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
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.
Future advisory notes from the Attorney General will be published to help prevent social media users from committing a contempt of court placeholder
Advisory notes from the Attorney General will be published on the gov.uk website and twitter from today to help prevent social media users from committing a contempt of court, Dominic Grieve QC MP has announced.
The advisories, which have previously only been issued to print and broadcast media outlets on a not for publication basis, are designed to make sure that a fair trial takes place and warn people that comment on a particular case needs to comply
with the Contempt of Court Act 1981.
The change in policy is designed to help inform the public about the legal pitfalls of commenting in a way which could be seen as prejudicial to a court case or those involved.
Attorney General Dominic Grieve QC MP said:
Blogs and social media sites like Twitter and Facebook mean that individuals can now reach thousands of people with a single tweet or post. This is an exciting prospect, but it can pose certain challenges to the criminal justice system.
In days gone by, it was only the mainstream media that had the opportunity to bring information relating to a court case to such a large group of people that it could put a court case at risk. That is no longer the case, and is why I have decided to
publish the advisories that I have previously only issued to the media.
This is not about telling people what they can or cannot talk about on social media; quite the opposite in fact ...BUT... it's designed to help facilitate commentary in a lawful way. I hope that by making this information available to the
public at large, we can help stop people from inadvertently breaking the law, and make sure that cases are tried on the evidence, not what people have found online.
This change also brings more openness to Government's dealings with the media so that both sides can be accountable to the public for what they do and say.
The advisories will be published on the Attorney General's Office (AGO) section of the gov.uk website and also through the AGO's twitter feed, @AGO_UK
Jurors should face up to two years in prison if they search the internet for information about cases beyond the facts revealed in court, the Law Commission has recommended.
Judges should also be given powers to remove jurors' mobile phones, and all internet-enabled devices must be confiscated during jury room deliberations, according to the commission's proposals for reforming contempt of court regulations.
The report suggests that the attorney general ought to take on responsibility for ordering the media to remove previously published stories from websites if they are deemed to jeopardise a fair trial.
The Law Commission believes its proposals on removing stories from websites will not require media organisations to monitor every trial in the country to ensure that archived stories, still available online, pose a risk to a fair trial.
By requiring the attorney general to make a formal approach to the media when it is feared there is a significant risk that previously published material could undermine justice, the commission intends that interventions will be rare.
There's nothing in Google.
He must be guilty as sin!
Ministers are seeking powers to make newspapers remove from their online archives stories about the criminal past of people facing trial.
Editors fear the move could create a black hole in the historical record by striking out previous convictions.
The planned new law is part of the Criminal Justice and Courts Bill now before parliament. It has been designed to restrict jurors using the internet to research a case, mid-trial.
The jurors will in future face a possible prison sentence if they are caught trying to delve into the defendant's past. But, to make it harder for them to do so, Attorney General Dominic Grieve wants the power to issue a so-called take-down order
to UK newspapers.
Editors who ignored a request would face imprisonment or an unlimited fine.
Bob Satchwell, executive director of the Society of Editors, said it meant defence lawyers could push for a complete ban on every article previously published about a defendant. He said:
The new provisions could have a highly restrictive effect upon the freedom to publish far beyond that intended and ultimately be capable of creating black holes in the historic record.
In theory, the information could be returned to the archive once the trial is complete, but it is feared some papers would not have the resources.
The laws would apply to UK newspapers, but not the likes of the Huffington Post, which receives millions of hits in Britain. Twitter would not be covered, either.
The government has abandoned plans to give itself powers to order media organisations to remove articles from their online archives. A clause in the criminal justice and courts bill would have enabled the attorney general, currently Dominic Grieve QC, to
order newspapers and other publishers to take down past articles on the grounds that their continued presence would create a danger of contempt if jurors in a court case searched for information on the internet.
Media organisations, including the Guardian, had opposed the move. In written evidence to MPs last year, they said:
We fear that the introduction of statutory powers could lead to the use of notices becoming standard practice leading to the courts and media becoming inundated with requests to take down material.
This has serious practical implications for the resourcing and maintenance of and public access to the archives of both national and regional media.
The plan originated in a proposal from the Law Commission two years ago which argued that courts should be armed with powers compelling media organisations to take down old stories from electronic archives in order to remove potentially prejudicial
A statement from the attorney general's office confirmed the decision to abandon the proposal. It said:
The governmen recognises the disquiet surrounding the proposal. Given that this measure was designed to assist the media, it is significant that representatives of the media consider that this provision does not do so.
Whilst the government considers that the notice provision would be an improvement for the media, courts and attorneys general alike, it is satisfied that the existing law will continue to provide satisfactory protection to the integrity of legal