The Federal Court will no longer upload regular YouTube videos of the high-profile defamation case of war veteran Ben Roberts-Smith, after “persons outside Australia” used them to publish information identifying sensitive witnesses.
- The lengthy trial has regularly heard sensitive evidence from de-identified witnesses
- People who are physically in Sydney can still watch proceedings
- Nine opposed the move, highlighting the importance of open justice
Mr Roberts-Smith is suing The Sydney Morning Herald, The Age and The Canberra Times newspapers over a series of 2018 stories which, he claims, contained false allegations of unlawful killings, bullying and domestic violence.
Much of the trial has involved hearing from former and current Special Air Service Regiment (SAS) soldiers, whose identities cannot be revealed for national security reasons.
In an effort to accommodate open justice while COVID-19 restrictions reduced the capacity of courtrooms, videos showing a limited view of the court during appearances of such “sensitive witnesses” have been published to YouTube on a delayed basis.
This allowed for the editing out of any so-called “inadvertent disclosure” of sensitive information — which has occasionally occurred, usually by soldier witnesses who are required to use pseudonyms when referring to most other witnesses — from a live feed provided to journalists and streamed into another room of Sydney’s Law Courts building.
However, the Youtube videos of sensitive witness evidence will cease after Justice Anthony Besanko heard an application from the Commonwealth in closed court.
A judgment detailing reasons for the decision reveals the Commonwealth became aware “persons outside Australia” were using the videos for “analysis of information from different sources”.
This had then been used to “publish information which identifies, or tends to identify, Sensitive Witnesses”, including names or initials.
Justice Besanko said the effect was to undermine the integrity of court orders prohibiting such information being published.
“Action against a person to correct the situation is made difficult, if not impossible, where the person is located outside of Australia,” he noted.
Mr Roberts-Smith’s legal team supported the application, arguing that anything that made “the possible intimidation of witnesses” easier should be carefully considered.
In opposing the change, publisher Nine Entertainment highlighted the importance of open justice and suggested geo-blocking as a potential solution.
“The difficulty with geo-blocking was identified by the Commonwealth. It can be rendered ineffective by the use of a Virtual Private Network which is a widely commercially-available service,” Justice Besanko said.
While the application was heard in closed court, Mr Roberts-Smith’s barrister, Arthur Moses SC, alluded to a “flagrant breach of the court’s orders” in late April, and requested to discuss the matter in a closed session.
A room in the Law Courts building will be open to the public for a broadcast of the proceedings, subject to capacity constraints.
Justice Besanko ruled the requirements of open justice were satisfied by that provision, without the addition of YouTube videos of sensitive witness evidence.
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