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.

He has since received an update from the courts service / MoJ, which has confirmed that the full list was released in error. Significantly, it said:

We believe the majority of the information in the Court Lists is exempt from disclosure under Section 32 (Court Records) and Section 40 (Personal Information) of the Freedom of Information Act. We also believe provision and publication of sensitive personal data may also breach The Data Protection Act. There are also issues around ensuring the appropriate retention and disposal of information. Finally there may be some information whose release is prohibited by statute or where a judge or magistrate will have imposed a reporting restriction.

Jonathan Baines has blogged about the situation and the wider context here, concluding:

While distinction should be drawn between a “full” list, such as was inadvertently disclosed to Richard, and “noticeboard” lists, habitually stuck up outside the court room, the points raised by this incident exemplify some crucial considerations for the development of the justice system in a digital era. It seems clear that, even if a court were permitted to this or similar information, the re-publication by others would infringe one or all of the SO(A)A, DPA and MCA. What this means for the advancement of open justice, the protection of privacy rights and indeed the rehabilitation of offenders is something I hope to try to grapple with in a future post (or posts).

On Twitter, William Perrin, a member of the Government’s Crime and Justice Transparency Sector Panel, points out that the “issue has to be taken in the round, rather than in isolation on DPA alone“. He lists some of the competing interests here.

The other big question that arises is who should be able to access full lists, if at all? A commenter on Taylor’s blog believes:

Thoughts/suggestions/links welcome. The discussion continues.

In March 2011, the Daily Mail and Sun were found guilty of contempt of court for publishing online photographs of a defendant posing with a gun at the start of a murder trial.

It was, the Attorney General, Dominic Grieve, outlined in a speech at City University London last week, “the first time” the High Court “had been asked to consider whether an online publication was a contempt of court”.

I find it astonishing it took over 12 years after the birth of Google for such a case to be brought.

There are likely to be far more breaches, either by mainstream media publications pushing legal boundaries or by thoughtless social media users, than cases brought.

It is this latter category that interests me: how is the public educated about contempt of court? After all, as I’ve argued on this blog before, we’re all publishers now.

Jurors receive special instruction, as they did in the murder trial described above, but information outside the courtroom is disseminated rather randomly.

It relies on mainstream media reporting the details of contempt of court cases. Thanks to national media interest in this recent case, more people now know not to upload a film of yourself dancing on the chairs in the court lobby.

I raised the point about lack of legal education on Twitter, and someone immediately replied:

“The same problem applies to any area of law and the wider public (eg, copyright). Ignorance of the law cannot be used as excuse!”

It’s a fair point that anyone can google for a definition of contempt, but I suspect many breaches – not necessarily publicised through prosecution – are committed by people who don’t know that they need to look up the law before writing a contemptuous update on Facebook or Twitter.

Blog and online news comment moderators are likely to have encountered widespread ignorance of contempt.  A recent survey conducted by YouGov for Nominet attempted to quiz the public on their online legal knowledge with questions addressing injunctions and active proceedings, but I’m not convinced we can deduce too much from its findings about ‘accidental outlaws’ as I’ve explained here. Further surveying in this area would be a useful exercise.

Various breaches of contempt of court online have been highlighted by the courts: in November contempt charges against a individual tweeting during the Vincent Tabak trial were dropped, while juror Joanne Fraill became the first person to be prosecuted for contempt of court for using the internet during a trial last June.

In regards to the latter case, Grieve said:

The case highlighted important principles and again that the internet does not provide some form of immunity from prosecution.

Grieve’s speech and the responses in the Q&A afterwards repeatedly emphasised that “bloggers are not immune from the law” and are as much subject to law of land as professional media publishers.

It would be helpful, then, for the Attorney General to consider how the public might be better informed about contempt. One Guardian commenter argues underneath David Banks’ excellent article about online contempt last month that the education system could make better provisions, for example.

You can read Grieve’s full speech here. The legal blogger Carl Gardner has provided an extremely useful annotated version here, indicating the Attorney General’s deviation from script.

