The continuing threat of contempt

THE publisher of GQ magazine was recently fined £10,000 in a case that reminds us contempt of court remains a serious legal threat to journalists.

GQ was found guilty of contempt last year after they published an article by US journalist Michael Wolff during the phone hacking trial of Rebekah Brooks.

Last month they were fined £10,000 for the offence, which is pretty low for contempt fines – courts have unlimited powers of fine for contempt. Those of us with long memories know The Sun set the record when it was fined £80,000 for contempt and it’s then editor Kelvin McKenzie was personally fined £20,000 (and that was in the ’90s, so allowing for inflation that would be an even more savage fine today.

The GQ article was a piece of commentary, and it was run in the magazine during the trial itself. It also included certain information that the jury had not been told about during the trial.

The contempt proceedings are reported by the Guardian here, and last week’s hearing to set the fine can be found here.

Some points about the case worth noting:

Firstly, journalists will often point out that jurors are warned not to do Internet research about a case and so any juror finding the material must have ignored that warning. That sounds logical on the face of it, but in practice that is not how things work.

This was a contemporaneous report, not something sitting in GQ’s online archive that a juror had to unearth. It was published during the trial and was trailed in the front page of the magazine.

Jurors are warned not to do research, but they are not told to avoid the daily reporting of proceedings. Fair, accurate reports of the day’s evidence are not a contempt risk, so long as they stick to what the jurors have heard or seen in court that day. The GQ article went beyond that and included information the jury had not heard as well as suggesting Rebekah Brooks was a disreputable woman.

Any commentary attacking the character of a defendant during trial is a real risk of contempt, unless, of course, it was given in evidence during the trial and so would have been heard by the jury.

Secondly, even if the material was published before trial and unearthed by a juror ignoring the judge’s warning, the publisher could still be prosecuted. The Attorney General and the courts take the view that the publisher is wrong for putting it there and the juror is wrong for looking for it, so both could be prosecuted.

Finally, it illustrates the perils of ‘comment’ journalism, which is very popular at the moment. In many areas it is completely risk-free, but running commentary on a live court case that is being tried by a jury is fraught with danger.

This threat to fair trials posed by prejudicial online material is one of the reasons we have seen an increase in the number of contempt prosecutions in recent years. The last Attorney General, Dominic Grieve QC warned when he took office that the so-called fade factor, the idea that prejudicial material published at the time of a crime was safe because it would have faded from a juror’s memory by the time of trial, no longer held true in these days of searchable online publication.

The current Attorney General, Peter Wright QC, does not seem to share quite the same enthusiasm for prosecution as his predecessor, but the GQ case should serve as a warning to editors that he is prepared to prosecute where publications overstep the mark

GQ were able to point to mitigating factors which helped reduce their fine. They had taken legal advice over the article, so it was not a case of them being reckless about contempt, even though they made the wrong call on the day. They withdrew thousands of magazines from circulation and pulped them when the legal problems with the article became clear. They also paid the AG’s prosecution costs of £50,000.

If you want to avoid contempt of court, you could start by reading my post on doing just that. It remains by far and away the most-read post on this site, which perhaps shows how worried journalists are about it (although in reality libel is much more frequent and potentially more expensive).

In the long run though, I wonder how long contempt can try to hold back the tide of prejudicial publication in high profile trials. You only have to take a brief look (though definitely not if you are a juror in the case) at some of the social media postings about the trial of Adam Johnson to see that the law is struggling here.

You might argue that no rational juror would take any notice of social media blowhards with minimal followings. But some of the people commenting are well-known themselves and clearly know nothing of this area of law (and why should they) or else do not think it applies to social media.

They are wrong, but it will take a prosecution to hammer home that message. If the Attorney General is prepared to prosecute a newspaper with 50,000 readers, how can he justify not prosecuting someone with a million Twitter followers?

