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MAN CHARGED WITH TWO COUNTS OF CONTEMPT FOR VIDEOS POSTED ON YOUTUBE ABOUT TASMANIAN MP
Ferguson v Dallow (No 3) [2021] FCA 177 (5 March 2021)
This is a contempt case against Dallow for posting and failure to take down the videos immediately as stated in the court order in a case against him filed by Ferguson.
Facts:
The applicant is the Leader of the House of Assembly of the Parliament of Tasmania and a Minister of the Crown. Mr Dallow, who is the first respondent, holds himself out as a journalist and operates a website called “TAS News 24”.
Mr Dallow uploaded a video to YouTube and his website (the first video). The video contained a purported interview between him and an anonymous woman, who made serious allegations against the applicant. Mr Dallow released a second video on YouTube, and on his website (the second video). It was said to be an “update” to the first video. In it, Mr Dallow repeated the allegations made in the first video. On or about 7 December 2020, a video entitled “Legal Update” (third video) on the website and YouTube, such third video publishing, republishing, distributing, disseminating or making available for viewing the allegations made against the applicant in the first and second videos.
By interlocutory applications in this proceeding, the applicant seeks declarations that Mr Dallow is guilty of two contempts of this court for intentionally disobeying orders made by it.
The first charge of contempt alleges disobedience of an order made by Kerr J on 2 December 2020. The second charge alleges disobedience of an order made by White J on 9 December 2020.
The first charge held that Mr Dallow was restrained from publishing, republishing, distributing, disseminating or making available for viewing the first video, the second video, and the allegations made against the applicant in the first and second videos, for a period of 7 days commencing immediately upon the applicant’s amended originating application. The second charge ordered him to remove the third video within two hours of the orders or as soon thereafter as was reasonably possible.
Issue: Is Dallow guilty of contempt?
Law:
Analysis:
The publication of the third video was, beyond reasonable doubt, an intentional breach of the orders of Kerr J.
The court does not accept Mr Dallow’s assertion that he did not intend to breach the order of Kerr J. He well knew that, under the guise of giving an “update” about this proceeding, he was repeating and republishing the same very serious allegations made in the first and second videos. This was deliberate, and not a consequence either of misunderstanding Kerr J’s orders or an accident.
The breach can only have been a deliberate one. As Mr Dallow agreed in cross-examination, the preparation of the third video, like the other videos, required him to take a number of deliberate steps, including deciding what the video would be about, writing the script, selecting graphics and video effects, selecting sound effects, and working out a running sheet or plan.
As to the second contempt charge, the court is satisfied beyond reasonable doubt that Mr Dallow deliberately breached the order of White J because he did not cause the third video to be removed from YouTube within two hours of the making of the order.
Mr Dallow knew that he had the capability immediately to do so without travelling back to Launceston, where he admitted that he well understood the meaning and effect of the order, and where it was not removed until around 10:38 pm that night, the court finds beyond reasonable doubt that he deliberately refused to comply with the order to remove the third video from YouTube within two hours of the making of the order.
Conclusion: Kane Scott Dallow is guilty of contempt of court.
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