On Thursday, Justice Kellam of the Supreme Court of Victoria delivered judgment in Australian Football League & Anor v The Age Company Ltd & Ors [2006] VSC 308. Justice Kellam held that he would grant the Australian Football League (AFL) and the Australian Football League Players’ Association an injunction to restrain the defendants, all of whom were publishers of newspapers in Australia, from publishing or otherwise disseminating any material tending to identify any AFL player who has tested positive or who is deemed to have tested positive under the AFL Illicit Drugs Policy. In addition, Justice Kellam indicated he would issue a declaration that the identity of any AFL player who has tested positive under the AFL Illicit Drugs Policy is confidential information.
In the judgment, Justice Kellam identified the issue at [35]-[36] in the following way:
Information will be confidential only if it is not "public property and public knowledge". Put another way, information will not have the necessary quality of confidence about it if it is "public knowledge, commonly known, publicly known, well-known, public property ... or common knowledge".
The issue before me is whether the information the subject of confidentiality, has received sufficient publicity to effectively destroy the purpose of confidentiality, and thus to make it pointless on the part of the Court to restrain the further publication of confidential information.
The publicity at issue consisted of the folllowing (see [18]-[34]):
The general background to the dissemination is that on 10 March 2006, one Simon Tidy who purported to be employed by ASDA, was interviewed on Melbourne Radio Station 3AW about an assertion allegedly made by ASDA that 15 AFL players had, over the time of the IDP, tested positive to illicit drugs. He, however, did not name any player. Nevertheless, his comments promoted discussion in newspapers and elsewhere about the matter. From 10 March 2006 up until 15 March 2006 when Hollingworth J made restraining orders against the defendants in proceeding No. 5184 of 2006, (and indeed thereafter) there were four sources of dissemination of the confidential information.
First, discussion fora on various internet websites commenced to be used by a number of anonymous contributors, whereby speculation, rumour and general discussion as to the possible identity of players took place.
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Secondly, on 16 March 2006 the Sydney Morning Herald newspaper prepared an electronic version of an article "Reluctance to name is AFL’s shame" which referred to the named players. That article was removed by the newspaper before publication but an electronic copy was forwarded to Media Monitors Pty Ltd who made the article available to various of its government customers between 5.42am and 10.20am on 16 March 2006 either through a Media portal web site or in hard copy.
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Thirdly, in the course of a Fox pay TV program broadcast on 6 April 2006 and known as "Fox Footy", a telephone call made to the program hosts on air named a player as being one of the named players. The hosts of the program entered into no discussion about the matter.
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Fourthly, there is evidence that Mr Brendan Gale, the chief executive of the second defendant, discussed the name of one of the named players with the president of the football club of which that player is a member and, furthermore, that the chief executive or one of his staff discussed the matter with one or more of the parents and managers of the named players.
Justice Kellam reached this conclusion at [52]-[56] as to whether or not the confidential information is in the public domain:
The strongest argument as to the information being in the public domain is not that revealed by the above three possible sources of the release of the confidential information, being the Sydney Morning Herald, Fox Footy and inside the so-called "AFL family". Each of those sources disseminated information to a limited audience. There has been no dissemination to the public at large, being the readers of national newspapers, or the viewers of free to air television or by other mass media outlets. In my view, the strongest argument relates to the information referred to in the various internet postings, or alternatively, that in conjunction with the above three possible sources of release of confidential information.
The nature of the information appearing on the various internet sites referred to by Mr Poulton in his affidavit of 15 May 2006 bears some consideration. An analysis of the exhibits produced by Mr Poulton does show that the websites in question over the period of March and April of 2006 contain a large number of references to the issue of drug testing by the AFL. However, much of what is placed upon the websites referred to by Mr Poulton, is speculation. For example, Exhibit AFL1 names three players about whom there is no suggestion before me of any positive test under the IDP. Some of the postings express the fact that they are "surmise". There is surmise as to the club to which players who may have tested positive belong. One posting states, "Only a guess based on which paper the report came from". Exhibit AFL3 contains similar speculation by those posting the entries. Exhibit AFL4 contains a discussion about trading certain players at the end of the year. Some correspondents appear to treat the discussion as a genuine discussion about trading players. Others treat the discussion thread as an opportunity to speculate about who may have tested positive. Assertions are made to the effect that "these are rumoured names". Likewise, Exhibit AFL5, which refers to another website, contains statements from correspondents such as, "I hope like hell it is (player X)" and, "Nothing like a bit of gossip". Exhibit AFL10 contains the comment: "The whole point of being on this site is having the freedom to post whatever nonsense we feel like". Other of the exhibits to which Mr Poulton referred reveal similar sentiments to the effect that the information is gossip and speculation. On the other hand, there are several positive assertions as to the identity of the players who tested positive, but by an unnamed person or persons using a pseudonym. The question is whether such internet postings have put the confidential information into the public domain.
