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Media Release - Contempt by publication (16 September 2003)

Narrowing the Media's Liability for Contempt

Media outlets, journalists and radio broadcasters who publish material about pending court cases should not be liable for contempt unless they are at fault, according to a Report [PDF, 1Mb] released today by the New South Wales Law Reform Commission.

Law Reform Commissioner Professor Michael Chesterman said:

'The law on sub judice contempt is necessary to ensure that jurors, witnesses and parties involved in court cases do not come into contact with publications which are likely to prevent a fair trial being held. However, there is a need to define the restrictions on publication more narrowly. This will enable the media to publish material to the fullest extent possible without jeopardising the fairness of court proceedings.'

One way to achieve the right balance, according to Professor Chesterman, is by formulating a more precise test of liability for contempt. Another is by reversing a long line of court decisions making members of the media guilty of contempt even if they did not know that there was a case pending in court, which might be affected by their publication or broadcast.

The Report recommends that media organisations contribute to the costs incurred by the accused, the government and others where a court case is discontinued as a result of prejudicial media publicity.

However, under the Commission's recommendations, publishers and others responsible for the publication must be prosecuted and convicted for contempt before they can become liable for the costs. Moreover, it must be proved that the contemptuous publication was either the sole or a substantial cause of the termination of the trial. Consequently, the situations in which a costs order could be made would be rare.

The Report also extends, as well as defines more precisely , the circumstances in which journalists and members of the public may obtain access to documents used in court proceedings. This enables the public to exercise its right to scrutinise and criticise courts and court proceedings. On a practical level for the media, it enables better reporting of legal proceedings.

The Report, which contains two draft bills, and a stand alone summary are on the LRC website. Copies may be obtained from the Commission on (02) 9228 8230.

For media comment, please contact Professor Michael Chesterman, Commissioner in Charge on (02) 9360 4962 or Mr Peter Hennessy, Executive Director on (02) 9228 8230.