In February 2014 I was pleased to be invited by the Law Commission, along with my City University London colleague Claire de Than, to discuss the draft version of a new report on court reporting, part of a wider consultation on contempt of court.

The report was published on 25 March 2014 and has received some, albeit limited, media coverage. See, for example, the FT / Law Society Gazette / Press Gazette.

I won’t go into detail here (the report has a concise summary of its recommendations, quoted below), but I wanted to flag up its main points and make a few additional observations for the successful implementation of its – in my view – useful and practical recommendations.

It focuses on S4(2) postponement orders; these are specific type of restriction that orders the postponement of publication of a report of live, pending or imminent proceedings, or any part of proceedings “for such period as the court thinks necessary for that purpose“.

The report discusses the extent of these orders in some detail, raising questions over their application and ambiguity but the final recommendations focus on the recording and publication of S4(2) orders in the Crown Court; it believes that providing a list of restrictions for potential publishers will help address some of the current uncertainties and the lack of clarity with the current system.

Following a pilot, it recommends a number of practical measures, which I have annotated with my own observations:

6.1 We recommend the adoption of a publicly available online list of existing section 4(2) orders in force in England and Wales similar to that currently in place in Scotland.

This seems a straightforward and simple solution that seems to be working very effectively in Scotland.  The LC’s pilot seems effective and an easy add-on to the crown courts’ existing activity.

6.2  We recommend an addition to the standard form to make clear that where a section 4(2) order includes a prohibition on reporting the existence of the order or its terms, this does not apply to the order’s publication on the official online database

A necessary accompaniment to the proposed system. The terms of the order would not be breached if included in an online list by name (anonymised if necessary, with case number) or in a restricted access database.  This is a natural extension of what happens already. Like the report says  “under the current practice, it [the prohibition] would not apply to the act of posting a copy of the order in the court building)” (p 27).

6.3  We recommend limiting the information displayed on the publicly available online list to the name of the case in which the order has been made, and the date on which the order expires (or if the order expires on the conclusion of another case, rather than on a fixed date, then a record of this fact, and the name of the linked case).

Sensible.

6.4  We recommend that the publicly accessible list of orders be supplemented by an additional restricted database which would contain the terms of section 4(2) orders themselves.

There may be practical objections, and previous efforts to create such a database didn’t go ahead following reportedly ‘eye-watering’ estimated costs for a service operated by a commercial company (background here [£] and cited here). The database is a sensible idea, but should (a) be secure and not cost the earth  (b) be developed and overseen by the MoJ digital services team (not hosted externally) and (c) the developers should further consult the media, other types of digital publishers and data / contempt specialists about the necessary steps for registration (the report sets out initial suggestions for its operation).  An organisation like mySociety might be well-placed to develop such a system but the list and database should be hosted by a gov.uk site.

6.5  We recommend that where there are reporting restrictions in place relating to the names of parties to the proceedings, the online list will identify cases by number, with a suitably anonymised case name.

Common sense.

6.6  We recommend that for those orders whose expiry is contingent upon another event, reasonably frequent checks are undertaken by the administrator of the list to ensure that expired orders are removed from the list.

This is where I foresee practical objections being made by HMCTS / MoJ – the checking of expiry dates and the progress of linked cases is an additional task, for the courts or the list administrator. However, I think it is entirely reasonable. If journalists and other members of the public are expected under law to adhere to the terms of the order, we should be given clear and up to date information about the orders and their duration.

Practical issues
My main concern is that despite the seemingly smooth running of the pilot this sensible proposal will be blocked by administrative obstacles.

A key question for me, footnoted in the report, is who will run this list. The LC suggests (p. 32, footnote 8):

Any one of a number of public bodies or private contractors could be tasked with administering this database. This is an operational matter and outside the scope of this report’s recommendations.

However, the operational running costs appear to have been the main block the last time a reporting restrictions database was proposed. As the Scottish list shows (set up within a matter of hours and it takes a couple of hours each week to maintain), a list can be implemented cheaply, easily and without fuss (and the pilot suggests that there would be no more than 120 orders per month across the whole of England and Wales, p 25). A database is slightly more complicated, but shouldn’t cost ‘eye watering’ sums. It would make sense to task its development to government digital services (see the MoJ digital services team blog for other activity around opening up data) and keep it as cost and time effective as possible.

