In response, the Inforrm blog has asked:

Does the Act “reverse the chilling effect on freedom of expression of current libel law” or is it damp squib which will make defamation cases more complex?

It’s a big question. It might be more realistic to hope the unwarranted deterrence of legitimate expression is reduced. The answer would need to be informed by a good deal more data than is currently available, to compare defamation related activity pre and post reform. The court records only provide very limited information about the way in which publishing activity is detrimentally affected by defamation costs and procedure.

To understand perceived chilling effects (most invidious when protected expression is deterred for fear of legal sanction and associated costs – see Schauer 1978, PDF) it is necessary to look at claims that are discontinued or settled before a hearing, complaints that are settled before ever reaching court and beyond that threats of legal action that never materialise (see Barendt et al 1997).

Further still, there is the anticipated fear of legal action and costs based on past experience, or the experience of others. Additionally, behavioural change as a result of the new Act and associated procedure might not be immediately obvious (if claims involving causes of action accrued prior to commencement of the Act can still be brought under the old law till late 2014).

It would be beneficial to researchers and policymakers if more anonymised data were made available (by the judiciary/MoJ, media companies and defamation specialist firms) about claims, complaints settled before they reach court, and abandoned threats [more on this here].

It’s encouraging to see the Master of the Rolls emphasise the importance of Alternative Dispute Resolution [PDF]. I’ve heard it suggested that claimants are often far more concerned about an apology and correction than damages (though costs add up fast once litigation is underway); if so, it would make sense to find alternative avenues for resolving disputes more quickly and cheaply.

This would both help protect publishers from illegitimate threats, as well as providing suitable redress for legitimate claimants. Resolving complaints in fair and effective ways through affordable and sensibly designed alternative routes does not necessarily have to prevent access to justice – for both defendants and claimants.

The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I attempted to give a bit of context to the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information.

In a few bullet points, here’s the gist:

• The premise of ‘Open Justice in the Digital Era’ is simple: enhancing freedom of expression and open justice through digital dissemination of courts data
• Inspired by other initiatives opening up governmental data (e.g mySociety’s WhatDoTheyKnow, TheyWorkForYou etc.)
• But: very little useable data exists at source. It’s public (sort of) but no-one seems to have taken a particularly systematic approach to opening it up
• Our project ran two events in 2012, with view to forming recommendations in due course
• Some of the ideas discussed (not recommendations at this stage) include:
  • The publication of ‘noticeboard’ court lists
  • The publication of court results (see William Perrin and discussion on Information Rights and Wrongs / HonestlyReal)
  • The publication of court documents such as all statements of case, judgments, orders, witness statements and written submissions
  • A reporting restriction notification system (see Scottish courts online system)
  • Wider availability of judgments and judgment summaries (opened under an Open Government Licence)
• Some of this material would be fairly straightforward to open up online, but some suggestions – particularly those around court lists and sentencing data – raise thorny issues for Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation
• Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines. A lot of the way material is published has its roots in journalistic / law reports convention, developed in a pre-internet world, when personal digital records would have been the stuff of dystopia novels
• At present, it’s all very inconsistent – there has been some opening up of courts information around the web (some efforts have encountered data protection objections – see Wigan World’s update, for example)
• The way courts material is handled is raising questions across Europe. In Spain, for example, the National Court (AN) has referred to the European Court of Justice with questions about a search engine result for a debt case, in relation to the Right to be Forgotten
• In 1955, Lord Denning described how a member of the public is entitled to report all that he has seen and heard in the public press. Now, the public doesn’t need the press to do it, but how should it be managed, when it has such a powerful effect on an individual’s digital identity (not only defendants, but victims and witnesses too**)?
• A couple of key questions about the current state of play: Is it logical to allow a private company to access and publish the data in closed/open databases, but not a not-for-profit organisation, or individuals? It is logical, or even possible, to publish courts data online but make it non-indexable by Google?
• In forming recommendations  we must consider these difficult issues around individuals’ privacy rights
• To discuss them is not to be hostile or obstructive to the right to freedom of expression: it is merely being responsible and ethical in our practice. We need to look at both sides of the privacy/freedom of expression coin, in order to assess the best ways of opening up information in the public interest and securing it when it’s legitimate to do so
• A coherent approach to the management of courts data is needed and the MoJ and judiciary should be giving this issue the attention it deserves

