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Online contempt of court: free speech versus jury trials?
Submitted by Will Tolcher on 9 December 2013
Last week, the Attorney-General for England and Wales (the British government’s top legal adviser), Dominic Grieve (@AGO_UK), set out a proposal to publically provide guidance on what can and cannot be published to avoid prejudicing a trial. Previously, this information was exclusively made available to the traditional media, and in confidence. The law on contempt of court in England and Wales is largely set out in the Contempt of Court Act 1981. It is a strict liability crime: a person who does not intend to do so may commit a contempt of court. The use of social media counts as a publication for this Act. This follows in the footsteps of incidents such as Peaches Geldof tweeting the names of two women whose children were abused by former lostprophets frontman Ian Watkins. Geldof has apologized, and it appears the police have not taken action, which would be under a separate piece of legislation which deals with those involved in sex offence cases, the Sexual Offences (Amendment) Act 1992.
While free speech is a universally valued human right, there has to be some restrictions on contempt of court and protecting the anonymity of some people involved in legal proceedings (rape victims, for instance) in order to protect jury trials, a cherished element of many common law legal systems. Without the rule of law, free speech is useless. Secret trials are, in general highly undesirable, but we must have fair trials and an effective criminal justice system.
The Contempt of Court Act is not a new piece of legislation – it came in to force in 1981, the year before Channel 4 came in to existence. The advent of social media has changed things. It has provided anyone with an opinion or something to share a platform, without any filtration through traditional media – but like traditional media, social media is covered by this law.
The democratizing effect of social media can be great for the world of law. Social media allows people like Adam Wagner (@AdamWagner1) to tweet and blog about issues of human rights law, including the misreporting of it by the press. It provides a voice to people who would not normally have one. However, just as that means that the informed and knowledgeable have a direct line to our smartphones over Twitter, as do the ill-informed (such as those who remonstrated against a court for imposing the mandatory sentence in the recent case of a Royal Marine convicted of murder) and the cranky.
However, will these notices actually filter through? Not that many people may know about these, the Attorney-General’s office has less than 5,000 followers (at the time of writing). Many people, even if they know won’t necessarily care. That people know that they should not name someone has not stopped names circulating – those involved in the Baby P child abuse case were named on social media, despite that being a criminal offence. When Newsnight did not name Alistair McAlpine, who was incorrectly alleged to have participated in child abuse following a case of mistaken identity, Twitter did. While it is possible to trace a twitter account, many of the people who tweet material that is a contempt of court or otherwise illegal can do so under their own name – even if your own name is Peaches Geldof (@peaches_g).
What this won’t do is change the criminal sanctions. In theory, contempt of court is punishable by a fine of up to £2,500 or two years imprisonment, naming rape victims a fine of up to £5,000. In practice, the penalties are not so high: those who initially pleaded guilty to naming the woman raped by footballer Ched Evans had to pay a little over £600 each in compensation, one woman who changed her plea later was fined an additional £405 (none of this including costs). However, this actually requires a case to be prosecuted, of course.
In short, these contempt of court warnings may be helpful, and certainly if there are reporting restrictions it’s good to have them as transparent as possible in order to try to strike the right balance between allowing debate and keeping the integrity of the jury trial. However, it won’t affect those lacking in common sense, or those who just don’t care.
-- Will Tolcher (@WillTolcher)
Final note: Between finishing this and it going up on the website, I found out that the Law Commission published a report (relatively long PDF) today on some of these issues - UK Criminal Law Blog has done a good job of summarizing it for people with better things to do than read it cover to cover (most of us, in other words). They propose maintaining the current law in the main, but with a few clarifications on the definition of publication, making clear that it is a continuing act (in other words, if it is still on a website, it's still being published). They don't propose increasing the penalties. While it's not law, Law Commission reports help guide the law in future by making suggestions to the government on what tweaks are needed.
 Contempt of Court Act 1981, Section 14
 Sexual Offences (Amendment) Act 1992, Section 5
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