According to the report, “publication of court reporting restrictions is an issue which is currently under consideration as part of wider plans to replace Court Service IT systems” (p 35). However, this could take a long time and is a much broader endeavour than that discussed in this report. I agree with the authors of the report, that the LC’s proposed “system of uploading material for publicising section 4(2) orders remains a valuable interim measure in the short term“.

And, eventually, it could be rolled out more widely.

In the longer term, the system proposed here could represent an important stepping stone towards a more comprehensive system for the publication of all court reporting restrictions, which would clearly be a desirable final outcome. (P35)

One of the main problems with the current communication of courts activity is that there are inadequate data monitoring procedures and inefficient systems for court record keeping and public accessibility, which vary between different types of court. This can be partly explained by the part-privatisation of public legal information, which relies on external providers to disseminate public courts information. In an age of cheap and fast digital publishing, it is essential that this changes over time, towards a more open and fair system, which provides information at source and recognises a public right to receive information about daily courts activity. This report makes valuable recommendations which are a step in the right direction.

I’ll be writing about this, and the recording of restrictions in more depth, in due course (and conducting some research in Australia on ‘suppression orders’). Please free to leave comments below, or share thoughts by email.

*The proposals in the bill do relate to different recommendations made by the Law Commission in a previous report; for the full context see Criminal Justice and Courts Bill – Commons Library Research Paper pp. 42-44 and 47, 20 February 2014.

Upcoming conference, 17th September 2013, Millennium Knightsbridge Hotel, London, UK

The ultimate review of key developments in the field of media law, featuring analysis of the impact of recent cases, such as: Leveson, Axel Springer/ Von Hannover (No.2) and Spelman v Express Newspapers.

Attendees will also benefit from discussion of the latest crucial issues, including:

• Contempt and reporting restrictions
• The post-Leveson landscape
• The defamation bill
• Privacy

For the agenda and to register go to:

http://www.ibclegal.com/FKW82385MJL

Quote VIP code FKW82385MJL and save 10%

Ignorance is no defence, but given that Starmer suggested that a leading QC hadn’t thought about the sophistication of the issues (a charge which the lawyer in question is robustly defending – on Twitter, of course), what hope for the public at large?

I’ve been interested in the idea of public legal education (PLE) for social media users for a while (see my blogger project in 2010, for example) – initially around civil law (defamation, privacy, contempt) and more recently, criminal offences (Malicious Communications Act 1988; Communications Act 2003; Contempt of Court Act 1981).

The court order issue, mentioned on Radio 4 this morning, is the really interesting one for me. In 2010, I wrote about the lack of clarity around blogging and reporting restrictions; the situation hasn’t much improved since then, although people are probably more aware of the risks through increased media discussion.

Jon Harman (@colmmu) is also interested in this area, and has posted some quick thoughts on his Tumblr blog:

On one hand whilst “ignorance” is not a defence, do we have an education system currently capable of raising digital literacy and the laws that relate to it, do we need to do more in public legal education or even state education given that most people do not actively seek to break these laws, they are just unaware? When we had restricted systems of publishing we had mechanisms to filter and check, we had the basis of journalism training wedded to media and publishing laws – but that’s not possible in this new landscape

His suggestion? A legal Siri … Read in full here.

Image: courtesy of @yiyinglu*

Lord Justice Leveson’s enormous task is to examine the culture, practices and ethics of the media, with a special emphasis on the “press”.

This is because it was serious concerns about the behaviour of UK national newspapers that instigated the national Inquiry into media relationships with the public, the police and politicians.

A second part, if takes place, will more specifically look at “unlawful or improper conduct within News International, other newspaper organisations and… other organisations within the media, and by those responsible for holding personal data”.

Given the Inquiry’s remit, the media core participants are national newspaper groups and only a small amount of oral evidence has been taken in regards to online-only media: blogs, global websites, search engines and social media services (eg. representatives from Google and Facebook, Camilla Wright of PopBitch, and the legal blogger David Allen Green).