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

**As I was reminded in the questions following my talk. Other responses from the group raised even more uncertainties and questions. More views and problematic scenarios are welcome below…

It isn’t necessary to publish information about specific cases contemporaneously, nor to publish to the world at large at any time the “not so basic” details of a specific case, in the way that the courts have started to do. The Practice Direction can be amended to oblige practitioners to provide the required basic information to a central office in the High Court. Transparency is possible through statistics without needing to draw attention to individuals at the time they obtain the injunction.

I’ve left a comment below the piece, asking whether the open justice principle in fact requires the publication of basic detail about contemporaneous privacy judgments, which mimics a question put by Edward Thompson in the Journal of Media Law last December, in relation to cameras in court. I am not attempting to provide an answer at this stage, but am interested in hearing what other people think.

If Phone Hacking the Movie does ever get made, there wouldn’t be room for all the plot threads. In the meantime, here’s a hypothetical trailer:

On Meeja Law, Barry Turner argued why he thinks more regulation won’t prevent the next phone hacking scandal. This post explained the relevance of Operation Motorman. We also delved into courts data, revealing two government contracts controlling the release of judgment and court listing information. A follow up post looked at the Ministry of Justice’s new(ish) site. Finally, I helped the Inforrm blog put together the latest version of its case tables.

Meeja Law is having some server issues this weekend – sorry if you haven’t been able to access content. Everything should be back to normal by Monday morning.

Phone hacking

• Inforrm>>News: The trade in personal data – a new study of police disclosure of personal information
• LSE MediaPal>>’Allo, allo, allo…': the extent of the police trade in confidential information
• Privacy International>> The UK phone hacking scandal: there’s worse to come – much worse
• Media Guardian>>This phone-hacking inquiry must not lose sight of its goal | Damian Tambini
• Herald Sun>> Whistleblower ready to tell inquiry others also hacked phones
• Telegraph>> Phone hacking: missing News of the World executive Greg Miskiw to fly to UK for police talks
• David Allen Green>> Are the Non-Murdoch media now threatening a select committee member?
• David Allen Green>> Allowing the lawyers to speak
• Out-Law.com>>MP asks Serious Fraud Office to investigate News Corporation allegations
• Guardian>> Phone hacking: Met police to investigate mobile tracking claims
• Press Gazette>>Met phone-hack probe studies Motorman file
• Press Gazette>>Which NI executives were party to cover-up is biggest unresolved question of phone-hacking affair
• Inforrm>>Hacked Off: Response to the Prime Minister’s statement about the forthcoming judicial inquiry
• Charlie Beckett>>Why does Britain have such a popular, political and aggressive tabloid press?
• Media Guardian>>Phone-hacking inquiry extended to include broadcasters and social media
• Media Guardian>>Phone Hacking: did News Int pay Glenn Mulcaire’s fees to gag him?
• David Allen Green>> Mulcaire and confidentiality
• MST>> MST statement on Sir David Bell’s appointment to the Leveson inquiry
• Press Gazette>>Met hacking inquiry ‘could take decade to complete’
• Inforrm>>News: Phone Hacking – Home Affairs Select Committee Report published
• Press Gazette>>Brooks: ‘NoW consistently denied phone-hack claims’
• Charlie Beckett>>James and Rupert Murdoch: humbled but not defeated (so far)
• Press Gazette>>Paul Dacre never ‘countenanced ‘ hacking or blagging
• Inforrm>>News: Phone Hacking “Super Tuesday” – the day of the Parliamentary Committees
• BBC News>> Piers Morgan denies phone-hacking claim
• Press Gazette>>Hacking probe puts PA reporter in the clear
• Press Gazette>>Les Hinton resigns, Rebekah Wade arrested
• Press Gazette>>Met chief resigns amid Sunday Times health club claims

