True Crime & Punishment: Legal Risks in True Crime Series

What you need to know 

• True crime series are increasingly popular, but they carry a number of legal risks, which producers should be aware of in preparing their series.

What you need to do

• Review our guidelines and take the recommended steps to reduce your risk.

There has been a proliferation of true crime films, documentaries and podcasts in the last few years, and, while our fascination with grizzly crimes is nothing new, the modern era of true crime series has the potential to reach far greater audiences than ever before.

Given the nature of true crime series to seek to "expose the truth" and find someone on which to put the blame, whether it be someone suspected of a crime or a police officer suspected of incompetence or a malicious cover up, this is an area ripe for defamation litigation. The features of true crime series mean that it will be extremely difficult for producers to rely on any of the existing defences. Producers must therefore carefully balance the legal risks of publishing the material with the value of telling the story.

In True Crime & Punishment: Legal Risks in True Crime Series, we explore the legal risks and challenges posed by serialised true crime documentaries and podcasts, where one crime (or series of connected crimes) is investigated in depth over the course of a season (e.g. Serial, Trace, Making a Murderer), as opposed to the one-crime/criminal-per-episode format (e.g. Casefile True Crime, My Favorite Murder). Our guide also focuses on risks specific to true crime series, as opposed to more general legal risks for series (e.g. copyright infringement). You can download a copy of the guide here.

The first and most important issue on the to do list of anyone considering producing a true crime series should be to consult a lawyer, to obtain their advice about how best to proceed with investigating and presenting their story, with the knowledge of the particular facts of the crimes. The following quick reference resources are designed to assist producers to identify the areas of legal risk at each stage of the creative process so that further advice can be sought as appropriate.

Before you begin

Research

• Are there any other statutory restrictions in place that may prevent you conducting your investigations or publishing any information (e.g. the name of a child victim)?
• Have you made attempts to contact the people discussed in your series?
• Have you kept detailed records of the research and interviews you have undertaken?
• If you are using any secret recordings, have you checked the legislation in the relevant state or territory about the use of those recordings?
• Have you ensured you are not disclosing the names of any jurors or the nature of their deliberations?
• If you have obtained any new information about a crime, have you considered providing this information to the police?
• Have you taken steps to verify the accuracy of information?
• Have you checked that the conclusions you are drawing are based on evidence?

Interviews

• Have you obtained releases from your interview subjects?
• Have you explained to any sources that have requested anonymity that, while you will make every effort not to disclose their identity, you may be compelled to by a court?
• Have you confirmed your interview subjects are happy to be recorded? If they are, make sure to preserve the recording. If not, take and preserve detailed notes.
• Have you encouraged interview subjects to describe why they have come to the conclusions they have come to, and ensured they understand how to express their opinion to make it clear they are giving an opinion?

Presentation

• Have you stated where matters are your own opinion, and on what material that opinion is based?
• Have you clearly set out when you are quoting from public documents, and stated the source of the quote?
• Where possible, have you set out alternative theories or explanations?
• Where you have contacted individuals discussed in your series, have you included their responses to you (e.g. any denials)?
• Have you avoided using words that imply guilt where guilt is disputed (e.g. murderer, killer), or imply a higher level of guilt or involvement (e.g. murder v manslaughter, dealing v possession, suspect v person of interest)? Be as precise as possible in the language used. Where possible, look at the relevant criminal legislation to determine appropriate terms. Using the wrong language can mean your audience misinterprets what you are trying to say, and you may be liable for saying something you didn't intend to convey.

Editing

• Have you included callbacks to previous episodes where they include information that led to the conclusion presented in this episode?
• Have you included pointers to other episodes, where the other episode contains the "antidote" or alternative theory to the theory being presented in this episode?
• Have you included a content warning for any graphic descriptions or depictions of violence, or the use of recordings of deceased indigenous individuals?
• Have you included a disclaimer, stating that the matters in the series are your opinion, and that the outcome of criminal proceedings was different (if applicable)?

Post-Publication

• If a criminal prosecution is commenced, do you have a mechanism to withdraw the series from publication until the prosecution is concluded?
• Are you carefully monitoring social media comments on your posts to ensure third parties are not making defamatory comments for which you may be liable? On platforms where this is possible (e.g. Instagram), consider blocking comments. Where platforms do not allow comments to be blocked (e.g. Facebook), consider implementing the available controls to restrict comments.
• Have you maintained an organised file of all information, recordings and interviews, in the event the police or the court requires the information?

Authors: Imogen Loxton, Lawyer; and Robert Todd, Partner.