As stated above, Barrett J in EPP v Levy, said in the circumstances of the case before him that he regarded "... everything which is accessible through resort to the internet as being in the public domain". However, it should be noted that Barrett J was referring to a web site operated by a commercial entity which permitted members of a buying group to place the particulars of their businesses upon the web site. The viewer of such a web site would be entitled to treat the appearance of such particulars on the web site as being information of at least some veracity and authority. Likewise, the reader of a newspaper, or the viewer of a television station is entitled to treat a news report appearing therein as having at least some veracity and accountability. Whilst it is true that this might vary according to the nature of the news media publishing the report, a reader or viewer knows that some entity, be it the reporter or publisher of a newspaper or in the case of a radio or television station, the speaker, a producer or corporate owner is identifiable and accountable. For instance, the average member of the public is aware of the fact that a newspaper or television or radio station may be subject to the laws of defamation if it published wrongful information without good cause. No doubt the public is aware that other processes such as the control exercised by the Australian Press Council are applicable. The public regards information published by the print, television and radio media as being generally credible.
Can it be said, however, that a "discussion forum" which enables opinions, gossip, trivia, rumour and speculation to be published as an assertion of fact by anonymous contributors places the information the subject of such discussion, into the public domain? There can be little doubt that, as the High Court in Dow Jones v Gutnick observed, the internet throws up many challenges for established principles of common law, but that does not mean that it can be a "law free zone". The fact is that anyone, be it a disgruntled employee, a journalist, or anyone else interested in propagating what might otherwise be confidential information can put information upon a discussion forum under an assumed name. Indeed, the lack of accountability is such that one person can place such information upon a discussion forum, or for that matter on numerous discussion fora, in many different names. If speculation, gossip or even assertion from an anonymous source, thus being incapable of being verified or in any way held accountable, is to be regarded as the putting of information in the public domain, then the opportunity for the unethical, and the malicious, to breach confidentiality and then claim that there is no confidentiality is unrestrained. For example, an unethical intending publisher could, without having access to confidential information, speculate by use of an assumed name, as to what might be confidential. This speculation could be placed on a number of discussion fora under a number of pseudonyms and asserted to be fact. Could it then be asserted, as here, that the fact that the material has been the subject of assertion in "chat rooms" means that confidentiality is lost?
In my view, the fact that such speculative gossip, innuendo and assertion by unknown persons has been placed on the web sites of various discussion fora does not make confidential material lose its confidential nature. Obviously there are many users of the internet and an unknown, but no doubt significant, number of users of such web sites as those referred to above might well have seen the names to which anonymous persons have referred in their postings. However, it is still in the realm of speculation. That is a vastly different proposition from the circumstances of publication of material by a newspaper, television station or other source of dissemination of news and other material such as radio or authorised web sites conducted by such sources. Those sources are accountable for the information they publish and are, to an extent at least, trusted by the public to report material to that public accurately. On the evidence before me the public, and particularly that part of the public who use internet chat rooms have no such expectation of authenticity, veracity or otherwise of the information posted on such websites.
To me this seems be a bizarre conclusion. This view was apparently shared by Crikey editor Misha Ketchell on Thursday:
Do people really believe what they read on this newfangled thingamybob, this internet whatsit?
Not according to 59-year-old Victorian Supreme Court judge Murray Kellam. Yesterday Justice Kellam decided to suppress the names of three AFL players who had tested positive for illegal drugs -- even though the names have appeared on several websites and discussion rooms ...
Having recently emerged from our own tangle with the law – after the NSW Supreme Court issued an injunction to stop republication of the Llewellyn affidavit after it appeared in Crikey -- it’s hard not be dismayed at this latest attempt by the courts to grapple with online publishing.
A half-hour search of the three names this morning revealed half a dozen websites where this information still exists. And that’s a big problem. If judges insist on seeing it as their role to put the genie back in the bottle once information has been published online, they’re taking on a battle they can't win, and in the meantime they’re signing us up for a form of information apartheid in which only some people are kept in the dark.
Suppression of information in this way just doesn’t make sense -- there are legal remedies for publishing material that is defamatory and causes damage in other ways. So why are judges so fond of controlling the media?
Justice Kellam’s decision on the AFL players is based on a jaundiced conception of the public interest – that satisfying mere public “curiosity” isn’t in the public interest. The idea deserves a tick for its potential to spare us from pretty much everything ever published in New Idea, but it’s also fundamentally wrong-headed.
Accurate information is a form of oxygen needed for society to flourish. Its dissemination is an absolute good, even where in the short term it might cause some pain, and even where it can seem at times as though our interest in the information is merely prurient.
In deciding that it’s more important to spare three public figures from admitting to what they did than telling the public the truth Justice Kellam has made a mistake. And all he’s managed to do is guarantee that the three names will be a hot topic of discussion in chat rooms for a long while yet.
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