of contempt is inadequate to prevent prejudice and where identifiable internet content hosts have been made aware of the existence of such material and afforded an opportunity to remove it.

The Court of Criminal Appeal (being the appropriate court to hear an appeal of a suppression order made in District Court criminal proceedings) considered two main issues, namely:

  1. Whether the District Court order was a valid exercise of power under the Suppression Act; and
  2. Whether the Suppression Act was inconsistent with the provisions in the Broadcasting Services Act (which exempt ISP's and internet content hosts from liability in certain circumstances) and was therefore inoperative pursuant to s109 of the Constitution.

Justice Basten delivered the principal judgment with which Bathurst CJ and Whealy JA agreed. His Honour found that, whilst the terms of the Suppression Act would permit of an order preventing access to existing publications on a website, the wide ranging order made by the District Court was invalid. His Honour continued to give some guidance as to how orders might validly be framed in order to secure the removal of certain internet content whilst not offending against the provisions of the Broadcasting Services Act.

Of particular note, Basten JA held that:

  • The word "necessary" used in section 8(1) of the Suppression Act should not be given a narrow construction. This is particularly so in the circumstances of this case which involved an order designed to protect the proper administration of justice by preventing access to material which had no connection to court proceedings and which did not impinge on open justice by preventing publication of material disclosed in court. (This can be compared, for example, with the suppression orders sought by Gina Rinehart in proceedings brought against her by her children which would have prevented any reporting of those proceedings).
  • The Suppression Act does not extend to allow peremptory orders to be made requiring private individuals to take steps to remove material from potential access by a juror.
  • The District Court orders were futile or ineffective, and therefore not "necessary" within the terms of section 8(1) of the Suppression Act, given that:
    • To be effective, parties not before the court, such as search engine providers, needed to be bound by their terms; and
    • Enforcement against parties outside New South Wales would be impractical, if not impossible.
  • A suppression order requiring removal of online material could only be necessary where it was thought that the general law principles of sub judice contempt were inadequate. This will usually require, in a criminal case, that a person such as the DPP identify material which has the potential to prejudice the proceedings, alert the relevant media organisations to the existence of the material on their websites and request that they remove it for the relevant period. If such a request were made and not complied with, an order requiring those organisations to remove the specified material may only then become necessary and valid under the Suppression Act.
  • No such steps and no such specificity had occurred in the present case. In those circumstances, the Suppression Act could not operate so as to require internet service providers and internet content hosts to monitor or make enquiries about material on their websites or to expose them to liability in relation to material about which they were unaware as such an order would be inconsistent with the provisions of the Broadcasting Services Act.

The judgment does not suggest that online news providers are immune from the operation of the Suppression Act, even though the Court acknowledged that it is not realistic to remove material from websites globally or restrict access to materials only within New South Wales. Instead the Court envisages certain circumstances in which orders requiring the removal of material will become necessary in the relevant sense. An order for removal of material should only be made following a request for its removal, which request identifies the relevant material to be removed and by whom it should be removed. Otherwise, the general law principles of sub judice contempt should be assumed to be adequate in achieving their purpose of preventing prejudice to any proceeding.

Above all, the judgment emphasises the importance and preserves the operation of the law of contempt in preventing prejudice to the administration of justice. Indeed, the Court chose to note, when making its orders, that despite the discharge of the District Court orders, any publisher might be still be in contempt if they were to continue to publish any material having a tendency to interfere with the administration of justice in respect of the forthcoming trials of the accused.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Justine Munsie
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