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We couldn't have told you this, but Wikipedia was censored

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By Hawkeye7
Cardinal George Pell in 2012

A high official of an unnamed religious organisation had a negative result in a court proceeding involving some young men in a land known as Downunder or Oz.

No, The Signpost is not practising how to say as little as possible in as many words as possible, but several Australian news sources had to invent even more ridiculous text and headlines to try to inform their readers of major news they were blocked from publishing. Wikipedia was cited, but not charged, for contempt of an Australian court's gag order. Thirty-six non-Wikipedian individuals and organisations were actually charged.

Since February, we have been free to say that, on 11 December 2018, a jury unanimously found George Pell guilty of raping and sexually abusing two 13-year-old boys in the 1990s. This was big news, not just in Australia but internationally; sexual abuse of women and children by Catholic clergy has been a scandal on four continents, and Pell is a cardinal, one of the highest-ranking bishops in the church. And not just any cardinal; at the time of his conviction, Pell was a member of the Council of Cardinal Advisers, and the Prefect of the Secretariat for the Economy, a post akin to the Vatican's treasurer. He was not just the senior Catholic in Australia, but one of the highest-ranking in the world.

Pell was still facing charges in another case involving teenage boys, so to avoid the jury in that second case being influenced by the verdict in the first, Victorian County Court chief judge Peter Kidd placed a non-publication order on all of the evidence and the verdict in Pell's trial. The use of these orders is more common in the state of Victoria than the rest of Australia; some 443 were issued there in 2018, compared with 456 in the rest of the country. The suppression order applied "in all Australian states and territories" and "on any website or other electronic or broadcast format accessible within Australia". This clearly included Wikipedia.

In Australia there is no constitutional right to free speech. The High Court ruled that there is a right to political free speech (although it recently ruled that it is not a personal right, and that government workers can be fired for anonymously criticising government policies online), but other forms of speech are not covered. In particular, commercial speech is not covered. Even countries that do have sweeping freedom of speech provisions often have protections for a defendant's right to a fair trial that can override the right to free speech; courts worldwide are attached to the fair-trial principle.

The court's gag order left news media organisations understandably frustrated. Some international media organisations, including The Washington Post and The Daily Beast, went ahead and published the story online, regardless. Neither had reporters on the scene.

On Wikipedia, an IP user in Canada made an edit of 12 December changing Pell's description to add "and convicted sex offender", with a reference to the Daily Beast article. This sparked a flurry of edits, and within four hours the article was protected for "violations of the biographies of living persons policy". There was a weird discussion on the WikiProject Australia talk page in a section titled "Article about a topic covered by a suppression order" that left some people scratching their heads wondering what those in the know were talking about. Wikimedia Legal was informed. We left an audit trail for prosecutors to follow if they wished.

Editing was not restricted to the English-language Wikipedia. The French was updated on 17 December, noting that a jury had found the cardinal guilty. This edit was reverted as "non fiable" (unreliable). Not so on the German language Wikipedia, where the edit remained. That the story was up on Wikipedia, at least for a while, was noted by the court, and by Pell's defence lawyers (hoping perhaps to get the second trial thrown out on those grounds).

Some media organisations, including The Sydney Morning Herald and The Australian, responded by reporting on the gag order, saying that there was a big story about a prominent Australian convicted of a heinous crime, and that they couldn't report on it. The Melbourne Herald Sun ran a black front page with the headline "CENSORED" in bold type. The court was not amused by this either. At the time, I simply googled "big story about a prominent Australian convicted of a heinous crime" and up it came, complete with links to The Washington Post and Wikipedia. The George Pell article's talk page erupted with the heading "Conviction of Sexual Offences Against Children and Suppression Order in Victorian County Court".

As already noted, our BLP rules were not violated, as Pell was indeed convicted of a crime. Nor was there a problem with the sources, which were reliable and had indeed correctly reported the case. But "using the services in a manner that is inconsistent with applicable law" is a violation of our terms of use. So Wikipedians posting about the case could, theoretically, have been facing a ban from the site.

Fortunately, although Wikipedia was among the organisations cited for contempt, neither Wikimedia nor individual editors were charged. Some 23 individuals and 13 media organisations were not so lucky. Organisations included the The Herald and Weekly Times, Fairfax Media and Nine Entertainment. Individuals included Deborah Knight, Michael Bachelard and Ray Hadley

The second case never went ahead, and the gag order was lifted on 26 February 2019. All the while, the English Wikipedia had the story on the article page. With the official news release, the article recorded 150,249 page views in February and 231,295 in March 2019, more than double the 104,231 in December 2018. So while suppression orders are easily circumvented in the internet age, they are not completely ineffective.