Libel

• Press Gazette>>Yates of Yard signals intention to sue Evening Standard

Press regulation

• MST>> Press reform: a local view
• Iain Overton>> Analysis: Why Press Reform Could Inhibit Investigative Journalism

Privacy

• RPC Privacy>> A “tenuous claim to privacy”: Hutcheson v News Group
• Inforrm>>BBC Radio 4 – the PM “Privacy Commission” Report
• Inforrm>>Case Law: KGM v News Group – The Scoop, the Chef, his Wife and Her Father – Rosalind English

Court reporting

• Inforrm>>‘I should be licensed to be the eyes and ears of the public’, says Benjie Pell – Frances Gibb
• Press Gazette>>Judge gags press after defendants’ prison van escape
• RPC Privacy>> Reporting the Courts: a view on postponement orders

Contempt of Court

• Media Guardian>>Joshua Rozenberg | Newspapers pay high price for ‘accidental’ contempt of court

Freedom of Information

• David Higgerson>> FOI: More from Kirklees Council, where the council leader signs off FOI requests

Got a question?

Meeja Law is planning to run a series of ‘Media law surgery’ posts and will put online writers’ legal questions to various experts. If you’ve got a question, please leave it in the comments here, or drop a line to jt.townend@gmail.com.

Want to contribute to Meeja Law?

Meeja Law would love to host guest articles by journalists / lawyers / students – or anyone with an interest in media law and ethics. If you’re interested please get in touch.

You can find a full stream of aggregated media law news via @medialawUK on Twitter; and Meeja Law tweets go out via @meejalaw. Please contact me via @jtownend or jt.townend [at] gmail.com with ideas, tips and event notifications. Relevant journalism and law events here: https://meejalaw.com/events/.

When I was researching the issue in June I asked the Ministry of Justice about changes to its site. As you may have noticed Justice.gov.uk recently underwent a re-vamp (in April 2011) and HMCTS data is now hosted on its site.

The MoJ web team answered my questions earlier this month. The answers aren’t terribly specific about future plans, but they do state that they’re open to suggestions from users. There’s a web survey here or you can email the MoJ website via web.comments [at] justice.gsi.gov.uk.

I noticed the Justice site has a new look and I wondered if you could outline the main changes?
The main changes implemented came about as a result of a Cabinet Office directive to reduce the number of departmental websites. The changes involved:
•    Converging the content of approx. 50 related public bodies/organisations into the Justice.gov.uk website, and refocusing it to become a website about the justice system as a whole, rather than simply a departmental website for the Ministry of Justice.
•    A shift of focus towards providing corporate and practitioner information only, with public-facing transactional content being moved to Directgov and Businesslink.
•    Archiving content more than two years old by moving it onto the National Archives web archive.
•    A simple design refresh to enable these changes.

Was the work done internally or by a private contractor?
Internally by the web and design teams in the Communications Directorate

What other plans do you have for developing the justice website?
There are further developments planned in the near future.  With such an increase in content from a disparate range of websites, we now need to harmonise style and tone and to develop a more holistic and user-focused content proposition. This will involve some user research and testing and a review of the information architecture of the site in light of those findings. We are also working to develop new features and functionality that will improve the user experience e.g. offering a more personalised view of the site by delivering content based on a person’s job function. We are also looking to improve the search experience and to introduce the wider use of dynamic pages to surface relevant content.

Also, I am interested in the transfer of court hearing listings from the HMCS site to Justice.gov.uk and wondered if there were any plans to develop the service further?
The information is the same as that which appeared on the HMCS site – the pages have simply been reskinned with the justice.gov.uk look and feel. We are reviewing all tools and applications and how we can better integrate this type of content into the site. There are no specific plans as yet, and we’re open to suggestions.

The HM Courts and Tribunals service does publish daily case listings for many courts here, on the Ministry of Justice site. Additionally, some – not all – judgments are made available by the external Bailii initiative, which has recently been appealing for more funds.

