Damien Cave | The New York Times | Source URL
SYDNEY, Australia — There is a criminal case unfolding in Australia that shall not be named. The defendant is a figure with a global reputation, someone of great influence in the country and the world. The charges are serious and of significant public interest.
But publishing news about this case is illegal.
Judges in Australia and some other countries, including Britain, often issue gag orders that temporarily restrict the publication of information related to a criminal proceeding on the grounds that it might sway jurors or potential jurors.
Sometimes, judges even require the existence of these orders to be kept secret.
In this case, something unusual is happening — the sweep of the restrictions is so all-encompassing that the conflict between the public’s right to know and the defendant’s right to a fair trial is rippling across the internet and the world, touching news outlets and institutions in distant countries.
If you’re not in Australia, you may have already read recent coverage of the case.
If you are in Australia or depend on online news from international organizations like The New York Times, The Associated Press or Reuters, you probably know nothing about it.
Gag orders, also known as suppression orders, are supposed to work that way. They usually apply to speech within a specific jurisdiction.
But the global nature of the internet has blurred the lines, giving local judges the power to threaten any website accessible to local residents, regardless of where the site or its journalists are based.
That includes The Times: The Times is not publishing the latest news of the case online, and it blocked delivery of the Friday print edition to Australia, to comply with the judge’s order. The Times’s lawyers in Australia have advised the organization that it is subject to local law because it maintains a bureau in the country.
Two Times journalists who have been covering the case would be at risk. The judge in the case has threatened journalists with contempt of court charges, which can bring up to five years in prison.
Some publications that have published the news have no full-time staff in Australia and face no such risk. Even naming them appears to be illegal.
But the battle reaches beyond one particular case. It’s a contest of competing democratic values.
The core debate is an old one, pitting the right of the accused to a fair trial against the right of free speech, and of the public to know what’s going on in the courtroom. Those poles are not mutually exclusive: Trials in Australia, as in the United States, are usually both open and fair.
“What you need for a fair trial are fair and unbiased jurors, not people who have been kept in the dark,” said Kurt Wimmer, a media and technology lawyer who is a partner with Covington and Burling in Washington.
Because of the way technology has shifted the media landscape, gag orders now raise additional questions of scale and geography. The question now is whether a local judge, in protecting the right to a fair trial, should have the unilateral authority to silence journalists and publishers around the globe.
In the case at hand, a criminal matter involving someone whose previous position of power touched the lives of millions all over the world, the stakes are especially high. The defendant is well known, having played a public role with issues and institutions that inspire strong emotions, making bias harder to stamp out.
On the other side are not just journalists, but also those who were affected by the defendants’ actions over many years in many places. They demand accountability, and also claim a right to know, seeing secrecy as an accomplice to the crimes of the case.
A few news outlets without personnel or a corporate presence in Australia — and therefore no legal obligation or vulnerability — have already reported the case’s latest developments online. On Twitter and Facebook, where the news can be found but is not ubiquitous, there has been praise from some Australians that the news was posted, and criticism from others worried that publication has jeopardized justice.
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Other attempts to maneuver within the law have varied. One news site published the news online but tried to block access to the article in Australia. The New York Times published the news in its American print editions, but not online, while Australian media outlets have tried to sidestep the issue, boldly calling out the court’s restrictions while avoiding mention of the underlying news.
Several newspapers published front-page editorials this week. One led with a large-font headline that said: “Censored.”
The court, in turn, has been strictly enforcing limits within a common framework.
Suppression orders that completely ban coverage related to continuing sensitive prosecutions have become more frequent in many parts of Australia. It happens more often when there are two related trials in close succession and the goal is obvious: to prevent the risk of prejudice by juries, and to ensure that accusers and the accused can have their cases heard without being undermined at trial or on appeal.
But, international lawyers note, there are other ways to accomplish that. In the United States, the First Amendment prohibits prior restraint on publication in nearly all instances. Courtrooms are rarely closed, and those that are shut mostly involve cases with classified information.
For the most sensitive, dangerous or high-profile cases, such as O. J. Simpson’s murder trial, juries are sequestered. They are kept in a hotel away from the internet, television and other media when not in court, and ordered not to discuss the case with anyone.
In Australia, too, there are states — Queensland, for one — that rarely muzzle the media to provide an extra layer of protection for a fair trial. But in Victoria, the location of this particular case, suppression orders have become fairly routine.
Hundreds of cases each year in Victoria are subject to such orders, according to court statistics — a trend that began in the 1990s with dozens of overlapping murder cases involving organized crime. And the scope of these prohibitions tends to be broad. In many cases, they bar all information derived from legal proceedings, including ancillary issues that appear to have little to do with protecting the defendant, like a judge’s ruling on challenges to the gag order itself.
Some legal experts in Australia say that such orders reflect a misplaced lack of faith in jurors’ ability to reach a fair conclusion without being influenced by coverage or related cases.
“We should trust juries, and we should give clear instructions,” said Bruce Baer Arnold, a law professor at the School of Law and Justice at the University of Canberra. He added that this was the standard in the United States, as in most of Australia. “Take the law seriously. Obey instructions. You make your decision on the basis of the argument and the basis of the facts.”
Journalists and scholars have also argued that there is another problem with prohibiting publication of facts about such a significant case: the suppression of criticism and accountability.
Several lawyers in Victoria declined to be quoted about the issues raised by this case, even generally, fearing they would run afoul of the judge.
Members of the public who have already spent months in court observing the case’s progress have also been silenced, unable to share their conclusions with the world when they are most relevant and likely to be respected.
For now, one judge in an Australian court is altering how the world sees a global figure accused of serious crimes. To preserve a local media blackout, he and the case’s lawyers, who have supported the media ban, demand that the rest of the world not publicly debate their competence or the man being prosecuted to ensure, as much as possible, fair treatment in court.
To some, that suppression of information will be seen as a triumph of justice, a noble win for local self-determination and the rule of law.
To others it will be seen as an act that, however well intended, undermines transparency and accountability in a case that much of the world would desperately like to discuss.