Understandably, during 26 weeks of sittings in courtroom 73 of the Royal Courts of Justice, Lord Justice Leveson has focused on the issues that led to the Inquiry and concentrated on national newspaper brands. He now has to make recommendations “for a new more effective policy and regulatory regime which supports the integrity and freedom of the press, the plurality of the media, and its independence, including from Government, while encouraging the highest ethical and professional standards”.

It is at this point that one might consider the giant tweeting/Facebooking/Googling elephant in the regulatory / legal room, albeit outside the Inquiry’s official remit.  While Lord Justice Leveson’s recommendations will attempt to deal with the abuses of power that led to the Inquiry, what about the other digital media sphere that becomes ever more powerful (but with less clearly identifiable agents of power)? The one where circulations aren’t declining and business models collapsing …

It is not simply a question of regulation, it is also one of protection, for citizens using this media in an uncertain legal and regulatory landscape.

How will online media be controlled in future?

“Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th” Max Mosley, written submission to the Leveson Inquiry, July 2012 [PDF]

For the ordinary person it is social media rather than the “press” which is likely to have a more immediate and direct impact on his or her own daily life (for usage stats see: Pew 2012; Ofcom 2012) – at best, online interaction is positive experience garnering new social and professional connections, at worst, it leads to mucky disputes and harmful publications.

Instantaneous publications can cause chaos in both work and social spheres. In some cases, an online communication can lead to criminal convictions or expensive civil litigation.

Legal risks

There are numerous legal risks for Twitter users tweeting from and to the UK, as Luke Scanlon has laid out in this excellent summary on Out-Law.com (one of the best online legal resources around).

But are existing laws and regulatory models really suitable for dealing with the troublesome and damaging communication of 2012, which might include racist content, defamatory allegations, prejudicial statements about a court case, privacy infringements, data protection and copyright breaches (etc.)?

In a comment piece for the Guardian about the ‘Twitter joke’ case, Professor Ian Cram found that “judges and lawyers expend much intellectual energy on shoehorning new practices and behaviours into existing legal categories” and identified a challenge, to “show why tweets, blogs and other conversational forms of electronic speech should lie beyond the reaches of traditional criminal offences”.

While the High Court unanimously allowed the appeal in Chambers v DPP ([2012] EWHC 2157 (QB)), Cram is cautious about the ruling:

“Our high court is declaring alongside [Judge Frank] Easterbrook that there is no law of cyberspace; there is no law of the horse. Its disinclination to evaluate the appropriateness of legal concepts and criminal offences developed in the pre-Twitter era is disappointing, even if largely to be expected.”

Similarly, Jacob Rowbottom has raised concerns  in the Cambridge Law Journal and argues that the principles of European free speech jurisprudence “do not give sufficient protection to casual conversations and ‘everyday’ expression”.

Regulatory systems

What about the existing regulatory systems? The short answer is that they are numerous and messy. As Lara Fielden sets out in a recent report for the Reuters Institute for the Study of Journalism, there are numerous regulators dealing with different types of content in an incoherent fashion. In her view, there is a “conflict between converging media content and static standards regulation”.

“… such regulatory incoherence risks undermining public trust across the broadcast, print, video on demand, and online media platforms, and public confidence in the sources of information on which citizens depend in order to make informed, democratic choices…”

The legal and ethical practice around online media is fast-moving but little has been recommended in terms of its management and protection for users and consumers. There has been some noisy discussion around “trolls” (news reports wrongly conflated entirely different legal cases with the provisions of the Defamation Bill; as set out by Francis Davey here; Padraig Reidy here).

Max Mosley, whose primary legal opponent was a national newspaper, has made some very broad-ranging recommendations for the regulation of the online sphere, in a submission to the Leveson Inquiry. He proposes a Tribunal for regulating the press, but adds that “…[E]ventually, the Tribunal should cover all activity on the internet in the UK…”

While he prioritises a tribunal for the press [PDF], before one for the internet (press regulation can be reformed quickly, but the internet would require “complex legislation”), he suggests that eventually: “as part of the UK internet statute, the Tribunal’s remit would be extended to cover the internet in the UK. This would include a power to suspend an individual’s access to the internet in addition to the Tribunal’s other relevant powers …” (He also has ambitions for EU-wide law and international conventions, but UK statute is his starting point) [p 8].