But it’s far from anything we might call digital open justice. In fact, the licences for this courts data are limited to specific contractors, Freedom of Information requests have shown.

Courting Courtel

The Ministry of Justice site states:

“The following lists and services, Royal Courts of Justice, Crown Courts, selected County Courts, Case Archives and Legal News, can be accessed through Courtel on its CourtServe website.”

Courtel, a company based in Egham, Surrey, runs a number of free and paid-for services. It promotes itself as “an excellent example of private sector cooperation with government – in this case the Ministry of Justice – to the benefit of court users in England and Wales”.

The arrangement with Courtel is not new, but I – and others – have been asking how and why Courtel performs this role. Courtel’s website explains that its Courtserve 2000 service is “a time and money saver”.

It says the service costs “far less than you think, try it out at no charge, then wonder how you ever did without it!” How else can you get the information, it asks in its FAQ, answering itself: “Well you can always send someone down to the courts and read them off the notice boards, or try phoning! But why bother, we live in a digital world don’t we?”

According to the MoJ, which supplied information in response to programmer Mark Goodge’s Freedom of Information request, Courtel does not receive money to provide the listings, but it does retain an exclusive license.

“You have asked if any payment is exchanged for the data. The agreement between HMCTS and Courtel for the Crown and County Court lists is a concessionary Licence and no money is involved.

“You asked how the data is provided to Courtel. In the Crown Court there is secure software that allows Courtel to extract information directly from the Crown Court system. In the County Courts secure e-mail is used to transfer the data.

“You asked if the information was available to other publishers on the same basis. The Licence between Courtel and HMCTS is currently exclusive, with a rolling 12 month notice period applicable should either party seek to terminate the agreement. Any other interested publisher would need to contact HMCTS to express an interest in accessing this data.”

On learning this, Goodge submitted another request asking how this arrangement came to be and why an exclusive contract with Courtel is justified, given that section 14 of The Re-use of Public Sector Information Regulations 2005 states that:

“(1) Subject to paragraph (2), a public sector body shall not enter 
into an exclusive arrangement with any person including an
 applicant.

(2) A public sector body may, where necessary for the provision of 
a service in the public interest, enter into an exclusive 
arrangement.”

On his blog he comments:

“I’m not opposed in principle to privatisation of public services, so long as it delivers benefits to the taxpayer and the consumer. But this arrangement clearly doesn’t. Courtel are getting all the benefits of a data monopoly, while the taxpayer (via the court service) gets nothing in return as the data is being given to them for free.

“And the consumer loses out as the restrictive nature of Courtserve means that public access to the information is unduly limited and costly. (Not to mention the fact that Courtel’s contract with the court service requires them, if requested, to pass details of their subscribers to the court service. I wonder how many subscribers are actually aware of that?)

“I think this is bordering on scandalous. While other departments of government have made great strides towards opening up their data for public use, the Ministry of Justice and the court service have quietly headed off in the other direction and made access to their data less open instead. It’s time that was changed.”

Bailing out Bailii

Meanwhile, the Bailii service publishes judgments for free. Like Courtel, it also has a contract with HM Courts.

Another FoI request submitted by Mark Goodge confirmed that HM Courts paid Bailii £35,468 last year for its judgment publication service – hosted externally on Bailii’s site. Bailii also receives money from numerous legal societies and organisations, including the General Council of the Bar of England & Wales.

The MoJ told Goodge that

“BAILII is a contracted supplier of the Ministry of Justice to provide judgements to the public. BAILII do receive payment from the Ministry of Justice to assist the admin to be able to upload these judgements on behalf of the Judiciary. This payment information is commercially sensitive and has been redacted from the contract document schedules enclosed. The total sum spent with BAILII for 2010 /2011 was £35,468.

“At the moment the Royal Courts of Justice (RCJ) is the only government department who pay BAILII to publish our judgments. We provide BAILI with electronic copies of approved judgments, from the High Court and Court of Appeals. The majority of the judgements are sent on to BAILII from Civil Appeals and the High Court, plus other areas and individuals within the RCJ.

