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Australia’s Pell Gag Order Applies To All Media Globally – They Should Know This

That Cardinal Pell has been convicted of child abuse we now all know. We didn’t know that he had been convicted in December as there was a gag order on the reporting of that trial until a second, later, trial was completed. All of which is so far so normal – you can’t report on one in a chain of trials until they’re all done for fear of prejudicing the later trials.

This gets a little more complex when we start to talk about a gag order applying in one legal jurisdiction and yet we’ve the global media reporting on it. Amazingly, it’s the New York Times that got the law right here. And quite a large amount of that global media that didn’t.

The point being that it’s not where an article is published, not where the servers are, the editors, it’s where the reader is that matters. This has already been tested, Dow Jones lost a case on these grounds well more than a decade back. It’s where the reader is that matters, not where the “publishing” takes place.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]Dozens of journalists and media outlets that reported on the sex abuse conviction of the world’s most high-ranking Catholic cleric ever charged with such crimes could face fines or jail time for breaching a gag order.[/perfectpullquote]

They could indeed.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]In December, a jury convicted Australian Cardinal George Pell, 77, of sexually abusing two 13-year-old choirboys decades ago. But before the verdict was handed down, Judge Peter Kidd in Melbourne’s County Court of Victoria forbade details of the trial to be published, out of concern that it could influence the jury in a second trial awaiting Pell.[/perfectpullquote]

Given the circumstances that’s not unusual at all. It’s how Tommy Robinson got shouted at for contempt of court – he was reporting on one in a chain of trials when there was an order not to for fear of prejudicing those later trials.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]International outlets such as the New York Times heeded the judge’s order by refraining from publishing Pell’s case online and didn’t deliver one day’s print edition to Australian readers. “Two Times journalists who have been covering the case would be at risk,” the newspaper reported, adding that journalists charged in contempt of court could face up to five years in prison.[/perfectpullquote]

That’s absolutely the right thing to have done.

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]The Washington Post, and publications without staff in Australia, chose to report on Pell’s conviction. They saw their work spread on social media.[/perfectpullquote]

That’s not.

It comes down to what is the place of publication? And there are two strands here, both leading to the same conclusion. The first is as it applies to physical books and newspapers. Something published in the US, OK, that’s fine. But if copies of that make it to London then English libel law comes into play. Even just 1 copy – there was a large case over perhaps a score of copies – arriving in the jurisdiction means that it’s subject to the libel laws of that jurisdiction.

Then there’s something more specific to internet publishing. The construct is – hey, this might sound silly but it’s what it is – is that the act of reading something on the internet is the publishing of it. Before my browser went to the piece there was one copy that existed on the server, that server sitting wherever. Now that I’m reading it there are two copies, one on the server, another in my browser. My browser is inside the jurisdiction – the piece has been published in the jurisdiction.

Dow Jones lost a case on this – or at least settled. They’d written something uncomplimentary about an Australian. That was read on the internet in Australia. That put that piece under the Australian libel laws. The piece was fine by US libel laws, not by those of Oz, Dow Jones got dinged. That the one known person who read the piece in Australia was the guy claiming to have been libelled made no difference.

So, here, reports about that first Pell trial which are then read in Australia during the existence of the gag order breach that gag order. That’s just the way the law works these days.

Which is interesting really. What it means is that everything published on the internet is at least theoretically subject to the laws of everywhere. For it is subject to the laws in place wherever the reader is when they read it.

No, really, this is how it works. People are entirely at liberty to trade Nazi memorabilia on Yahoo inside the US. The bits of Yahoo they do so on cannot be seen in Germany. Because Germany has laws against the trading of Nazi memorabilia.

Assuming that someone in Pyongyang reads a piece then whatever that piece says about Kim Young ‘Un is subject to the laws of North Korea. What fun, eh?

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2 years ago

The Washington Post, and publications without staff in Australia, chose to report on Pell’s conviction. They saw their work spread on social media. That’s not. It comes down to what is the place of publication? I think you’re getting confused here. In the UK – and Australia – that is the law. In the US – where the NYT is, its not. In the US, where you publish is where you publish – not where your readers are. Its why the US mostly won’t enforce UK libel orders – because they are generally of the ‘it was read in the… Read more »

2 years ago
Reply to  Agammamon

Well, yes. Except that gag law is pretty new, as a result of the Ehrenreich case. And I think it only applies to libel cases.

And sure, enforcement will be difficult. But as you say, to those with staff or assets in the jurisdiction…..

Hector Drummond, vile novelist

This is a ‘law’ that needs to be ignored as much as possible, and undermined constantly.

2 years ago

But that ignores the benefit of the gag law; that a second accused in a subsequent trial cannot avoid justice by claiming that the publicity around the first verdict made it impossible for him/her to obtain a fair trial.

Hector Drummond, vile novelist
Reply to  dcardno

I don’t mean in your own country. And maybe you’d do it for an ally like Australia in this sort of case. But generally we can’t have other countries deciding that an online publication constitutes libel in their country just because someone in that country downloaded it.

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