Australia’s attorneys general have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions.
The country’s chief lawmakers held an urgent meeting last Friday to discuss the disruptive effects of social media, which Australian legal experts fear could threaten the successful prosecution of a man accused of raping and murdering a popular Australian Broadcasting Corp. employee.
Meanwhile, overnight in Australia, a magistrate has issued a suppression order on publication of prejudicial content about the man charged with the murder – including on the social web. In applying for the ban, his lawyers pointed to posts on Facebook, Twitter, Youtube and blogs which they argued incited hatred against their client. Lawyers representing news publishers opposed the ban which, in an unregulated social media environment, may prove futile. But the magistrate indicated that she felt duty bound to defend the criminal justice process despite acknowledging that this is a “new world.”
The case highlights the clash between established Australian media law, which is quite strict on pre-trial publication, and growing social media — a controversy that’s led internationally to calls for law reform and tighter regulation.
A crime that galvanized online communities
When young Irish national Jill Meagher vanished last month, while walking to her home — a few hundred meters from a suburban Melbourne bar where she was socializing with ABC Radio colleagues — social media platforms like Facebook and Twitter were deployed in the search by her desperate family and friends.
Both police and Meagher’s family highlighted the role social media had played in the investigation, with investigators describing the social media campaign to help find her as “unprecedented.“
Social media communities are believed to have played a role in helping to trace Meagher’s last steps, which were captured on CCTV footage that went viral online. The video showed an encounter with a man in a blue jumper whom police believed might have been the last person to see her alive, along with several passersby.
Watching the footage of a beautiful young woman, taking what might have been her final steps, over and over again, resonated powerfully with social media users.
And when a writer-comedian tweeted that she believed a man who resembled the person in the blue jumper captured on CCTV footage had attempted to knock her off her bike while she rode in the same area earlier this year, there was a collective expression of fear on Twitter.
Just 48 hours after that footage was released, 41-year-old Adrian Ernest Bayley was arrested and charged with Meagher’s rape and murder. He led police to her body — buried in a shallow grave, beside a rural road on Melbourne’s outskirts.
The outpouring of grief I witnessed for Meagher on Twitter, Facebook and blogs in those hours is not something I’ve previously seen — not even as a journalist covering similar major crimes in the midst of grieving communities. There was unity in the grief as it was experienced collectively online — across two continents simultaneously.
And that grief was not limited to expression on Facebook or Twitter. It literally flowed onto the streets in a peace march of 30,000 people that stopped traffic along one of Melbourne’s major thoroughfares, the weekend after Meagher’s body was unearthed. This march was organized spontaneously through social media channels. It was a moving, dignified affair led by a man who carried a placard bearing the message: “Choosing peace, hope, non-violence & solidarity with all women.”
Trial by social media
But within minutes of the arrest of the man who was ultimately charged with Meagher’s rape and murder, the grief and anguish gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted.
While the magistrate who last night issued a suppression order in the case stopped short of banning publication of the accused man’s image online, Australian legal experts have pointed to the risks associated with such posts.
“For anyone to publish what is claimed to be an image of an accused person is fraught with danger and it’s very bad for the justice process … quite unknowingly an image like that can replace itself in the mind of an eyewitness, and it renders eyewitness testimony inherently unreliable,” one of Australia’s leading media law experts, Mark Polden, told Radio 2SER in a report which also quoted me.
“It’s not unfathomable that there could be such a conflagration, such a firestorm of social media commentary about a particular case that an application could be made that an individual cannot get a fair trial,” Polden also said. “Individuals need to ask themselves: Does what I’m doing have the potential to interfere with a fair trial? Could my sense of moral outrage lead to someone not being able to get a fair hearing?”
Dear tweeters: your anger & anguish
<a href="https://twitter.com/search/%23JillianMeagher">#JillianMeagher</a>'s murder is understandable but commentary about her accused may risk his prosecution.</p>— Julie Posetti (julieposetti) September 27, 2012
Traditionally, this has meant that broadcast, print and online media have had to severely restrict publication of prejudicial material about a person under arrest or facing charges. But, so it is argued, the democratizing effect of social media on publication has made those boundaries virtually unenforceable.