Police Harassment Warnings – Reporters Beware

THE Independent Police Complaints Commission has just upheld a decision to issue a reporter with a harassment warning in a case which should worry all investigative journalists.

Croydon Advertiser chief reporter Gareth Davies contacted Neelam Desai by email and in person following her conviction for frauds totalling £230,000.

Desai claimed the contact was more widespread, but the Advertiser is adamant only two contacts were made.

Davies was later visited by three officers from the Metropolitan Police who issued him with a Police Information Notice, also knows as a harassment notice.

Davies and his paper complained about this to the Met, and to the Independent Police Complaints Commission. Both the Met and the IPCC have found nothing wrong with the decision to issue the notice, you can read the coverage in UK Press Gazette.

At the time of issuing the notice the Metropolitan Police issued this statement:

“The harassment letter was issued by a local Safer Neighbourhoods team in response to a number of reports from the woman, who felt she was being harassed. The officers did this to ensure that the reporter was fully aware that allegations of harassment were being made against him.

A harassment warning letter does not constitute any kind of formal legal action, is not a court order and does not represent any form of conviction or caution. When a harassment warning letter is issued, there is also no implication that the alleged harassment has taken place.”

What I think is particularly disturbing about this case is the way in which such notices can be issued and the lack of an effective right of appeal.

I looked around the for statutory basis for a PIN and, frankly, struggled a bit and that is because they do not have any statutory basis. It appears to be a power that police have taken upon themselves.

This has been the cause of some concern and was the subject of a House of Commons report in March this year.

If you look at the conditions for issuing such a notice listed there, they are:

” there has been a “course of conduct” (not just one event); and

the perpetrator knows or ought to know that their conduct amounts to harassment.”

There may in this case have been a ‘course of conduct’ in that two approaches were made to Desai. However, I would be very surprised if there was a single journalist in the country who ‘ought to know’ that one email and one approach in person would amount to harassment.

If that is the case then pretty much every investigative journalist in the UK should be served with such a notice. If this logic were to be applied elsewhere, criminals, con artists and rogue traders nationwide will be able to get journalists off their back by going down to their local police station and complaining about harassment.

The other issue, over which there is some dispute, is the effect of a PIN. It has been suggested that such a notice will appear on a DSB (formerly known as a  CRB check) into a person’s criminal record. Clearly this is a very serious matter, though a spokeswoman at the IPCC suggested that it was not the case that such notices would always appear.

What is disturbing is that the only avenue of appeal is to the force issuing the notice, and then to the IPCC, which in itself does not reinvestigate the case.

There are no doubt many cases where harassment notices are a very important tool for the police in preventing harassment. I do not think the intent in creating them was to allow convicted criminals to evade legitimate inquiries from a journalist.

Any readers of this site will already know that there are myriad laws in the UK that make a journalist’s job that much more difficult. Here is yet another.

The UKPG has set up an online petition calling for the withdrawal of the harassment notice issued to Gareth Davies.

News websites – take care with comments, ECHR ruling

NEWS website operators need to take care, following a judgement in the European Court of Human Rights.

This was the final appeal by an Estonian news site called Delfi, which took the case to the ECHR after it was found liable for third-party comments placed upon its site. The appeal claimed Estonia had failed to protect its Article 10 rights to freedom of expression by allowing such liability. The judgement can be read here – http://t.co/D1IPjE3Ltp

The case arose after the site carried reports of ice roads to islands off the coast of Estonia being damaged by the activities of a ferry operator. Some of the comments below the story from readers were aimed at the ferry company directors and amounted to libel and hate speech.

The Estonian courts held Delfi liable for the comments because of its failure to promptly remove these comments when notified of them.

The European Court of Human Rights rejected the appeal. It said Delfi by running the story had invited the comments and, knowing this was a controversial issue, ought to have been quicker to act when notified of a problem.

The implications for UK news sites do not immediately seem apparent. It is already well-established practice here that where comments are unmoderated, liability only occurs where a publisher fails to remove material once they have been notified of it.