“As an example; The Administrative Court is currently required to publish all its substantive decisions on BAILII, together with any decisions in permission applications which are considered to be of public importance.”

Goodge asked whether the information supplied to BAILII also available to other
publishers on the same basis. They replied

“No, the information is available free of charge via the BAILII website. We have scheduled this requirement to be re-tendered in 2012.

“The approved judgments remain Crown Copyright. The CONTRACTOR cannot assign copyright to any recipient and must ensure within the terms and conditions of their service to the recipient, that the approved judgments shall not be further distributed, copied or otherwise transmitted without the prior approval of the AUTHORITY.”

Many lawyers enthusiastically praise the Bailii service, which has opened up free courts data to a much larger audience.

However, there are a number of limitations with the Bailii service that are important to flag up. Crucially, Bailii prevents scraping of the data, meaning that programmers cannot make the public data useful in other ways. On the Nearly Legal blog Francis Davey points out two main flaws: users are not able to make use of Bailii feeds or use Google to search it. He comments:

“If bailii adopted a more open policy on its information … I’d consider donating. As things stand (for example not being able to make use of bailii feeds or use google to search it) I’m a gnat’s whisker away from trying to persuade organisations I am a member of to stop donating to it. It could certainly gain more goodwill (and money) by being more open.”

So what?

The closed – and costly – nature of courts data is restricting legal research and analysis and public access to legal information.

The legal researcher Lucy Series has written about her experiences on her Small Places blog. She describes how she was refused information about forthcoming hearings at a County Court.

“They said they could provide me with information on what cases would be heard the next day, but no more.  It turned out they held listings for the week ahead, but they weren’t allowed to shared them with members of the public.  If I wanted to attend a particular trial, I would have to harass the poor court officer every day to find out what was coming up.  This seemed like a monumental waste of both my time and theirs.

“At first I wondered if the information was not made available because it was likely to change at short notice, or because it wasn’t collected in an easily shareable format.  But information about forthcoming hearings is made available – for a fee – through a third party website [Courtel].”

Picking up on Mark Goodge’s FoI and the revelation of the exclusive licence, she says:

“This effectively ensures that any member of the public who is not registered with Courtserve will not be able to access the court listings (except through daily harassment of the court staff).”

Series  finds that this arrangement “seems to fit within a wider pattern of a lack of transparency and open access to information in the UK legal system”.

“A system where the public have no free access to up to date copies of legislation.  Where court judgments are not always published, and yet some of these unpublished judgments manage to find their way onto third party websites (sometimes only accessible through expensive subscriptions). Even academic legal journals seem to be beset by this information paucity; perhaps a result of a heavily monopolised and technologically outdated publishing culture.”

She continues:

“I find this situation more than a little perplexing.  It would make more sense to me if the Ministry of Justice were in some way financially benefiting from the sale of the information.  Given that they are not, what benefit does the license bring to them?  The information must be shared, certainly, but it seems to me that in this day and age it would incur minimal costs to post the information they send to Courtel on their website.

“The only answer that occurs to me, is that the Ministry of Justice cannot (or believes it cannot) post the raw information on its website for data protection reasons.  By outsourcing to Courtel – who restrict the users of the information – they can ensure the information distribution is kept to a minimum without the faff of having to register court list users themselves.

“Indeed, the contract itself contains quite a lengthy data protection clause (clause 5), restricting how long Courtel may store the data for and how they may process it.  Another point in favour of this possibility, is that the HMCS website that gives the daily listings appears to have blocked internet crawlers that cache webpages (see, e.g., the Wayback machine for the HMCS site which seems to have been blocked from July 2009 onwards).  This would prevent any third party from collating data on who had been involved in court proceedings in the past.”