Pell lost his appeal against his conviction in August 2019. His legal team is currently preparing an appeal to the High Court of Australia. If unsuccessful, he is likely to be transferred to the Hopkins Correctional Centre in Ararat, Victoria, where many paedophile priests are currently held.

What can we take away from this? It isn't the first time something like this has happened, and it won't be the last. Recall the case of Rémi Mathis, who was compelled to delete a Wikipedia article under threat of detention and criminal charges in 2013. We cannot assume that the law will not come after Wikipedians as individuals or WMF as an organisation. There are signs around the world of an impending crackdown on social media sites, given the recent behaviour of Facebook and Twitter.

We need to heed this as a wake-up call and put appropriate procedures and guidelines in place.

S
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  • Censorship only has an obvious source if it fails. If it succeeds, you'll never know it happened at all. Even if it results in fewer people knowing about something than otherwise would have, it can be stated to have successfully suppressed knowledge of the censorship occurring at all. (Hence, probably, why the judge was irritated about the "Censored" page in the newspaper—it wasn't just that the judge wanted the censorship to occur, but for people not to know it was occurring. After all, a completely black page certainly did not publish any details the court order prohibited.) Seraphimblade Talk to me 04:42, 31 August 2019 (UTC)[reply]
  • I consider censorship as flowing from the state. I live in the U.S., though in the past I have worked many countries, including Poland during the suppression of Solidarność. Disinformation I think is much more dangerous—see its use in the U.S., India, and Britain... to divide and demonize. Corrupt information is more dangerous than no data. Anyway, I agree with your statement about censorship—in trying for a succinct statement, I assumed a single source for censorship, and perhaps oversimplified. — Neonorange (Phil) 05:41, 31 August 2019 (UTC)[reply]

"Using the services in a manner that is inconsistent with applicable law" is a violation of our terms of use. This presupposes that Australian courts have anything to say about what non-Australian contributors do on a US-hosted server. They do not at all, IMHO. ☆ Bri (talk) 05:11, 31 August 2019 (UTC)[reply]

