Avoiding contempt of court: Tips for bloggers and tweeters

7 March 2011 by Adam Wagner

Update 9/5/11 – for more on super injunctions, see Gagging on privacy, the Human Rights Roundup and Unelected, underqualified and frankly bonkers.

Last week the High Court convicted two newspapers, the Daily Mail and the Sun, of contempt of court for the publication on their websites of a photograph of a man toting a gun during the ongoing criminal trial of that man. They are now likely to face large fines.

It was the first such case of contempt relating to an online publication. By way of background, Alex Bailin QC has posted an excellent comment piece on the Inforrm blog. I have also already discussed the judgment, and the ominous warning by the court that “instant news requires instant and effective protection for the integrity of a criminal trial“.

My post generated comments from concerned bloggers and tweeters asking what this meant for contempt and online publishing going forward. This is a hard question to answer as it mostly depends on which cases the Attorney General choses to prosecute. But, although the following is not legal advice, reviewing the case-law on contempt provides some indication of may be to come, and common-sense ways in which publishers, including tweeters and bloggers, can avoid being prosecuted.

First, a quick guide to contempt of court. The ‘strict liability rule’, contained in sections 1 and 2 of the Contempt of Court Act 1981, relates to publications during the time that court proceedings are ‘active’, and which create a risk of prejudice to those proceedings. The liability is strict, in the sense that the publisher’s intention is irrelevant: that is, liability is unaffected by whether or not there was an intention to prejudice the proceedings. The rule applies in cases where

a publication… creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. (s.2(2))

So, the important questions are therefore what constitutes a “substantial risk” and what it means for proceedings to be “seriously impeded or prejudiced”.

The ten principles

Courts tend to rely upon Lord Justice Schieman’s list of principles in Attorney General v MGN Limited and Others [1997] EMLR 284, [1997] 1 All ER 456. I will attempt to summarise these principles and elaborate where necessary.

The first principle is that each case must be decided on its own facts. This emphasises the (one would hope) obvious point that no two contempts will be the same, as criminal trials are complex entities and no two juries are the same.

The second is that a court will look at each publication separately and test matters as at the time of publication. So, the question is not what the actual effect of an article, blog post or tweet has been, but rather the position at the time it was published. It is also not possible to argue that earlier publications had already created a risk of prejudice. So, for example, it would matter little that a photo of the defendant holding a gun had already been widely available online; the question is what further prejudice has been created by the publication which is the subject of the prosecution.

Thirdly, the publication must create some risk that the course of justice in the proceedings in question will be impeded or prejudiced by that publication. This is the key point, and reflects the language of s.2(2); as does the fourth principle, that the risk must be substantial. And, by the fifth and sixth, the court must be sure that the publication has seriously impeded or prejudiced the proceedings.

This may all sound a bit confusing. A lot of talk of “serious” and “substantial” risk of prejudice, but little of what that actually means. To that end, the seventh principle provides three factors which must be taken into account:

(a) The likelihood of the publication coming to the attention of a potential juror. This will include consideration (amongst other things) of whether the publication circulates in the area from which the jurors are likely to be drawn, and how many copies circulated (eighth principle). In the gun pictures case, the Mail and the Sun both provided figures as to how many people viewed the articles in question (in the 100s) and how many regular views the sites had (in the millions).

Both publications also relied unsuccessfully on the short time period – a matter of hours – which the photograph was available. However, the court would not go as far as as agreeing with counsel for the Attorney General that the length of time before the photograph was withdrawn was irrelevant. Rather, “The longer it was available, the greater the chance that a juror might see it.”

Although this represented a minor victory for the publishers, and should protect others against small, perhaps accidental lapses in future, the court itself referred to the “viral” nature of the internet. It is not hard to imagine another court finding that, for example in the context of Twitter, where tweets are almost instantaneously retweeted and disseminated, that publication for a few moments was enough to do damage. That of course must be balanced with the impracticality of such an approach. Realistically, it is unlikely that except in the most egregious cases that such instantaneous publishers would be pursued. That being said, it is possible to conceive of a Twitterer with a hundred thousand followers being prosecuted for their tweets during a trial.

