Can Geofencing Provide a Defense Against Contempt of Court Over an Australian Gag Order?

February 2, 2021—Can a global news organization be held liable for breaching a court order in Australia when their publications never set foot down under?

And is “geofencing” by digital news organizations – in which they block access to content based on geography – an effective defense against contempt of court?

Both questions – which centered on the news company’s coverage of Cardinal George Pell’s since-overturned conviction in a sexual abuse case in Australia — were part of a lively discussion at the American Bar Association conference on Tuesday.

The conversation focused on the geofences put up by publishers of information under a gag order in Australia.

This discussion was held on the heels of 12 Australian news networks admitting that they breached the order banning the identification of Cardinal Pell, even though none of them named him in news coverage. (They used headlines like, “Secret scandal. It’s Australia’s biggest story. A high-profile person found guilty of a terrible crime. The world is reading about it but we can’t tell you a word.”)

“We record it in the U.S., and then geofence Australia,” said Micah Ratner, assistant general counsel for National Public Radio. Even though NPR did not have a representative in the courtroom, they do maintain people on the ground in Australia, and there could have been contempt-of-court consequences for them if NPR had not geoblocked the region, said Ratner.

This compromise is not perfect, said Katharine Larson, chief general counsel for Reuters, referring to virtual private networks: “People can VPN around [a geofence]. No matter what you do, if you [print information] only in the physical form, people can photograph it, and then you’ve lost control.”

But Associated Press Assistant General Counsel Brian Barrett said that geofencing can still serve as an important gesture. “I think it can be a strong statement of intent–and a sense of, ‘look, we tried–here’s the steps we took to comply with your order.”

The discussion took place the day after charges were dropped against Australian journalists for breaching the ban.

Using Signal versus WhatsApp

Another focus of the workshop was the developing situation in Ethiopia, where journalists have been subjected to a pattern of intimidation and violence on behalf of the Ethiopian government.

This culminated in the detention of Reuters cameraman, Kumerra Gemechu, and the beating of Reuters photographer, Tiksa Negeri, by two Ethiopian police officers, late last year. Gemechu was released after being held for two weeks without charge.

Larson of Reuters advised those working with journalists abroad to make sure that if “you know who all your people are, [and] the next thing you want to know is all their devices.”

There should be a complete inventory of the laptops, phones, and any other devices that could potentially store sensitive information.

She also suggested that journalists opt for “burner” devices that could be disposed of or turned into the authorities easily. She also advised that reporters and other members of a multimedia crew regularly upload and delete unnecessary data.

Larson referred to engaging in these behaviors as “maintaining good digital hygiene.”

One of her final recommendations under this label was to switch from the centralized messaging system, WhatsApp, to a competitor, Signal. She made this recommendation after two Reuters reporters were arrested in Myanmar in 2017, and the contents of their WhatsApp conversation divulged.