In his opinion, “…it must be able to deal promptly with internet problems right down to local level – for example bullying among schoolchildren on Facebook” [p 13]:

“There is a tendency to see the internet as ungovernable, a medium outside the law. This is nonsense. In time the rule of law will apply to the internet as it does elsewhere. National laws followed by international conventions are bound to come.

“Our new regulator must be able to offer remedies as and when they become available (as some already are). Although current problems with some sections of the press are serious, it is no good setting up in the 21st century a system which solves only the problems of the 20th. Our regulator must have the ability to deal with the internet, right down to micro level. This will increasingly be where the problems lie.” [p 13.]

It’s an ambitious remit for a national tribunal and Mosley’s proposals, if taken forward, would be likely to invoke criticism in various quarters; a vigorous consultation beyond the Inquiry would be needed to address these concerns.

Lord Justice Leveson has a big enough task thinking about news media, in particular the newspapers and their websites. These difficult questions around social media regulation and the “law of cyberspace” are more likely to fall to the next major review of the media, whenever that may be.

* This illustration is published with the kind permission of Yiying Lu, the designer of Twitter’s famous ‘fail whale‘. In fact, the original piece, Lifting A Dreamer, featured an elephant.

“Thinking of putting forward a session at #TAL12 on hyperlocals and crime. Reporting it, legal stuff and why you should do it. Of interest?” @ed_walker86

The small group of hyperlocal publishers discussed their individual approaches to crime reporting, and it raised – in my view – pertinent questions about best practice and ethics in the digital era, as well as access to police and courts information.

Delegates had already been briefed on contempt of court by David Banks in a morning session, so this session focused on the how and why, rather than the legal parameters [for a quick and cheap guide to reporting criminal courts, you could look at Sarah Chapman’s e-book; for a more in-depth advice see McNae’s Essential Law for Journalists].

Ed suggested some of the reasons we might report courts on local news sites, including reader interest and community benefit (my paraphrasing – he might like to elaborate in comments below).

In our discussion, hyperlocal publishers described how they reported crime and some of the issues that had cropped up. One publisher said that since they couldn’t attend court (an issue of blogger manpower), they waited for a result before reporting on a case. A couple of people described occasions when they were asked to remove information relating to specific cases, by individuals named in a published crime report.

A few specific incidents particularly interested me, which I’ll follow up and possibly report in more detail in due course – or please add comments below, if you’ve got relevant examples to share.

In view of the concerns being raised, I mentioned our ‘Open Justice in the Digital Era‘ initiative at the Centre for Law, Justice and Journalism (CLJJ), City University London. In a forthcoming publication, a range of journalists, lawyers and academics discuss the path ahead for the digitisation of courts and legal information.

It will include founder of Talk About Local William Perrin’s ‘Courts Transparency Charter‘, which has sparked some debate around the issues of privacy, rehabilitation of offenders and data protection.

Following the publication of the working papers, the CLJJ is planning to discuss some of the proposals in more detail, to feed into recommendations for the Ministry of Justice and the judiciary and other relevant bodies.

We’d love to hear from hyperlocal publishers. The session on Saturday, at least, indicated that there might be some divergence from a typical journalistic approach (due to resources and mission of the sites) and it seems sensible to include these views in any discussion going forward.

Please contact me via:

• jt.townend [at] gmail [dot] com (for Meeja Law related inquiries)
• judith.townend.1 [at] city.ac.uk (for open justice project inquiries)
• More information about the open justice initiative at bit.ly/openjustice

Or leave a comment below! Thanks to the organisers, Talk About Local and the online community noticeboard n0tice, for an excellent and thought-provoking day.

There was a parallel session on the ‘Hyperlocal Alliance‘ which I missed, but understand that it picked up on the theme of hyperlocal regulation, which I covered in my last post and Damian Radcliffe covered here on the Democratic Society blog.