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Supreme Court 17 February 2011

R v PERISH; R v LAWTON; R v PERISH

[2011] NSWSC 1110

HomicidePublic order & justice offences
CRIMINAL LAW JURISDICTION PRACTICE AND PROCEDURE INTERNET TAKE DOWN ORDERS NON PUBLICATION ORDERS

Citation: R v Perish; R v Lawton; R v Perish [2011] NSWSC 1110
Court: Supreme Court of New South Wales
Date: 17 February 2011
Judge(s): Price J

Background

Three accused persons, Anthony Perish, Andrew Perish, and Matthew Lawton, faced serious criminal charges including murder. A number of online news articles published by major media organisations contained material that the accused argued was prejudicial to the prospect of a fair trial.

The media organisations involved were Nationwide News Pty Limited, News Digital Media Pty Limited, and Fairfax Media Publications Pty Limited. The articles in question appeared on the websites of the Daily Telegraph, the Sydney Morning Herald, The Australian, The Age, news.com.au, and related local news sites, and had been published between 2008 and 2010.

Earlier orders made on 2 and 3 February 2011 had required the removal or non-publication of certain articles. The media organisations applied to have those earlier orders vacated, while the accused sought orders requiring the immediate removal of specific articles from those websites pending the outcome of their respective trials.

  • Whether the ex parte orders made on 2 and 3 February 2011 should be vacated on the application of the media organisations.
  • Whether internet take-down orders should be made requiring the named media organisations to remove specific articles from their websites and refrain from republishing those articles in New South Wales until the conclusion of each accused's trial.
  • Whether broadening the proposed orders risked unintended consequences or uncertainty for the applicants, including scenarios involving third-party extraction and uploading of content.

Decision

Price J dismissed the media organisations' application to vacate the earlier orders, providing reasons consistent with those given the preceding day. The judgment does not reproduce those reasons at length, but the dismissal indicates the court was satisfied the earlier orders were properly made.

The court accepted a submission from counsel for the accused that widening the orders beyond their current terms could create uncertainty, particularly in circumstances where a media organisation might publish content through a subscription arrangement or a third party might independently extract and upload the material. On that basis, the court declined to extend the orders further than their stated terms.

The court then proceeded to make individual take-down orders in relation to each accused. Each order was tailored to the specific articles identified as potentially prejudicial and directed at the particular publisher responsible for that content. The orders were framed to operate only in New South Wales and only until after trial and verdict, or further order of the court.

Orders Made

  • The application by Nationwide News, News Digital Media, and Fairfax Media to vacate the orders of 2 and 3 February 2011 was dismissed.
  • Two specified Daily Telegraph articles (dated 20 January 2009 and 29 January 2009) were ordered removed from dailytelegraph.com.au and not to be published on the internet in New South Wales by Nationwide News until after the verdict in R v Anthony Perish.
  • A specified Sydney Morning Herald article (dated 29 January 2009) was ordered removed from smh.com.au and not to be published on the internet in New South Wales by Fairfax Media until after the verdict in R v Anthony Perish.
  • A specified article from The Australian (dated 21 February 2009) was ordered removed from theaustralian.com.au and not to be published on the internet in New South Wales by Nationwide News until after the verdict in R v Anthony Perish.
  • A specified Age article (dated 4 June 2009) was ordered removed from theage.com.au and not to be published on the internet in New South Wales by Fairfax Media until after the verdict in R v Anthony Perish.
  • A specified Daily Telegraph article (dated 5 February 2009) was ordered removed from news.com.au and not to be published on the internet in New South Wales by News Digital Media until after the verdict in R v Andrew Perish.
  • Two specified Sydney Morning Herald articles (dated 22 January 2009 and 25 May 2008) were ordered removed from smh.com.au and not to be published on the internet in New South Wales by Fairfax Media until after the verdict in R v Andrew Perish.
  • A specified article (dated 5 February 2009) was ordered removed from liverpool-leader.whereilive.com.au and not to be published on the internet in New South Wales by News Digital Media until after the verdict in R v Andrew Perish.
  • A specified article (dated 18 June 2010) was ordered removed from theleader.com.au and not to be published on the internet in New South Wales by Fairfax Media until after the verdict in R v Matthew Lawton.
  • Liberty to apply on short notice was granted in each application.

Key Takeaways

  • The Supreme Court exercised its jurisdiction to make internet take-down orders against named media organisations in order to protect the fair trial rights of accused persons facing serious criminal charges.
  • Orders of this kind were fashioned on an article-by-article, publisher-by-publisher basis, reflecting a careful and targeted approach rather than a broad suppression of coverage.
  • Concerns about unintended consequences informed the scope of the orders: the court declined to widen the terms where doing so might create uncertainty for media organisations, particularly in relation to third-party content distribution arrangements.
  • Each take-down order was limited in geographic reach to New South Wales and was expressly time-limited, operating only until after the trial and verdict in the relevant proceeding or further order.
  • Dismissing the media organisations' application to vacate earlier orders confirmed that the court was satisfied the original orders had been properly made.

Legislation and Cases Referenced

No legislation or cases were cited in the text of this judgment as published.