02 October, 2012

Setting the record straight on 'trial by social media' and The Australian

The Australian sure knows how to maintain a vendetta. Indeed, Murdoch’s national broadsheet is the originator of what I call ‘vendetta journalism’ in Australia.

For abundant evidence, read Robert Manne’s excellent recent essay, Bad News, in which he assesses the anti-democratic impact of The Australian’s reportage in recent years. And you can watch him discuss the issues here.


My own experience of being at the receiving end of one of The Australian’s vendettas began in 2010 when I defended the popular and thoughtful blogger Grogs Gamut, who was unmasked as public servant Greg Jericho by the paper, in a move which threatened his employment. But the attacks went ‘postal’ when I live-tweeted a public lecture given by a journalist who had recently left The Australian’s employ. She was threatened, and so was I, with defamation suits by the editor-in-chief of a newspaper which loudly proclaims itself a champion of freedom of speech and “The Right to Know” (Google #Twitdef and Chris Mitchell if you’re bored).

Many headlines and column inches later, Mitchell let the defamation threat lapse in accordance with the statute of limitations, but his newspaper has continued its bizarre, sarcasm-laden campaign against me, and any part I take in public debate.

Setting the record straight

Last time I asked the newspaper for an apology or correction over what I viewed as defamatory coverage of me, I was rebuffed. And I have recently practiced a policy of not responding to The Australian’s attacks. But its decision to use the harrowing Jill Meagher case to continue the vendetta has drawn me out - with a view to setting the record straight (which academic colleagues have encouraged me to do).

Trial by social media in the Jill Meagher case 
Over the past week, I’ve been doing my small part to try to educate social media commentators about the risks of sub judice contempt and what I’ve called ‘trial by social media’ in the tragic case of the rape and murder of Jill Meagher. As the investigators and media law experts have warned, along with Jill’s grief stricken husband Tom, speculation about ‘the accused’ (41 year old Adrian Ernest Bayley of Coburg) threatens to jeopordise his prosecution. (See my Storify on the issues, if you’re interested, and read my comments in The Age).

Cut N Pasted 

The Australian, ever keen to suggest that I’m an incompetent journalism lecturer, pretended to re-educate me in an anonymously penned section called Cut N Paste. Here’s what they published on Saturday:

"The Age on one aspect of the Jill Meagher case yesterday:

UNIVERSITY of Canberra journalism academic Julie Posetti said users needed to be aware of potential implications of "trial by social media" by posting about the accused. "In this particular case, it would be awful to think about the potential consequences including an incapacity to prosecute somebody because of trial by social media, for example," said Ms Posetti, who is writing a PhD on Twitter's role in journalism.

So how did she go? Posetti on Twitter yesterday:

DEAR tweeters: your anger & anguish @ #JillianMeagher's murder is understandable but commentary about her accused may risk his prosecution.
And a little later:

... IN the social media age everyone needs a media education.

Good idea. In that spirit, Julie, some free media education from your friends at Cut N Paste: 
WHEN linking a crime to the accused - as you have by using the word "his" - don't forget to use the word "alleged". Or use "death" in lieu of the M word. Tell your friends, tell your Twitter followers and, most importantly, tell your journalism students.

Hope this example helps. One headline on australian.com yesterday: 

"ALLEGED killer faces Meagher family."

Tweet fine: "The whole thing is absurd"

So, was my tweet legally risky? No. Not in the least. But don’t take my word for it, take that of lawyer and former ABC TV Media Watch host, Richard Ackland.

He emailed the following comments on the Cut N Paste piece to me and he’s permitted me to publish them here:

“The whole thing is absurd.

Your tweet was perfectly fine.

They seem to be suggesting that it might have been prejudicial. How exactly?

It's the obligation of journalists and others not to prejudice the trial of an accused.

There was no prejudice in what you said.

You used the word "accused" in relation to the person charged. 

That implies, even to the most half-witted person, that prior to a verdict of guilt it is an accusation.
Their example "Alleged killer faces Meagher family" in no way contradicts or corrects what you tweeted.

What are they saying? - that you should have tweeted "Accused man charged with alleged murder of Jill Meagher". The allegation relates to the accused, unless the police are saying that somehow Jill Meagher dug a shallow grave, jumped in and covered it over herself.” 

Another day, another jibe

And The Australian was at it again yesterday. The paper’s Legal Affairs Editor, Chris Merritt, is taking exactly the opposite view to Cut N Paste on the social media risks in the Jill Meagher case. But he still found reason to ridicule 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. Merritt’s point is that trying to change the behaviour of social media users is futile; it is the sub judice contempt law that needs to be changed, to accommodate new patterns of communication.

As I’ve said on Twitter, in interviews and in the Storify I posted on the issue, I agree that law reform may be necessary in response to the disruptive influence of social media. But until the law is changed, I believe we must work with it. And 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.

What is weird about Merritt’s story is that he chose to target me alone for criticism, when my concerns regarding the Jill Meagher case echoed public comments from those prosecuting the case and many legal experts. Among them, one of Australia’s leading media law experts, Mark Polden:
“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,” Polden told 2SER in a report last Friday 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,” he 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?” Polden also told Crikey.

The big picture

The risks are so great, in fact, that following Facebook's refusal to remove potentially prejudicial pages pertaining to the case, Australia's Attorneys General will hold a special meeting on Friday in an effort to consider the implications and the possibilities for law reform.

Yes, the big picture here is the horrendous murder of Jill Meagher and the fascinating but problematic impacts on judicial processes of social media disruption.

Nevertheless, I’m encouraged to see The Australian taking a progressive approach to social media issues, in Merritt's piece at least – it sure beats using defamation law to threaten a journalist who used Twitter to accurately report a speech the Editor-in-Chief wanted no one to hear.

1 comment:

Alex Potter (z3334865) said...

It seems in modern society, political records are written by the media. Given the most people seem disillusioned with politics and know political buzz words but don't know what they mean, what impact do you think social media is having on society's understanding of politics?


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