Many Australian journalists, law and media academics who are active on social media (me included) warned about the risks of “trial by social media” and shared educational resources about the implications of publishing (which public posts on any online platform constitute under Australian law) legally risky material with regards to the prosecution of the man accused of Meagher’s murder.
— VictoriaPolice (@VictoriaPolice) September 28, 2012
These calls for restraint were echoed by police, and even Meagher’s grieving husband. But attempts by the authorities to get Facebook to take down some particularly offensive and prejudicial pages which investigators worried would threaten the prosecution of the accused man proved futile. Facebook’s refusal to remove the pages attracted the ire of Victoria’s Police Commissioner Ken Lay.
“To me it’s just a nonsense that someone who is sucking an enormous amount of money out of the community isn’t prepared to invest in that community by helping it stay safe and act in an appropriate manner,’‘ Lay said in a Sydney Morning Herald story.
Ultimately, Australian authorities convinced the administrators of several of the most problematic pages to delete them. But the tussle over prejudicial content on Facebook underlined the scale of the problems for law enforcement and judicial processes posed by unfettered social media activity on websites over which Australian authorities have very limited influence.
The Australian newspaper’s Legal Affairs editor, Chris Merritt, derided me for suggesting to social media users that they’d be wise to exercise caution in their commentary on the accused man, given the potential risks, comparing me to King Canute. Merritt’s point was that trying to change the behavior of social media users is futile; it is the sub judice contempt law that needs to be changed, to accommodate new patterns of communication. And his broader point is a valid one. As I’ve said on Twitter, in interviews and in the Storify I posted on the issue, I agree that legal reform may be necessary in response to the disruptive influence of social media.
But until the law is changed, it’s important that we work with it, in my view. I’d rather go hoarse urging caution and promoting media literacy, than throw my hands up and advocate a social media free-for-all that could derail the trial of Jill Meagher’s alleged killer under current law.
The government response
In response to concerns about the prosecution of the man accused of Meagher’s murder, the Attorney General in the state of Victoria will lead a working group comprising academics, journalists, lawyers, lawmakers and social media company representatives in an effort to navigate this complex but fascinating territory.
One of the potential outcomes, however, is an attempt at local regulation of international social media sites like Facebook, Twitter and YouTube in an effort to “stamp out” prejudicial content posted by users.
Victoria’s Attorney General has foreshadowed possible legal action against Facebook — and even individual users — in connection with the Meagher case.
The Attorney General in the state of Queensland, meanwhile, is extending the social media regulation quest triggered by this case to include changes to media and privacy laws to enable the identification and punishment of social media trolls. This push reflects a general move towards tighter media regulation in Australia and follows a tabloid media campaign on trolling.
The issue of social media’s impact on judicial processes and policing is not a problem exclusive to Australia, of course. But this case presents an interesting opportunity to closely examine some of the issues flowing from social media use that are affecting jurisprudence on a global scale.
UPDATE: This story has been updated to include the link above (third parargragh) to the suppression order on prejudicial content connected to this case. However, legal precedent shows (see point  in this judgement) that such orders are unenforceable outside the state of issue. So, it is likely to be ineffective in curbing prejudicial content posted to the web outside of Victoria. Meanwhile, it is unclear how or if the order will be enforced with regard to local posts made on internationally hosted sites like Facebook.
Julie Posetti is an award-winning journalist and journalism academic who lectures in radio and television reporting at the University of Canberra, Australia. She’s been a national political correspondent, a news editor, a TV documentary reporter and presenter on radio and television with the Australian national broadcaster, the ABC. Her academic research centers on journalism and social media, on talk radio, public broadcasting, political reporting and broadcast coverage of Muslims post-9/11. She’s currently writing her PhD dissertation on ‘The Twitterisation of Journalism’ at the University of Wollongong. She blogs at Twitter.