Most news sites operate post-moderation and remove comments or other material that is flagged up to them.

However, what the Delfi judgement does suggest is that sites need to be prompt to remove. This could have a chilling effect on sites in receipt of a complaint where there is some dispute about the meaning of the comments.

Many websites already, understandably, err on the side of caution and take down material upon complaint. This judgement only reinforces that policy and inevitably this will lead to material that is not actually legally actionable being removed. Determined claimants will, once again, be able to stifle legitimate publication by way of legal threats.

I also think Google, Twitter and Facebook should keep an eye on judgements like this. The Delfi judgement says that it does not apply to social media. If I were in their management, I would still be concerned about the ‘direction of travel’ of the European judges.

They’re off – quick guide to the rules of election reporting

THIS is going to be an interesting few weeks as we approach the general election and coverage will be scrutinised by the various parties as never before.
If you want to stay the right side of the law here is a quick guide to the various law that could cause you difficulty.
This is an amended post I ran five years ago on an old blog, but a lot of people found it useful, so it bears repetition.

Firstly, libel, it’s always with us, but elections are that special time when candidates lay into each other with abandon and occasionally say something defamatory. Remember it is no defence to say you are simply reporting what someone else said (but see below). Anyone who repeats a libel is potentially liable for it and a defamed candidate may decide to sue the relatively wealthy media outlet that has repeated the libel rather than the relatively poor opponent who originated it. Beware accusations of racism, fascism and plain old lying.
 
However, if you are reporting remarks made at a public meeting, or press conference, then you have a defence of qualified privilege, so long as you are reporting fairly, accurately, on a matter of public interest and without malice. Don’t get overly worked up about malice – the malice of the speaker does not ‘infect’ your report of their speech and has never yet destroyed a defence of qualified privilege mounted by a media organisation in these circumstances.
 
False statement about election candidates. Section 106 of the Representation of the People Act 1983 makes it a criminal offence “to make or publish a false statement of fact about the personal character or conduct of an election candidate, if the purpose of publishing the false statement is to affect how many votes he/she will get.”
 
The false statement must be statement of fact, not opinion. It is a defence to show at the time of publication you had reasonable grounds for believing the statement to be true. A journalist who published false claims that a candidate was homosexual was fined £250 in 1997. Note that it is no longer defamatory to say that someone is gay (unless it implies they are dishonest by concealing their true sexuality) but it could contravene this law. The reason being that if the voters included those whose religious beliefs cause them to hold anti-gay views, then such a statement could affect turnout for the candidate.
 
The 1983 Act also makes it an offence to publish a false claim that a candidate has withdrawn from the election if you know the claim is false and it is being made to promote the election of another candidate.
 
Impartiality of broadcasters. The Ofcom code and BBC Editorial Guidelines have detailed guidance on achieving impartiality. Several radio stations have been fined by Ofcom after presenters declared political allegiance on air.
 
Exit polls. Section 66A of the 1983 Act makes it an offence to publish the results of an exit poll before polling has finished. The reason being if the exit poll reveals a runaway winner it may discourage people from voting an thwart the democratic process. It is also an offence to publish a prediction of an election result if it is based on such a poll.
Those using social media to gauge how people are voting need to be especially careful here. It might be technically possible to make predictions based on hashtagged tweets etc and to map how the vote is going. Make sure you do not publish anything based on these metrics on election day before the polls close.
 
Election counts. Admission to the count is the responsibility of the returning officer. There is no national media policy, so best make contact early to make sure of arrangements for the night.
 
Social Media. This election will be as hard-fought on the battlefields of Twitter and Facebook as it is on the street and we have already seen the early skirmishes.
While the behaviour of the various parties may leave much to be desired, don’t get dragged into it as a journalist. The laws above apply just as much to your social media posts as they do to your print or website publication.
Enjoy the race, but let’s be careful out there.

