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?

HERE’S your round-up of coverage I’ve spotted today.

After a quiet day, unanimity breaks out with everyone going for the line about David Blunkett and transcripts of intimate voicemails.

The Guardian

Daily Mail

Hacked Off

The Independent

The Drum

Press Association (here on MSN)

That’s it for now. As ever, drop me a line if your copy is missing from here and you would like a mention, or if you’ve spotted something you think worthy of inclusion.

Phonehacking Trial, Day 7

AFTER near unanimity on the best ‘lines’ from the first few days of the trial, today seemed to mark the first day when papers chose different angles.

Always interesting when the press do this on any story as it gives you a little insight into how they think editorially and what they think will push their readers’ buttons.

Many of them spend a large amount of money and time finding out exactly what their readers think, do and consume and if a paper is well-targeted you can tell a lot about its readership from the angles it takes on stories and the stories it chooses for page leads, and the others it drops completely.

Anyway, here’s the coverage from today, enjoy.

Daily Mail

The Independent

The Guardian

Daily Mirror

Hacked Off

The Drum

Evening Standard

Press Association (here on MSN)

Peter Jukes has been doing a great job livetweeting the trial and is now crowdsourcing funds to help him keep at it until Christmas – a very worthy cause.

That’s it for now. As ever, if you spot something superlative, give me a shout.

Phonehacking Trial, Day 6

Week Two of the trial and stories are still coming thick and fast.

It’s still the opening of the trial, which the judge has decided can be livetweeted and @PeterJukes is doing a particularly fine, comprehensive job. The line about codewords from the film ‘Where Eagles Dare’ proved irresistible in the early copy today.

Coverage today.

Guardian and the “Where Eagles Dare” line.

Daily Mail

The Independent

Daily Telegraph

The Drum

Hacked Off

Broadsword calling Danny Boy – signing off until I see some later takes this evening.

Phonehacking Trial, Day 5

EARLY take on the coverage up so far on the phonehacking trial. As usual if more emerges later I will update.

The coverage has been pretty comprehensive this week, both online, in print, livetweeting and blogging. I think some predictions that the trial might be downplayed proved to be ill-founded.

It has been interesting for me watching site stats to see which links have been most clicked, and at this time of night, The Guardian outstrips the rest quite easily, even after I started handicapping it a bit by dropping it down the list. However, later on, in the small hours of the morning, sites like The Daily Beast, The Drum and Hacked Off come back strongly with a lot of visitors heading their way from here.

Anyway, coverage is as follows:

Press Association (on MSN here, also available on BT and on homepages of Newsquest, Johnston Press and Trinity Mirror)

Evening Standard

The Independent

The Drum

Hacked Off

Daily Mail

Daily Telegraph

The Guardian

It will be interesting to see what, if anything, the Sundays do with this given that they don’t normally go for trial coverage as it will have been gone over thoroughly in the Saturday papers. I will round them up here if they do anything significant with it.

That’s it for now, an interesting week and more to come. Have a good weekend.

UPDATE

Eastern Daily Press with a local line

Phonehacking Trial, Day 4

WELL, the phonehacking trial continues to deliver, and this is just the opening.

Worth noting, that it is just that, the prosecution opening. It’s a trial, there’s more to follow. It’s scheduled to go on until Easter, there is a lot more to follow from prosecution and defence.

I am being asked a few questions on Twitter about what it is safe to tweet and blog. Not from reporters at court, many of whom are very experienced journalists and well able to produce reports compliant with reporting restrictions, but from bloggers and tweeters who are commenting on the case.

There have been a number of court orders made in this case, primarily to prevent prejudice to this and other cases. I gather that warnings have been issued over some tweets made in the past couple of days. Caution is advised, the current Attorney General, Dominic Grieve QC MP, is keen as mustard when it comes to contempt and has said in the past that he would issue contempt proceedings against an individual blogger or tweeter if the need arose. Fair warning.

When reporting proceedings it is always wise to stick to what has been said in court, in front of the jury, that way you are not revealing to them anything they do not already know.

As a general rule do not make reference to any other proceedings, past or pending, you may know about as that risks prejudicing this trial or any future trials.

Furthermore, do not do anything that vilifies a witness, that might put them off testifying, that could also be a contempt. In the archive of this site you will find a quick guide to avoiding contempt of court which you might find useful.

Anyway, onto the coverage of today.

Daily Telegraph

The Guardian

Daily Mail

The Drum

Daily Mirror

BBC News

Daily Express

The Independent

UPDATE

Here’s The Daily Beast coverage, by @PeterJukes, who has also done a fine job of livetweeting the opening.

And here is the coverage on the HackedOff website.

That’s it early doors, as usual if anything later catches my eye, or is pointed out to me, I’ll add it. Once again, if you’re toiling away behind the paywall of The Sun or The Times and want to send me links for inclusion, please do so.

And if you’re tempted to tweet, in the words of the great Sgt Phil Esterhaus: Let’s be careful out there.

Phonehacking Trial Day 3

THE livetweeting of today’s proceedings conveyed the drama of events at the Old Bailey as three of the defendants all entered guilty pleas.

You can Guardian coverage here.

Daily Mail here.

The Independent here.

The Daily Mirror here.

Daily Telegraph here.

Hacked Off’s take on it here.

That’s it for now, update later tonight if any more copy catches my eye, feel free to tip me off to anything you think particularly well done. If Times or Sun staff want to lob me a link over their paywall, I’ll be happy to include it here.

UPDATE

Link to coverage by The Drum’s James Doleman here.