First up, libel. A number of cases and articles to flag up:

• Meeja Law>> Ukrainian businessman’s case against a Ukrainian newspaper has been thrown out of court
• Inforrm>> A brief discussion of ‘libel tourism’ in its weekly round up
• Inforrm>> Jury Awards in Defamation Cases in Ireland – Joseph O’Malley
• Press Gazette>> Libel damages for Newsround presenter from Indy
• Index on Censorship>>Four year battle ends for Labour Home Bloggers
• Media Guardian>> Real Climate faces libel suit
• Media Guardian>> Court rules that newspaper does not have to identify commenters
• Inforrm>> Libel, Privacy and Forgetting: Claims by Rehabilitated Offenders – Hugh Tomlinson QC
• Private Eye>> “The most sued man in Britain”
• Press Gazette>> Sikh Holyman libel tourism case finally thrown out
• Press Gazette>> Turkish PM accepts substantial Telegraph libel damages
• Simon Singh>> Despite claims to the contrary, CFAs did not help free speech in BCA v Singh
• Law Gazette>> Lawyer wins £10,000 damages from Solicitors from Hell owner

Court access

• Media Guardian>> Court allows journalists into care hearing

Contempt

• Press Gazette>> Mail and Sun found guilty over gun pics contempt
• UK Human Rights blog>> Warning for bloggers and tweeters as newspapers found guilty of contempt of court
• Media Guardian>> Full judgment: Attorney general v Associated Newspapers and News Group Newspapers

Julian Assange

• Thinq>> WikiLeaks’ Assange applies to trademark his name
• Liberal Conspiracy>> Assange goes off deep end (contains half the Private Eye story)
• John Kampfner>> Julian Assange and the Big Picture

In other Wikileaks news, and on a far more grave note, it’s alarming to learn that Bradley Manning has been charged with aiding the enemy, which his lawyer says carries with it the risk of the death penalty.

Phone hacking

• Media Guardian>>Phone-hacking libel claim contested by Metropolitan police
• Independent>> Sheridan’s lawyer claims phone may have been hacked

FoI

• Index on Censorship>> Royalty free Freedom of Information
• FoI Man>> Are journalists paranoid about FoI?

Misc

• Journalism.co.uk>> European parliament delays vote on Hungary’s controversial media law
• Independent>> Stephen Glover: The witch hunt at the Telegraph will backfire (and see Private Eye here)
• A bit of fun to accompany new site http://churnalism.com: Tom Scott’s Journalism Warning Labels

Tips & tools

• Colin Meek & I have written an advanced guide to Twitter research

Events

Meeja Law is pleased to be supporting IBC’s upcoming Privacy & Defamation Conference on 15 March 2011:

From super-injunctions to secret recordings; from cost shifting to Clift; and from online infringements to official secrets: join some of the country’s top media lawyers to discuss the year’s most challenging topics at IBC Legal’s 18th annual Defamation & Privacy conference.

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

If so, the steps below would give a quick recipe for finding defamatory statements or Contempt of Court breaches:

1. Pick one famous celebrity, who is the centre of online gossip or is known to have taken out an injunction
2. Google their name
3. As you type their name, said rumours will be begin to appear as ‘suggested’ search terms, with related articles appearing in the results.

(NB: Google Instant results can be turned off, but Google suggested search terms or ‘auto-complete’ cannot).

There’s also the matter of ‘back-end search’. Bloggers will be aware that they can view the searches that bring readers to their sites, via their blogs’ administration control panels. Are those ‘publications’?

In the High Court in July 2009, Justice Eady ruled that Google, as a facilitator, was not liable for defamatory search ‘snippets’ that reproduce information from other sites. He acknowledged the lack of guidance in this area, as Out-Law.com reported:

“There appears to be no previous English authority dealing with this modern phenomenon,” wrote Mr Justice Eady. “Indeed, it is surprising how little authority there is within this jurisdiction applying the common law of publication or its modern statutory refinements to Internet communications.”

• Judgment on Bailli: Metropolitan International Schools Ltd. (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & Ors [2009] EWHC 1765 (QB) (16 July 2009)

But there’s a difference between search ‘snippets’ and the example of Google auto-complete; with the latter it is Google that provides the suggestion text (via its users).

I’ll be looking into this further and asking lawyers what they think, but in the meantime, any (legally safe) comments would be welcomed.

(Hat-tip for the idea: @amonck on Twitter)