She adds:

“Of course, that does not mean the Ministry of Justice’s reading of data protection law is correct, nor indeed means its license is compliant with the Re-use of Public Sector Information Regulations 2005 or the ideals of Open Justice. “

In another blog post, Mark Goodge also raises the issue of the possible illegality of the exclusive arrangement with Courtel, but clarifies that his gripe is not with Courtel’s commercial enterprise:

“I don’t object to Courtel making money from the data – their Courtserve 2000 software (and even the email alert system) is clearly a value added service and they’re fully entitled to charge for it.”

However, he continues,

“…what I do object to is the fact that Courtel have a monopoly on the data and that monopoly not only makes them the only organisation able to exploit it commercially but it also prevents non-profit organisations, community groups and individuals from using the data effectively.

“I can see no reason why court lists should not be published by the courts themselves on their own website under an Open Government licence – it would cost them no more than they currently spend on giving it away to Courtel, and it would allow a much wider use than is currently possible. If Courtserve 2000 is as good as Courtel say it is, then allowing competitors isn’t going to hurt them too much. On the other hand, if it’s not as good as it’s claimed to be, then some competition will be in everyone’s interest.”

Series and Goodge have raised important points. We need to question the Ministry of Justice’s handling of courts data and campaign for its release in more open and fair formats. Private contractors like Courtel should not have a monopoly on the data.

It’s time for Digital Open Justice. I intend to research and campaign more in this area. In the meantime, I’ve set up this Google Group for initial discussion.

Please share your experiences and thoughts by joining:

• http://groups.google.com/group/digital-open-justice

With thanks to Lucy Series and Mark Goodge and members of the Judgmental project for their valuable contribution to this debate.

An updated history of super injunctions, with definitions, can be found on this page: https://meejalaw.com/super-injunctions/

*Readers by email: click title to view blog post in browser.

In November 2008, I rang the Old Bailey to try and find out what reporting restrictions were in place for the ongoing Baby P court case.

The case, in which Baby P’s mother, her boyfriend and her lodger were being tried for the 17 month old’s death, was off-patch for me as a media reporter, but I was interested in television and newspaper coverage, and the public reaction.

What’s more, comments about the case were appearing under my then-employer’s (pre-moderated) blog, which I felt sure were in breach of a court order, judging by the limited details given in other media reports. It seemed sensible to call and find out what the restrictions were, even though I wasn’t reporting from court.

In error, the Old Bailey’s switchboard operator put me through to the press room at the court (where the journalists can wait or work), which led to a bizarre conversation with an individual who, extremely rudely, told me ‘you don’t pay’ so ‘why should I send you them to you’, suggesting that I put £50 in an envelope to access the documents.

The answerer’s identity remains a mystery (he told me he had forgotten his name before hanging up). I then called the correct department who asked me to send my request by fax. After another couple of stages in which I had to confirm my status as a journalist, I finally accessed the material.

Another time, I needed the claim forms for a High Court libel case as quickly as possible, but I was unable to travel to London. These documents could not be faxed or emailed, but needed to be picked up and paid for in person. Fortunately I knew the case number and a journalist friend in the city was able to do this for me.

In Heather Brooke’s latest book, ‘Silent State’, she devotes a chapter to ‘Secret Justice’ and reports similarly odd encounters when trying to access the courts (she has also written about this issue on her blog and in the Times).

Just as I’ve experienced, she was advised she could leave her belongings in the sandwich shop across the road, in order to enter the Old Bailey – or the Central Criminal Court as it’s otherwise known. She was told not to make notes in the public gallery.

On another occasion at the High Court she had to go through several cumbersome and inefficient steps to access documents that are supposed to be accessible to the public.

Is this lengthy system justified?

“I certainly do think that such materials should be made more generally accessible, in particular court data,” says Hugh Tomlinson QC, in a conversation by email.

“I think that it should be data which has not been collected in the past, for example, case type, date of grant or discharge of any interim injunction, statements of case, skeleton arguments for hearings, any publication restrictions, date of next hearing etc.

“There is no reason why this could not be done online – like the Court of Appeal (civil) does for some information, but you need to know the case name first.”

If  the system was simplified, so that it was easier to find case name and its accompanying documentation, it could save money and be more democratic.

