Contempt and the internet
1 April 2006
Back in 1994, ITN, the Daily Mail and Daily Express found themselves defending contempt of court proceedings for broadcasting or publishing material about an arrested suspected IRA terrorist. The court dismissed the application, reasoning that publication had occurred nine months before the trial, and there was a single broadcast and a small number of newspapers, so the requirement for contempt of court ie that there be a substantial risk that the course of justice in proceedings would be seriously prejudiced, was not satisfied.
11 years on, the widespread and permanent availability of archive material on the internet means that publication is no longer as ephemeral. As the Attorney General, Lord Goldsmith, warned late last year, there is now a substantial risk that jurors could go online during trials and access archive material, thereby creating a risk of prejudice to a fair trial. Jurors could find themselves in contempt of court for accessing such material.
Newspaper editors will be particularly concerned that they could also be held in contempt of court for making such material available. Lord Goldsmith recently suggested that even news items that are originally not prejudicial to a trial may become so if a case then comes to court at a later date.
Earlier this year, however, the Lord Chancellor, Charlie Falconer, intimated to media lawyers that he thought that there were only two circumstances in which there would be a problem with online archive articles: where the material actively encouraged the reader to search specifically for suggested archive material; and where the nature of the case meant that there would inevitably be problems with archived coverage.
Whatever the speculation, the law of contempt looks likely to be tested by the upcoming trials of the suspected July 21 London terrorist bombers. Despite a warning not to publish images of three of the suspects when they appeared in court earlier this year, various broadcasters defiantly broadcast CCTV pictures of some of the accused and an artists impression of one of the suspects, Yassin Hassan Omar.
Newspaper editors and media lawyers will be watching to see how the courts react to the broadcast and publication of archive material and the associated risk of prejudice to a fair trial when the trial eventually comes to court.