A QUT law researcher says media organisations may need to be much more vigilant in monitoring public comments on their Facebook pages after a Supreme Court judge this week found three outlets liable for publishing allegedly defamatory comments.
Rachel Hews has spent more than four years researching whether the Australian sub judice rule – which prohibits the publication of information that might prejudice pending criminal trials — is suited to the digital age. (Defamation and sub judice contempt are both based on the publication of information, so there are similarities in the way both laws apply in practice.)
In particular, she looked at prejudicial publicity on social media during high-profile criminal trials.
The former federal police officer, who is now a QUT Law School lecturer and PhD researcher, analysed 33,067 tweets made about Gerard Baden-Clay during his murder trial, and 8934 tweets and 1575 Facebook comments posted on news posts about the Gable Tostee murder trial.
She found 62 per cent of those Facebook comments on Tostee had prejudicial content, as did 17 per cent of the tweets about Tostee and 6 per cent of the tweets about Baden-Clay.
“I looked at sub judice contempt rather than defamation, but the issue as to who is liable for the publication of potentially unlawful comments posted by everyday users on social media is still the same,” she said.
“We didn’t see these types of conversations in newspapers and traditional media so our media laws have not evolved in a way that is well adapted to dealing with comments on social media. More work is needed to determine how the law should respond to these issues.
“Our private conversations by the water cooler were not visible like they are now on social media … it’s not that people didn’t have these conversations in the past, they just weren’t published.”
Ms Hews said her analysis of tweets and Facebook comments had found a much higher percentage of prejudicial comments on Facebook. She said she suspected this was because the Facebook comments were made by the general public but many of the Tweets were made by journalists who regularly used the platform to share news.
“Most journalists are responsible and understand and abide by the law – members of the general public do not always have that same knowledge and accountability,” she said.
“The current laws have been effective in regulating the way professional journalists report and communicate news about criminal trials. But they are less effective in regulating discussion or commentary by non-journalists.”
Ms Hews said, in addition to the responsibility of media organisations, there was also increasing pressure on social media platforms to moderate harmful content.
Ms Hews is a PhD candidate in QUT’s Digital Media Research Centre and QUT’s Intellectual Property and Innovation Law program.
QUT Media contacts:
- Mechelle McMahon, media@qut.edu.au
- Rose Trapnell, media@qut.edu.au or 0407 585 901 (including after hours)