The notion that none of the Wikipedians who made edits were Australians is not likely to stand up to any scrutiny. Hawkeye7 (discuss) 06:33, 31 August 2019 (UTC)[reply]
That's great, but what's Australia going to do about it, since Wikipedia is hosted here in the US? -- Rockstonetalk to me! 06:48, 31 August 2019 (UTC)[reply]
Publication of a web page is deemed to occur at the place of comprehension, rather than the place where the data is stored. If a page is viewed in Australia (as per a number of other jurisdictions), it can be considered to have been published in Australia in regard to Australian law, even if it is hosted in the US. - Bilby (talk) 06:50, 31 August 2019 (UTC)[reply]
My understanding of what could happen (based on enforcement of foreign judgments) is that an Australian court could fine Wikimedia, and then take them to court in California to recover the money. Hawkeye7 (discuss) 08:48, 31 August 2019 (UTC)[reply]
Hawkeye7, I don't know of any particular case law on the matter (though now I'm rather interested, and if I have time today I might take a look), but I'd note the SPEECH Act in particular, which was passed particularly to forbid US courts from enforcing foreign libel judgments. Foreign judgments are not enforced if they are "repugnant" to the public policy of the United States, and I think it would be pretty repugnant for a foreign court to be able to use the US courts to restrict Americans' free speech and free press rights in a way a US court or law would be forbidden to do. Arguably, since those are constitutional rights, the court would even be prohibited from enforcing those foreign judgments, since all judgments by US courts are subject to constitutional review no matter why they were originally made. If a ruling by a US court would abrogate such a right, it will be overturned. Basically, courts can't end-run the First Amendment like that. (And before anyone pulls out the "But they had to specifically prohibit libel enforcement by statute!", yes, but libel is explicitly not protected under the First Amendment. Reporting on crime and criminals unquestionably is.) Seraphimblade Talk to me 11:41, 31 August 2019 (UTC)[reply]
Note that the WMF also has assets outside the United States. According to m:Wikimedia servers, there are servers in the Netherlands and Singapore that you could try to seize by suing in the Netherlands or Singapore. You would have to look at the laws of all countries where the WMF has assets in case one of those would recognise the Australian court ruling. Also, the WMF might be prevented from ever having assets in Australia unless the WMF pays the fines. --Stefan2 (talk) 13:49, 31 August 2019 (UTC)[reply]
If Australia has laws requiring suppression of facts, I would certainly say it would be no loss for the WMF to be prevented from having assets there to begin with. Seraphimblade Talk to me 14:29, 31 August 2019 (UTC)[reply]
What exactly is applicable law? Is that the laws of all countries in the entire world? Let's say, for example, that some "random" country were to decide that you can't write about the Fourth of June Incident, would we then be prevented from writing articles about that subject due to the vague wording applicable law in the terms of use? --Stefan2 (talk) 13:49, 31 August 2019 (UTC)[reply]
"Applicable" is a combination of "enforceable" – i.e. United States law – and "voluntarily upheld" foreign law that the WMF chooses to abide by, including judicial decrees. Given the repugnancy of the Australian gag order to U.S. First Amendment rights, noted above by Seraphimblade and others, I highly doubt the WMF would voluntarily abide by anything related to it. Given their public position on Turkey's censorship of Wikipedia, it would be a strange thing indeed if they did so. ☆ Bri (talk) 15:08, 31 August 2019 (UTC)[reply]
  • Tony1, actually the Singpost article cited an article asking exactly that question. It basically raised the concern that when a court says "I demand that the tide not come in!", the court is lowering respect for itself by making a demand it can't ever actually enforce. (And of course, in this case, the restriction actually resulted in Streisanding, so there's that concern too.) Basically, they're going to have to come up with other ways of ensuring a fair trial besides censorship. Seraphimblade Talk to me 14:49, 31 August 2019 (UTC)[reply]
  • Well, Vami IV, I'm not sure I would agree that no court should control the digital environment in any way whatsoever. If you're trying to use the digital environment to hire someone to kill me, I would rather prefer that law enforcement be able to stop you from doing that. But certainly simple statements of fact should not be censored, whether or not they are convenient for any given government. Seraphimblade Talk to me 20:22, 31 August 2019 (UTC)[reply]
The problem is that "screaming from the rooftops" is what may cause a mistrial to be declared, potentially allowing such people to walk. The supression orders are generally used to ensure that the jury trial is fair, rather than to protect the accused - if media coverage prevents a fair jury trial the accused may be deemed to be unable to recieve one, which may affect the outcome. Bilby (talk) 08:23, 1 September 2019 (UTC)[reply]
  • @Vami IV: - Assuming that you're pro fair trial, but that you think the internet should no (or very limited) free speech limitations, how would you ensure accused receive fair trials in similar (but potentially less clear-cut) situations? Nosebagbear (talk) 15:27, 2 September 2019 (UTC)[reply]
Retracting this. I was just in a pique at more government-led fuckery with Wikipedia and wanted to scream about it. –♠Vami_IV†♠ 15:53, 2 September 2019 (UTC)[reply]
  • I made a discussion proposal. Not really sure it's worth keeping a category of just one person. -- Rockstonetalk to me! 23:16, 31 August 2019 (UTC)[reply]
  • I'm sure there will be more added over time.--Auric talk 11:12, 6 September 2019 (UTC)[reply]

Thanks for an interesting topic! I'd suggest a category for Category:Wikipedia article subject to censorship and banner template. Banner could be used for articles currently affected, and category, for articles affected in the past. --Piotr Konieczny aka Prokonsul Piotrus| reply here 02:56, 1 September 2019 (UTC)[reply]