Brooke reports that it took “four different people in four parts of the East Block [of the High Court] just to get one document which exists most likely in electronic form and could have been given to me at no cost whatsoever and without inconveniencing four different people”.

She also cites news agency journalist James Brewster, who suggests documents should be automatically available, including the claim form, the particulars of claim, skeleton arguments and witness statements, once admitted into evidence.

More often than not, accessing court information, Brooke says, “comes down to that great British tradition of knowing the right people and keeping them sweet”.

Compare the English archaic ’round the houses’ system, to US online court publication, where case dockets and accompanying documents are published online.

The UK is left behind, with its weird traditions that create unnecessary confusion and muddle.

“We’re in the 21st century,” says Mike Dodd, editor of the PA Media Lawyer service, “[but] courts still have the mindset of Dickens”.

Media restrictions

It can be ill-informed security staff that can lead to the inconsistent messages and regulation over reporting the courts and accessing information. But restricting the press from reporting certain details often goes further than that, on the orders of the judge.

Dodd, who is also the agency’s in-house media law specialist, tells me about a Court of Appeal case in 2008 when Trinity Mirror, and various other newspaper groups, challenged an order issued in Croydon Crown Court that restricted the media from identifying a defendant on the basis it might harm his children – who were not involved in the trial. While Trinity Mirror won the appeal, it still cost them “a fair amount of money,” he says.

The Court of Appeal ruling can be found on Bailli, a public case law database funded by numerous legal sponsors. An extract:

In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed.

More recently, a media restriction order was overturned, when the Guardian challenged a Court of Appeal anonymity order for four individuals, which stated: “no report of these proceedings shall directly or indirectly identify them or any member of their families”.

In the end in January 2010 the UK Supreme Court ruled that after testing the balance of the subject’s article 8 rights and the article 10 rights of the press, “we have come to the conclusion that there is indeed a powerful general, public interest in identifying ‘M’ in any report of these important proceedings which justifies curtailment, to that extent, of his, and his family’s, article 8 Convention rights to respect for their private and family life.”

The anonymity order was overturned and the appellants were named.

Courts orders: but how do we know?

There have been discussions for the creation of a database containing court orders for media organisations, but that plan never came to fruition, not least because of the costs involved – for the media to pay. It looks unlikely to happen.

In 2007 Press Gazette reported renewed calls for such a database, after a newspaper was fined for breaching an order:

A Ministry of Justice spokesman said: “Her Majesty’s Court Service has had early discussions with the Society of Editors to scope for feasibility of a database of court reporting restrictions and investigating the options of setting up such a database so that the media can fund it.” In the interim it remains the responsibility of reporters and their editors to ensure no restrictions apply.

Journalist James Brewster, in Heather Brooke’s book, describes the reporter’s fear of missing a reporting restriction when it is given in court and unwittingly committing Contempt.

Often journalists know about court orders because they’ve been tipped off by another media organisation. “The practice is for such orders to be intimated to the Press Association,” explained the Supreme Court judge, in relation to the Court of Appeal anonymity order challenged by the Guardian.

So how are bloggers and social network users, who don’t subscribe to the PA or receive inside information, supposed to know about the orders and injunctions?  After all, the media can’t report the exact restriction, as I couldn’t in the Baby P case, because they would then be in breach of it.

Must bloggers obey court orders too?

That’s a question the courts seem to be struggling with. Malcolm Coles, who often writes about media and internet ethics, discussed the issue on his blog during the Alfie Patten media frenzy in March 2009. When Coles asked the Ministry of Justice how it intended to deal with the issue, a spokesperson told him there were no plans, despite admitting the difficulty of the situation.

The spokesman added: “It is the responsibility of those reporting cases … to ensure that no reporting restrictions apply. The maximum penalty for contempt of court is 2 years.” But he conceded this left bloggers in a ‘catch 22′ – bound by court orders they have no way of accessing the details of.

Defence lawyers in the Baby P case criticised bloggers’ activities, saying that they prejudiced the second trial. “These internet campaigns made it impossible to hold a fair trial,” they argued, according to a BBC report.