(b) The likely impact of the publication on an ordinary reader at the time of publication. This is assessed by considering the prominence of the article in the publication, and the novelty of the content of the article in the context of likely readers of that publication (ninth principle).

(c) the residual impact of the publication on a notional juror at the time of trial. It is this last matter which is crucial. This will include the length of time between publication and the likely date of the trial, the focusing effect of listening over a prolonged period to evidence in a case, the likely effect of the judge’s directions to a jury (tenth principle).

This was important in the gun picture case too, as the judge had told the jury not to “consult” the internet. Juries are assumed to be followers of judges’ instructions. One may disagree with this principle given that a former Director of Public Prosecutions has said that we should in fact assume that jurors do occasionally look up their cases online, despite judges’ instructions. In any event, in the gun picture case the court was unconvinced that the judge’s instructions were clear enough as to ensure that the jurors would have avoided the internet altogether.

However, this is by no means a guarantee that this rule will survive in future. The way people browse the internet is constantly changing, and it is not difficult to imagine a judge being taken trough the process of searching on Google, which inevitably unearths more than articles directly related to a subject, but also blogs, tweets and other miscellany which merely mentions a topic.

As David Banks pointed out on Guardian.co.uk, the judge appears to have accepted the long-standing principle that jurors will read reports on the case at the end of a day, but nothing else. So the real prejudice came in reports directly relating to the case.

Reasons to be afraid

Where does this leave bloggers and tweeters? This was a case involving two high-profile (in fact, the two most high-profile) new publications. It seems a long way from an average tweeter or blogger. But this does not mean “citizen journalists” should rest easy. Two points arise.

First, the Attorney General has made a clear point of prosecuting these publishers in relation to an online photograph. And a court has obliged, despite the difficulties of pinpointing the precise effect of such publications. Its ominous warning that “instant news requires instant and effective protection for the integrity of a criminal trial” will undoubtedly be quoted in future. It should be noted that the new Attorney made a point of publicly warning newspaper editors in relation to the Joanna Yeates murder case and the demonisation of the initial suspect (who was never charged), and he will watching carefully if the case goes to trial.

Secondly, the growing influence and reach of legal bloggers and tweeters is a good thing for access to justice, but it will also bring them onto the radar of potential jurors and, by association, the courts. The more successful and influential a commentator, the more likely their comments are to influence a jury and therefore prejudice a trial. And the gun picture case shows that commentators cannot rely on judges to give clear enough warnings to jurors in relation to consulting the internet. So if you are a popular blogger or tweeter, be extra careful.

Generally speaking, think very carefully before posting or tweeting in relation to ongoing criminal trials (or family proceedings, for that matter). If you are tweeting from the trial, make sure the tweets are accurate and stick to the facts. Wait until the trial’s conclusion (that is, after the judgment) to editorialise. The same should apply even if you are not in the court room but commenting from afar. If anything, this is more dangerous as you are more likely to get things wrong.

If you think you may have published something which could lead to trouble, delete it immediately and do all you can to ensure that it has not been referred to or posted elsewhere. This is of course not easy in the context of the internet, but those with a bit of tech knowhow may be able to minimise the damage. Asking your readers to ignore a previous posting may only compound the problem. Despite my point above that the internet may make questions of how long something is “published” for somewhat redundant, the courts still take seriously how long a publication was available for.

Blogging and Twitter have thrived because they are instantaneous and open to the world. But those features which have made them so successful may also expose commenters on current trials to the risk of prosecution. A brief comment, even if it merely quotes or refers to another source, could lead to trouble for the publisher. So, think twice, if not thrice, before weighing in on a criminal trial. And don’t assume that nobody is listening.

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Read more:

• Super injunctions, bin Laden and two key inquests – Human Rights Roundup
• Writing about family proceedings – a blogger’s guide – Pink Tape
• Warning for bloggers and tweeters as newspapers found guilty of contempt of court
• Unelected, underqualified and frankly bonkers

As with everything on this blog, the above should not be considered to be legal advice. Anyone in doubt should 1) seek legal advice about the specifics of your case and 2) hold off on publication until that doubt is resolved.

Angus McCullough QC, who is an editor of this blog, represented the Attorney General in this case. He is not the writer of this article.