American sovereignty is impinged when another country, in this case, Australia, dictates what an American entity can and cannot publish. The fact that Australia does not have the same free speech protections as America does not afford them the right to issue, let alone enforce restrictions on content on American servers with an American non-profit. The default position (albeit from an American perspective) is freedom of speech, with limitations meted out cautiously and with great consideration, not merely as a matter of convenience or even offense. That isn't the case here. Their understandable concerns of finding an untainted jury should be addressed in voir dire, and sequestering the chosen jury, as is done in American courts when necessary.
And what kind of precedent does such censorship set? While I hate the term slippery slope, it does fit here. What if Pakistan doesn't like articles about Al Qaeda? What if Saudi Arabia doesn't like articles about their ruling family killing American journalists in Turkey? And is the right to censorship reciprocal? Does America get to rule and dictate what can and cannot be disseminated in other countries on their servers? Positively Pandy (talk) 16:18, 2 September 2019 (UTC)[reply]
@Positively Pandy: Yes, other countries do have the right to impose their legal standards on an entirely American entity. If you do not believe me, go read the GDPR article. Poveglia (talk) 07:31, 8 September 2019 (UTC)[reply]
  • @Dlthewave: Ehm, this was done to ensure a fair trial. Turkey and China have a lot of censorship for other reasons... The situation is completely different and not even comparable. Poveglia (talk) 07:36, 8 September 2019 (UTC)[reply]
Bahnfrend, I actually went and read the full decision from Sheppard v. Maxwell (and I was the one who referred to the SPEECH Act, but I also went into detail why other such restrictions would also be prohibited under US law, so you quite mischaracterized and took out of context what I said). Did you actually read the Supreme Court decision? In it, they do list some pretty shocking things, such as Sheppard's chief counsel being "forcibly removed" from proceedings by a participant, and media being allowed so close to the defendant in the courtroom that he could not privately confer with his attorney, as well as the contact information for potential jurors being publicly released prior to the trial, allowing people to contact and harass them. Obviously, those things kept Sheppard from having anything that could be in any way considered a fair trial, and the Supreme Court was correct in its finding that he did not receive one. Such practices are no longer allowed in the US. But if you read section (c) of paragraph 1 in the holdings of the actual SCOTUS opinion ([1]), you'll notice that while the Supreme Court states several things the trial court should have done and failed to do, issuing a blanket gag order on nationwide media was not one of those recommendations. Presumably, the SCOTUS did not consider such a practice to be an acceptable one. In the US, prior restraint is considered to almost automatically be unconstitutional. The WMF should not enforce any foreign censorship laws or orders, period. I'm sure Chinese or Turkish censors will also tell you that their motives are good and they just want to help, and I suspect that they actually believe that. Almost no one is a cackling villain intent on harm. I suspect they genuinely believe they're doing a good thing, as does the Australian judge issuing similar orders. But censorship still is inherently harmful. When people are prohibited to know facts, they cannot make informed decisions. Wikipedia, and Wikimedia, should never assist in the suppression of verifiable and truthful information, even if that information is inconvenient to someone. Seraphimblade Talk to me 15:38, 4 September 2019 (UTC)[reply]
As I noted in United States v. Progressive, Inc., prior restraint is not unconstitutional in the United States, only in certain cases. The World Press Freedom Index maintained by Reporters Without Borders rates Australia at 21st and the United States at 48th. [2] Both could do more to improve their ratings. Hawkeye7 (discuss) 00:39, 5 September 2019 (UTC)[reply]
Seraphimblade, I agree with Hawkeye7. The Wikipedia article on Nebraska Press Ass'n v. Stuart (1976) says that the Supreme Court decided in that case that "... it was inappropriate to bar media reporting on a criminal case prior to the trial itself, except in matters where a "clear and present danger" existed that would impede the process of a fair trial." [my emphasis] In the present case, there was a clear and present danger that media reporting on Cardinal Pell's convictions would impede the process of a fair trial of the then pending further charges against him. Under those circumstances, the restriction imposed by the gag order cannot be said to have been inherently harmful. As I indicated in my previous post, the right to a fair trial is recognised by the Universal Declaration of Human Rights, and the trial judge's gag order must be viewed in that context, both in Australia and elsewhere, including the United States. Bahnfrend (talk) 01:47, 5 September 2019 (UTC)[reply]
As to US v. Progressive, as brought up by Hawkeye7, I'd actually thought about bringing that one up myself. If you read the opinions and history there, several judges said that cases of nuclear secrets are about the only place they'd even consider upholding prior restraints—and at the end of the day, those restraints were even overturned there, and Progressive was allowed to publish its story. So far as the example by Bahnfrend, of Nebraska Press Ass'n v. Stuart, the courts noted that there were other measures available to ensure a fair trial, such as careful jury questioning to ensure that jurors can and will remain impartial. Presumably, Australian courts are capable of doing that as well. Both of those are cases where prior restraint was considered and rejected by US courts, and one was specifically one with implications on the right of fair trial. US courts are generally highly allergic to prior restraint or censorship of any kind, and that's especially true when it comes to censorship regarding political or legal processes. The right of the public to know what government actions are being taken and to discuss them or disagree with them is considered core political speech, and that receives the absolute highest degree of protection. And the right to do so in a timely way when protest might be effective, rather than after the moment of controversy has passed, is always considered a core part of that right. Or basically, don't expect US cooperation with Australian gag orders. Seraphimblade Talk to me 05:21, 5 September 2019 (UTC)[reply]
US v. Progressive is hardly a useful precedent. The case was in a first instance District Court, not the Supreme Court, and was never finally decided, because eventually the government dropped its claim. As for Nebraska Press, none of the alternatives suggested in that case would have been effective in the present case. Cardinal Pell was not a relative unknown being prosecuted in a minor court in a small town, as in that case. On the contrary, he is very well known in Victoria, nationally, and internationally, as one of the most powerful figures in the Roman Catholic Church, his trial was being covered by international media, and he was being prosecuted against the background of very heated controversy, in Australia and in many other countries, over a long history of persistent child abuse by Catholic clergy worldwide. Bahnfrend (talk) 06:00, 5 September 2019 (UTC)[reply]
The United States has a written constitution. This constitution has been expanded by amendments. The first ten amendments are known as the United States Bill of Rights. The Sixth Amendment to the United States Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Australia seems to lack such constitutional guarantees and the Pell gag order has no force under the U.S. Constitution. — Neonorange (Phil) 07:01, 5 September 2019 (UTC)[reply]

