Are supression orders antiquated in the digital age?

Posted on Apr 17, 2019 by Peter Mullen   |   Categories: Criminal & Traffic Law

On 11 December 2018, Cardinal George Pell was convicted of five charges relating to child sexual abuse in the Victorian County Court in Melbourne.

As a former treasurer of the Vatican, his conviction made him the most senior member of the Catholic Church to be found guilty of child sexual abuse.

The court case created huge headlines around the world, but not here in Australia.

That is because the Court issued a suppression order prohibiting Australian media from publishing any details of the case. Breaching a suppression order can have serious consequences, including being charged with contempt of court.

The Court determined that should Pell’s identity become public knowledge, it might prejudice another trial set down in March. In other words, media coverage of the December verdict may result in a biased jury and Pell would not receive a fair trial.

The suppression order was eventually lifted in late February when the prosecution announced it would not be proceeding with the other trial because key evidence was not admissible.

But although the suppression order had the intended effect of stopping the vast majority of Australian media disclosing information about Pell’s case, it did not prevent publication of the story by foreign-owned media organisations. This is because foreign news services are generally not subject to suppression orders issued in Australia, unless they have subsidiaries that are based here. Reuters and The Associated Press, for example, reportedly refused to publish the story for this reason.

Nor did the suppression order prevent details of the case, including Pell’s name and the verdict, being widely disseminated on the internet. Indeed, Pell’s identity quickly became common knowledge as his name reverberated around the world wide web and on social media. Google searches for his name reportedly spiked, while tweets likewise proliferated on Twitter.

This begs an obvious question: are suppression orders fit for purpose in the age of the internet? Most would agree that suppression orders were much easier to enforce in the era of traditional media when the only mediums in existence were television, print and radio. But as Pell’s case amply demonstrates, the ubiquitous nature of the internet renders suppression orders practically futile. Cyberspace knows no boundaries.

Former VIC Supreme Court of Appeal Judge Frank Vincent summed up the incompatibility of suppression orders and the internet when he said in 2017: “Quarantining a jury from all outside influences and information has always been extremely difficult, but, in many cases, it is now virtually impossible due to ease of access through the internet and the rapidly expanding impact of social media.”

Indeed, there are now calls for a review of the suppression order framework in Australia. Arthur Moses SC, President of the Law Council of Australia, told ABC Radio in the wake of Pell’s conviction: “It’s virtually impossible to quarantine juries from social media from the internet,” he said. “We need to have legislation that bears in mind this fundamental truth…there’s no point having, in effect, legislation that dates back centuries in terms of relying on common law principles without focusing on the technology we have now.”