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Rachel Jane Hews Thesis TWITTER TRIALS AND FACEBOOK JURIES: AN ANALYSIS OF THE AUSTRALIAN SUB JUDICE RULE AND THE REGULATION OF PREJUDICIAL PUBLICITY ON SOCIAL MEDIA DURING HIGH-PROFILE CRIMINAL TRIALS Rachel Jane Hews LLB(Hons), BComm(Mgmt), GradDipEd(Senior Years), DipPolicing, Cert IV Training and Assessment Principal Supervisor Associate Professor Nicolas Suzor Associate Supervisor Dr Kylie Pappalardo Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy (PhD) School of Law, Faculty of Law Queensland University of Technology 2019 i Keywords Keywords Citizen journalists, coding, contempt, content analysis, digital age, digital methods, discourse analysis, disinformation, Facebook, freedom of expression, freedom of speech, freedom of the media, Gable Tostee, Gerard Baden-Clay, high-profile criminal trials, homicide, internet, journalism, juries, juror bias, juror impartiality, juror prejudice, jury trials, media law, media manipulation, media regulation, misinformation, murder, news, open justice, prejudicial publicity, qualitative analysis, quantitative analysis, random sampling, regulation, right to a fair trial, social media, social media analysis, social media platforms, sub judice contempt of court, sub judice rule, Tableau, thematic analysis, TrISMA, Twitter. Twitter trials and Facebook juries ii Abstract High-profile criminal trials have long been a source of public spectacle in the media. Historically, both public interest and the right to free speech fuelled the publication of trial-related information. However, due to concerns the publication of potentially prejudicial information may affect an accused’s right to a fair trial, laws were established in 14th Century England to prevent, in part, the use of words to abuse a party to a suit. The modern evolution of this doctrine, the sub judice rule, aimed to prevent professional journalists and media outlets from publishing information that might prejudice a matter before the courts. This thesis aims to provide insight into how the sub judice rule operates in practice since the introduction of the internet and social media. While the law was well established in terms of how it regulated the behaviour of publishers before the internet, there are concerns about the effectiveness of the rule in the digital age. By analysing data from Twitter and Facebook during two high-profile murder trials, I investigate the prevalence of prejudicial publicity on social media and examine how professional journalists and non-journalists talk about criminal trials. I also investigate how social media users show prejudice on social media during high-profile criminal trials. More generally, my analysis provides insight into the types of information empanelled jurors might see, should they be exposed to information about their trial on social media. I found that large proportions of tweets and comments in my samples were potentially prejudicial, including 6% of tweets during the Baden-Clay trial, 17.4% of tweets during the Tostee trial and 62% of comments in my Tostee Facebook sample. There are no comparable studies against which I can compare these results, but as the iii law is concerned with the publication of any prejudicial information, it is fair to conclude that these results are concerning. I found that professional journalists largely comply with the sub judice rule — they report the news and generally do so using professional, objective, impartial language. In contrast, non-journalists were far more likely to post prejudicial information — they discussed or responded to the news in a way that was more commonly emotive, opinionative and biased. In addition to the potential for individual tweets or comments to be prejudicial, I raise concerns about the cumulative effect of large volumes of tweets or comments working collectively in a way that may prejudice jurors. My samples contained a pro-prosecution bias and there was widespread negative sentiment that may be prejudicial. I also found that some posts lacked accuracy or fairness, and others may not have been made in good faith and without malice, both of which may have the potential to prejudice jurors. I conclude that the Australian sub judice rule is not well adapted for regulating prejudicial publicity on social media during high-profile criminal trials. Changes to news distribution, consumption and participation, the affordances of social media platforms, and personalised algorithms may mean jurors are exposed to and potentially influenced by prejudicial publicity in new ways. The law has evolved in a way that is suited to regulating prejudicial information published by mainstream publishers. However, it is not well suited to responding to prejudice caused by multiple prejudicial posts, published by multiple social media users. Future work is needed to understand how jurors might actually be influenced and what approaches to regulation by state or non-state actors are best suited for the age of social media. It may be that social media platforms ought to bear some responsibility for prejudicial posts, but exactly what that would look like in practice is not yet clear. Twitter trials and Facebook juries iv Table of Contents Keywords .................................................................................................................................. i Abstract .................................................................................................................................... ii Table of Contents .................................................................................................................... iv List of Figures and Tables ..................................................................................................... viii Statement of Original Authorship ............................................................................................ x Acknowledgements ................................................................................................................. xi 1 Introduction ....................................................................................................... 1 1.1 Overview of research ..................................................................................................... 1 1.2 Research Questions ........................................................................................................ 2 1.3 Methodology .................................................................................................................. 3 1.3.1 Social media ......................................................................................................... 3 1.3.2 Twitter .................................................................................................................. 7 1.3.3 Facebook .............................................................................................................. 9 1.4 Ethics ............................................................................................................................ 11 1.5 Significance .................................................................................................................. 12 1.6 Terminology ................................................................................................................. 14 1.6.1 Social media ....................................................................................................... 14 1.6.2 Prejudicial publicity ........................................................................................... 14 1.6.3 Facebook public pages, posts and comments .................................................... 15 1.6.4 Twitter ................................................................................................................ 18 1.6.5 Sub judice rule ................................................................................................... 18 1.7 Publication ................................................................................................................... 19 2 Literature Review ........................................................................................... 20 2.1 Overview ...................................................................................................................... 20 2.2 Public interest and conflicting legal rights ................................................................... 20 2.3 Sub judice rule .............................................................................................................. 25 2.4 Age of social media ...................................................................................................... 30 2.4.1 News consumption and participation ................................................................. 31 2.4.2 Experiencing criminal trials via social media .................................................... 34 2.4.3 Law not suited to social media .......................................................................... 36 2.4.4 Internet jurisdiction and the regulation of social media ..................................... 37 2.5 Juries ............................................................................................................................ 40 2.5.1 Jury exposure to prejudicial media .................................................................... 42 2.5.2 Social media, prejudicial publicity and juror impartiality ................................. 46 2.5.3 Efforts to shield jurors from prejudice ..............................................................
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