The US case law does not support your assertion about the US Constitution. As the Wikipedia article about the Sixth Amendment points out, the Supreme Court ruled, in Sheppard v. Maxwell (discussed above), "... that the right to a public trial is not absolute. In cases where excess publicity would serve to undermine the defendant's right to due process, limitations can be put on public access to the proceedings." Bahnfrend (talk) 07:07, 5 September 2019 (UTC)[reply]
Alright, we can go back and forth all day long about hypotheticals. Here's a challenge for something concrete: Find me one case where the US Supreme Court upheld a total ban on media publishing anything. Anything at all. Not even just something trial related. Find one case where SCOTUS allowed the government to issue a media ban. Here's a hint: It isn't even allowed in cases of "national security". Glenn Greenwald, before publishing the Snowden leaks, told the State Department what he knew and was planning on publishing, so that they could tell him if certain details might immediately endanger someone, and so that if his publication did endanger them, they could try to get them out. But he knew full well that State couldn't keep him from publishing, even though he was about to publish classified material. That's how strong freedom of speech and press is in the US. So trying to "read between the lines" of some past cases doesn't undermine that; it was upheld far more recently than that. State didn't even try to go to court to keep Greenwald from publishing, because they knew they'd just get slapped down and look foolish for doing it. Seraphimblade Talk to me 07:23, 5 September 2019 (UTC)[reply]
(edit conflict) Yet the contents of the writ from the U.S. Supreme Court differs from your statements (one reason Wikipedia is not considered a reliable source). The writ speaks to judicial misconduct—failure to apply available remedies to pretrial publicity and courtroom conduct. Two more points: you bring up a case from 1966, fifty-three years ago. Pretrial publicity in the U.S. differs greatly now. In addition, the entire set of hearings by higher courts concern the original defendant.
As Seraphimbladesuggests, you find a reliable source that supports your contention (guessing here) that Australian legal custom supports suppression of Australian trial results in other countries. And I will, as Seraphimblade suggests, look for an applicable U.S. ruling.
Neonorange (Phil) 07:54, 5 September 2019 (UTC)[reply]
In case someone is wondering, Australia does have a written constitution, and Section 80 says:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
Hawkeye7 (discuss) 08:59, 5 September 2019 (UTC)[reply]

There are two countervailing reasons for wanting the fair trial these gag orders (and other sub-judice measures) are meant to support. Firstly it it in the interest of justice for the defendant. Secondly if it can be shown that a fair trial cannot be held, or was not held, the defendant can escape justice, so it is in the interest of the prosecution too. A similar case in the UK recently involving a grooming gang, resulted in the imprisonment of someone reporting on it. All the best: Rich Farmbrough, 14:12, 16 September 2019 (UTC).[reply]

^^What Rich said, and while still looking at the bigger picture, we actually do have PAGs that cover what we can/cannot include that requires strict adherence to our core content policies. Along that same line I ask, what benefit does free speech serve if it becomes the catalyst for a trend to ban WP in other countries? WP is not a tool for SJW, it's an encyclopedia and we don't encounter problems when we accurately include the final results of legal cases in an encyclopedic article after the cases have been finalized and RS have all the facts. Jumping the gun is a problem we frequently encounter in AP2 and it appears to be spreading to different topics pedia-wide. WP:BREAKINGNEWS, WP:NOTNEWS, WP:NEWSORG, WP:BLP, WP:RS, WP:NOR, and on and on all come to mind. Just exercising free speech here. Atsme Talk 📧 15:26, 24 September 2019 (UTC)[reply]





       

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