The true crime genre is currently popular both locally and internationally. While some publications, such as the US podcast “Serial” and the Netflix series “Making a Murderer“, focus on the accused, others focus on the victim’s story.
Understandably, not all victims of crime or their families wish to share their stories. However, some do. Depending on the circumstances, publication of interviews with victims and their families can raise legal issues.
Current Australian legal proceedings
Strict rules may apply to publications when legal proceedings are in progress, and in particular criminal trials. Unlike in the US and some other countries, what can be published during an Australian criminal trial is very limited. The rules are complex, hard to find and in practice inconsistently enforced. However, ignorance is no excuse. Breaches can be punished with criminal penalties, and if a court wishes, it can stop a publication until the proceedings are over. On the other hand, it may be possible to publish material which has been discussed in open court in front of the jury, provided certain guidelines are followed.
The “contempt period” lasts from when a person is arrested and charged until the proceedings are completed. A first step therefore, is to establish whether any current proceedings are on foot, or whether charges could be laid during the publication period. A risk assessment of the publication should then be made.
Suppression orders in coronial hearings, commissions of inquiry and court cases
A suppression order prohibits the publication of material the subject of the order. A court, commission or coroner can make such orders during proceedings. Suppression orders can be limited in time or may continue indefinitely. They may prohibit publication of a person’s identity, particular evidence, or other matters. Another initial step therefore is to check whether there have been or are any proceedings in which a suppression order may have been made.
Restrictions on self-identification of victims
In some circumstances victims of crime are not legally allowed to identify themselves when discussing their cases. For example, in some Australian jurisdictions an adult sexual assault victim does not have the unilateral power to “out” themselves as the subject of a case, even many years later, unless they or the publisher obtain a court order. Similar restrictions can apply on interviewees who have been child witnesses in court proceedings, and in other circumstances. Going back to court to obtain an order can be time consuming, expensive and complex and is a decision that should be made early on in the research stage of the publication.
True crime stories can raise significant defamation issues. Defamation proceedings can be brought by living individuals and in some cases, other entities, who claim that their reputation is damaged by the publication. For example, where the publication will discuss potential suspects in an unsolved case, care must be taken not to imply guilt if this cannot be proven to legal standards. Likewise, victims may be unhappy with an investigation, or may hold particular persons to blame for what has happened. This can be particularly difficult where persons who are potentially defamed do not wish to be interviewed. Care needs to be taken to ensure that the victim’s story can be told without significant risk of a defamation claim by other persons who are mentioned.
Access to evidence
Evidence given in court or coronial proceedings can be valuable resources for use in true crime publications. Such evidence is useful for fact checking purposes. It can also in some circumstances be “protected” from the usual risks of defamation proceedings. However, seeking access to evidence can be time consuming, and access is not guaranteed. Some evidence, such as police interview recordings in some jurisdictions, cannot be published, even years later, except with a court order. An initial step would be to review any access guidelines on the website of the relevant court or authority. Having the support of the victim’s family in the application is often a relevant, but not determinative, consideration.
This article is general and non-comprehensive. It is not legal advice. To discuss your project, please contact me for a free initial consultation and quote.