Worrying orders of the court

A CASE in the magistrates court on the Isle of Wight should cause concern for reporters covering the courts.

The case, detailed here in Hold the Front Page, concerned neglect of a child, and at an earlier hearing magistrates had imposed a S39 order under the Children and Young Persons Act 1933 anonymising the child.

This has the effect of anonymising the mother of the child as well, because you cannot practically report the case in such circumstances and name the mother, because it will lead to the identification of the child.

The Isle of Wight County Press wanted to challenge the order, as it is usually accepted that very young children, in they case they were one and two, are too young to be affected by negative publicity and do not need such an order to be made. This is set out quite clearly in the Judicial College’s publication – Reporting Restrictions in the Criminal Courts – every court reporter should have a copy of it.

However, as is detailed in HTFP, the reporter in court was ‘put off’ by the clerk who said there were no new facts to warrant reconsidering the order. Note to reporters – do not be ‘put off’ insist on the court at least considering your request.

In my view what is concerning about the case though is not the court’s failure to hear the paper’s objection, but it’s reasons for imposing the order in the first place.

The magistrates placing the order were concerned that online publication mean that a very young child might be subject to adverse effects of publicity at some time in the future.

This line of reasoning is not new. I have heard it expressed now a number of times by judges and at Law Commission seminars. There is clearly a concern that the cliche of today’s newspaper being tomorrow’s chip-wrapper no longer holds true and that online archives are changing attitudes.

I expect this issue to emerge again and again in years to come and the media need to come up with a good answer, or the courts will continue to shut down their reporting.

My thanks to Rob Preece @RobPreeceOnline for pointing this case out to me.

Getting a defendant’s address

This is a quick post on what to do if a court is obstructive in providing details of a defendant, including their name and address.

In the various training sessions I carry out for media, this is a fairly constant complaint – that magistrates, judges and court staff are sometimes reluctant to give reporters access to very basic details about a defendant.

There are some very limited circumstances in which a court can restrict reporting of some details about a defendant, but these are exceedingly rare, and in any event should be enforced by the relevant court order, allowing for representation from the media.

This is not the situation I am talking about here. I am told by many reporters in different parts of the country that when they ask for a defendant’s address in particular, they are told that the court will not provide that information even where there is no legal reason whey they should not do so.

Any judge, magistrate or member of court staff behaving in such a manner is wrong and here is why.

Firstly, it is contrary to the principles of open justice. In normal proceedings everyone is properly identified – defendant, witnesses, judges, magistrates and yes, even the lawyers.

Secondly, a defendant’s address is part of his identity, it differentiates him from other people of the same name. This was stated very clearly by the Record of Liverpool David Clark, in R v Carroll in 2000, where a defendant fearing reprisals wanted his address to be withheld.

Thirdly, a court behaving this way is acting in defiance of its own rules on reporting restriction. Any reporter facing this situation should refer the court to this document – Reporting Restrictions in the Criminal Courts – which sets out their obligations.

See page 23, which explains the requirements on the courts to make lost available and that, “At a minimum the lists should contain each defendant’s name, age, address and, where known, his profession and the alleged offence. Courts will not breach the Data Protection Act 1998 by providing journalists with such information.”

It is perfectly clear what the courts should provide. Any judge or magistrate who objects to providing this information really ought to take the matter up with the Ministry of Justice and refrain from restricting information on a whim.

If you want me to train your staff in challenging obstructive courts, and other media law matters, contact me at davidbanksmedialaw@gmail.com

Journalists in the dock

EDITORS have always had many responsibilities but one that perhaps not everyone appreciates is criminal liability for what their paper publishes.

For certain offences it is not the newspaper company that ends up in the dock, but the editor, facing a conviction for a criminal offence.

There are a number of offences that they can commit in this way – contempt of court; identifying a victim of a sexual offence, or identifying a child in proceedings who has been given anonymity by the court.

