Video settings

Please Log in to update your video settings

Video will begin in 5 seconds.

Video settings

Please Log in to update your video settings

Trial by social media

The law needs to catch-up with social media, says director of the UNSW Journalism and Media Research Centre, Professor Catharine Lumby.

PT2M49S http://www.canberratimes.com.au/action/externalEmbeddedPlayer?id=d-22ccj 620 349

In the Herald's photo of Thomas Kelly's alleged killer, his face is hidden under a blanket.

You might not think that you are in the same position as the editor of The Sydney Morning Herald, but the court might think otherwise 

But pictures of 18-year-old Kieran Loveridge are plastered all over Facebook and Twitter profiles, along with accusations of "monster" and "murderer".

In court ... Kieran Loveridge is escorted to Burwood Court.

In court ... Kieran Loveridge is escorted to Burwood Court. Photo: Mick Tsikas

It's like a trial by social media, a situation legal experts say could pose serious risks to criminal cases and the right to a fair trial.

And, although so far unheard of in Australia, individual social media users could be held legally responsible for their comments.

Associate Professor Alex Steel, from the University of NSW's law school, said one of the problems with social media was people publishing comments without thinking of the consequences.

Images of Thomas Kelly. He is the teenage victim of unprovoked Kings Cross assault who died in hospital last night.  Photo supplied NSW Police Media  thomas kelly.JPG

Teenage victim ... Thomas Kelly.

"A person has got a right to a presumption of innocence," Dr Steel said.

"There's not a 100 per cent success rate with police charging; they may have got the wrong person, anything is possible.

"People shouldn't rush to judgment. They should try to respect the fact that there's a process to determine what the truth is and not jump to judgment without any understanding of the full facts."

Once a matter is before court it becomes "sub judice", which alters the way it can be reported, Associate Professor David Rolph from Sydney University's law faculty said.

"Calling someone a murderer before they've actually been found guilty by a jury is deeply problematic," Dr Rolph said.

"Journalists for institutional media are very well aware of their obligations and they're usually the sorts of people who will get prosecuted for contempt of court if they do something wrong.

"But now that people can publish through all forms of social media, the same legal principles still apply but people are not aware.

"It's a somewhat untested space as to whether someone tweeting something is going to cause a substantial risk of serious interference to someone's right to a fair trial."

Dr Steel said anything published online could be treated the same way as something published by a news organisation.

"You might not think that you are in the same position as the editor of The Sydney Morning Herald, but the court might think otherwise."

Dr Rolph said the individual tweeter was the most obvious person who could be held liable, but the more complicated issue was whether Twitter and Facebook could be considered publishers.

"That's a really difficult issue that's before the courts at the moment, not only in Australia but in other countries around the world.

"Different courts throughout the world are taking slightly different views about these sorts of things."

In Australia tweets have become the basis for defamation cases.

Liberal Party pollsters Lynton Crosby and Mark Textor are suing federal Labor MP Mike Kelly for defamation over a tweet in which he accused their campaign consulting firm of push polling.

Joshua Meggitt, the Melbourne man wrongly named by writer and television identity Marieke Hardy as the author of a hate blog dedicated to her, is now suing Twitter.

In the US, Michiel Oakes, a man convicted of the murder of celebrity dog trainer Mark Stover, has launched an appeal because a 19-year-old juror was tweeting throughout the trial, the Seattle Weekly reported.

In Britain last year, Joanne Fraill became the first juror to be prosecuted for contempt of court for using the internet and was jailed for eight months.

Fraill used Facebook to communicate with a defendant who had already been acquitted, The Guardian reported.