In the end the judge made a firm order banning the jury from internet research. But is this enough? How can Contempt of Court law keep up with the online age? Is there any point in granting so-called ‘super injunctions’ when a well-informed social media user can render them useless with a single tweet.

To date, the lawyers I’ve interviewed are not aware of any prosecutions that have resulted from social media users and bloggers breaking reporting restrictions. But for how much longer?

Back in 2008 when I asked the executive director of the Society of Editors, Bob Satchwell, about educating the general public about Contempt of Court he did not consider it a priority, suggesting that any policing of the internet was something of a lost cause.

He said:

The way of dealing with it is not stopping the publication, but strengthening the reminders to jurors that they must look at the evidence which is brought before them in court. Who’s to stop people in another jurisdiction putting it online? The internet is global. You cannot, by legislation, control the internet.

Opening up the courts

The next question of course, is how much the Ministry of Justice, is spending on outsourcing data and building applications, while important courts documents remain inaccessible. And why doesn’t it put more usable data online?

Commenters on the Guardian site were dismayed to learn that a Freedom of Information (FoI) query earlier this year revealed that the UK Supreme Court (UKSC) and Judicial Committee of the Privy Council (JCPC) websites cost £360,000.

I wonder then, how much is spent on ‘You Be the Judge’, a swish but slow loading (on my wifi, at least) online site that presents scenarios based on real court cases for which online users can make judgments.

Is this a useful deployment of resources, when the same public can’t easily access basic real public information, either directly or via the media? Time for an FoI into expenditure and plans for developing online resources, I think. Follow my progress here.

Keeping track

I’ve been asking various media law sites how they keep track of courts information.

• The Inforrm Blog’s collection of its courts data for regularly updated spreadsheets is manual.
• Another legal blogger told me he uses Bailli and 5RB to track media law cases, rarely using a paid-for service.
• Mike Dodd’s method? “Running about like a lunatic,” he says, adding that he has a few people who keep him informed of what’s going on.
• Paid for legal information services include LexisLibrary, Westlaw UK and, as mentioned above, PA Media Lawyer.

How to monitor courts data

For this site, meejalaw.com, I’ve identified a few ways to keep track of media law data. Here’s a quick how-to guide for keeping on top of the latest media law developments.

• This customised RSS feed, also publishing to Twitter (@medialawuk) pulls in media law news from various reliable sources, including media trade publications and legal blogs.
• The latest case rulings are published on Bailli (Queen’s Bench, here, for example). Case listings can be found on the HMCS site.
• You can follow the progress of individual Parliamentary bills, such as Lord Lester’s defamation bill, via this RSS feed or email alert.
• You can track the progress of Freedom of Information requests made to the Ministry of Justice via WhatDoTheyKnow.com via this RSS feed.

Case study: Judge Duino and the Gavel

At the Hacks and Hackers Hack Day event in Liverpool in July, one team decided to build a tool for tracking courts data.

Adrian McEwen, Donovan Hide, John O’Shea and Andy Freeney designed ‘The Gavel’ featuring Judge Duino (Do-eee-no – a wordplay on the programming software used) with the aim of making legal process data tangible.

Using HM Courts Service data they created automatic alerts – for when a case closed, for example. The aim, O’Shea, says, was to make clean, clear information available in real time.

The fun part of this was the physical aspect: an electronically controlled ‘gavel’ which could be triggered in response to different aspects of the data, but I wonder if email alerts or an RSS feed might be a more practical solution.

“I think that this project might be thought of as a very early prototype for a truly public and transparent interface with ‘law’,” says O’Shea. The developers are considering fine tuning it further, and their work can be viewed at: http://causelist.org/. John O’Shea has more detail here.

Video of the judge in action at this link or at 1m43 in the video below [Photos: John O’Shea on Flickr]

Update, 8 October 2010: Replies to my Freedom of Information requests reported at this link, including information about the cost of Criminal Justice System ‘You Be the Judge’ feature and the outcome of plans for a media database of reporting restrictions.