It is this last offence that Brian Aitken, outgoing editor of The Journal, Trinity Mirror’s regional morning newspaper published out of Newcastle, was convicted of earlier this month.

His paper reported on a sexual offence committed by a teacher. In such cases the anonymity given to the victim is statutory sexual offence anonymity.

This would mean the victim’s name and address would be forbidden and any other detail likely to identify her – so her school if it is a reasonably large one, is unlikely to be an identifying detail.

However, Mr Aitken and his journalists did not know that an order under Section 39 of the Children and Young Persons Act 1933 had also been placed on the child victim. Section 39 is similar in its scope to sexual offence anonymity, but it also expressly forbids the naming of the school.

So The Journal, and Mr Aitken, had unknowingly committed an offence. A decision was taken to prosecute Mr Aitken and he was convicted of the offence and fined £1,600, and so now has a criminal record that would show up on a CRB check and could interfere with his life if, for example, he applied for a U.S. visa for a holiday.

On the face of it, an editor who publishes information in violation of a court order might get little sympathy. But it’s far from straightforward.

Firstly, it is not as easy as you might think to find out whether a court has made an order in any particular case.

There is no central record kept of such orders, and certainly no online database to check. You are reliant on the diligence of court staff in finding such matters out, and that is variable to say the least.

This is despite the fact that any court making such an order is under an obligation to communicate it to anyone reporting that hearing, or any subsequent hearing, in writing. This was established in the case of R v Central Criminal Court ex p Godwin and Crook which said that any section 39 order must be specific in who it applies to; must be in writing and must be communicated to any media who are not at the hearing where it was made.

The booklet ‘Reporting Restrictions in the Magistrates Court’ – effectively a statement of the courts’ own rules for making restrictions reiterates this and says: “When a discretionary restriction order is made, it is desirable that the media are given every assistance to comply with it.

Magistrates may, therefore, think it helpful to say that if there are any particular problems arising from the making of the order which the media wish to raise in a written note, further guidance will be given in open court.

Every court should have a proper procedure for ensuring that adequate steps are taken to draw any discretionary restriction order to the attention of media representatives who may not have been in court when the order was made and the court should ensure that the procedure has been followed.”

In my experience magistrates nod at the press bench and mutter ‘we make the usual order’ – no written copy, no communication of the order to subsequent hearings.

I know of courts that have been so lax in this that when a reporter queried whether an order had been made, the court was reconvened by the judge specifically to make an order on the case, which he had forgotten to do during the proceedings.

So, if we are going to see prosecutions like this take place and a strict adherence to the rules, then perhaps newspapers ought to insist on a similar adherence to the letter of the law.

Maybe they should insist that every order, every Section 4, Section 11 and Section 39 is given to them in writing, setting out exactly what restrictions the judge or magistrates have in mind.

We have seen similar prosecutions of editors under sexual offence legislation where their paper has accidentally put too much detail in about a victim, risking identification.

This action is a world away from the deliberate actions of a mob targeting a victim, as we saw in the case of Ched Evans, yet in law they are treated as the same offence.

This practice of prosecuting editors and sometimes journalists for crimes of publication is, in my view, wrong.

Very often they are strict liability offences where absence of intent is irrelevant to the prosecution.

These laws stem from an era, probably fictional, when the editor sat at the hub of the newspaper, examining every word they published. As for the deterrent effect of such prosecution, do they seriously imagine that editors across the country sit poised ready to identify victims?

A far more effective deterrent would be proper communication of court orders to all media, as set out above. The offences, rather than crimes, could be dealt with as civil matters with damages for the victim – which at least one victim has pursued, receiving more in damages than she did as criminal injuries compensation.

Today, in a country with a supposedly free press, we are seeing too many journalists’ homes raided at dawn, too many held on long bail, and too many in the dock.

It is time the practice of criminalising editors and journalists for accidentally breaching anonymity was abolished.