Mainstream media reportage has been overtaken by the unregulated content on the internet, where material that is prejudicial by any definition appears on countless sites, hit by millions of visitors. The dividing lines between fact, allegation, rumour, fiction and deliberate fabrication are completely blurred. The courts seem paralysed and unable to acknowledge the internet is in danger of overwhelming the old defences against publication of prejudicial material.

In December, in the first case of its kind, a defence lawyer in Tennessee attempted to have the venue for the imminent trial of his client moved because false and fabricated accounts of the facts of the case on YouTube and blogs may have prejudiced prospective jurors and witnesses. Attorney Philip Lomonaco of Knoxville, Tennessee, had his first application to the Eastern District Court dismissed. The appeal outcome is awaited.

While there have been no attempts in the UK to claim mistrial on the basis of prejudicial internet material, the time may not be far off. In Scotland, Donald Findlay QC is disturbed at the reluctance of legal authorities to acknowledge the serious problem that arises not only in high profile trials but in mundane cases where a Google search will produce assertions about key evidence that the jury will have to decide in court.

Prejudicial publicity is our real problem in the criminal courts these days. It's very serious. And the biggest part of the problem is the internet. For example the courts go to great lengths to excise any material that may refer to previous convictions of the accused. But it's not the rare obsessive going to the Mitchell Library that makes a mockery of that. The fact is anyone can put the name of the accused into Google and come up with a complete history of the investigation and all the accused's previous convictions in a second. Don't tell me jurors don't do it when they get home after the first day of a trial.

I don't have an easy answer but I do think if we accept we can't control or stop the internet then maybe we have to think again about how we manage juries. Jury vetting. What I do know is pretending the internet doesn't exist won't serve the interests of justice.

Read the full article

Articles relating to high-profile court cases should be removed from online news archives, the former Lord Chancellor has told the BBC.

Lord Falconer believes the action is necessary to avoid news stories written before a case influencing its outcome.

Action would be necessary for around 20 cases a year, he said, in trials which attract a lot of pre-trial coverage.

The Attorney-General would have to be responsible for identifying cases that could be affected, he said: I think the state needs to be better at identifying those cases in which they think there's a contempt risk, he told BBC Radio 4's Law in Action programme.

The rules would only apply to cases, such as the Soham murders, which generate intense media interest. News organisations would have to remove stories from their archives that were written before an arrest was made and a case became active.

If they refused to comply it would be very strong evidence they'd committed contempt, he said.

Under the Contempt of Court Act 1981, reporters must be careful not to publish or broadcast anything which poses a substantial risk of serious prejudice to a fair trial, such as a defendant's previous convictions unless they are mentioned in open court.

The restrictions apply when a case becomes "active", that is when a warrant is issued for a suspect, an arrest is made or charges are brought.

But a journalist may have legitimately reported this information before the individual was arrested and faced trial, and that article could lie in vast online archives that are easy to access.

Lord Falconer says articles should only be removed for a temporary period, in the run-up to and during a court case, and that search engines should also be asked to ensure prejudicial material doesn't come up at the top of search results lists.

Judges do warn juries against doing their own research on the internet, but media barrister Rupert Elliott said there was concrete evidence that the temptation is difficult to resist:

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 chooses 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.

...Read the full article