The internet, social media and contempt of court: some recent developments

Two recent official statements highlight the need for care to be taken by members of the public who come into contact with the justice system in their use of the internet and social media. And a recent announcement from the CPS reminds users of Twitter of the risk of prosecution for abusive or threatening tweets.

In relation to contempt of court, the risks involved concern the way criminal trials are reported and commented upon and the way this can prejudice the outcome.

First, in relation to comments on trials which are pending or in progress, the Attorney General, Dominic Grieve MP, announced on 4 December that in future guidance would be issued, in the form of tweets linking back to fuller details on a website, warning of the risks of contempt being committed by publication of details in specific cases. So anyone wishing to comment on such a case, or on cases generally, should probably sign up to follow the AG’s account.

This marks a change in policy, since previously “advisories” were only issued to print and broadcast media outlets on a “not for publication” basis. The changes comes at the end of a year in which some ten such advisories had to be issued, twice the usual number. It recognises, not before time, that traditional media are by no means the only place where current criminal proceedings are discussed. The new warning system is intended “to make sure that a fair trial takes place and warn people that comment on a particular case needs to comply with the Contempt of Court Act 1981.”

In the announcement, the AG was quoted as saying:

“This is not about telling people what they can or cannot talk about on social media; quite the opposite in fact, it’s designed to help facilitate commentary in a lawful way. I hope that by making this information available to the public at large, we can help stop people from inadvertently breaking the law, and make sure that cases are tried on the evidence, not what people have found online.”

The “advisories” will be published on the Attorney General’s Office (AGO) section of the gov.uk website and also through the AGO’s twitter feed, @AGO_UK.

Contempt by jurors

Five days later, on 9 December, the Law Commission published the first of three separate reports on contempt of court, following a period of consultation which closed on 28 February 2013. This first report covered the modern media and contempt by jurors. The second will cover practical problems with reporting restrictions and the third deal with contempt in the face of the court, among other matters.

The Law Commission’s investigation, based on a consultation paper published in November 2012, took note of the fact that the Contempt of Court Act 1981 pre-dated the internet and there remained uncertainty as to common law powers which continued to apply and potential inconsistencies with statutory powers.

The report recommended, inter alia, the creation of a new criminal offence for jurors conducting prohibited research. This would increase clarity and consistency for jurors on the boundaries of prohibited conduct, increase the legitimacy of the offence, which would become a statutory one, subject to a criminal procedure and sentencing regime in place of the current civil process in the Divisional Court. It would be triable on indictment and receive a maximum sentence of two years’ imprisonment or unlimited fine.

The report also recommended a limited exception on the current blanket prohibition (under section 8 of the 1981 Act) on jurors subsequently revealing their deliberations, to permit them to reveal miscarriages of justice to the competent authorities or to participate in carefully controlled research into how juries operate.

Archived material

The Law Commission’s report also addressed a problem which, though not peculiar to the internet, is one which internet search technology has made far more problematic. This is the problem of archived material (formerly contained only in physical media libraries or cuttings collections, but now widely retrievable on the internet) which becomes prejudicial when proceedings become imminent or active. Such publication would currently be caught by the strict liability rule under section 2 of the 1981 Act if creating a substantial risk of injustice.

The report recommended that the defence of innocent publication under section 3 would be amended to make clear that it only applied in relation to communications first made available when proceedings were already active; but where the communication was first published before proceedings became active, the person responsible for such publication should be exempt from liability under section 2 unless put on formal notice by the Attorney General of (a) the existence and location of the publication which appeared before proceedings became active, (b) the fact that relevant proceedings have become active, and (c) the offending contents of the publication. Moreover, the Attorney General should send a second notice once proceedings are no longer active.

Where a publisher of archived material has been given such notice by the Attorney General, the publisher would not be able to rely on the defence under section 4 of showing that the publication in question was a fair and accurate report of earlier proceedings.

The effect of these recommendations would appear to be to shift the burden of monitoring the continuing existence of prejudicial material from the publisher (who may of course no longer be in business, or, in the case of an individual, dead) to the Attorney General’s office, which could be an onerous task. It raises questions about the maintenance of online archive material, and possible also about the authentication of evidence used in relation to offences of prohibited juror research.

But the shifting sands of internet data give rise to such problems every day in all sorts of other contexts. Even the great copyright libraries, such as the British Library, face difficulties in archiving legitimate published content in a comprehensive way. Most media organisations do not, like the Guardian, or indeed Wikipedia, carefully record where editions have changed after correction or amendment, though this could be included in the metadata of specific documents. As in other areas, what one is witnessing here is a piece of law, a statute, struggling to adapt itself to the circumstances which did not exist at the time of its enactment – a routine enough problem for statutory interpretation, but a problem none the less.

Offences by Twitter

In June the Director of Public Prosecutions, then Keir Starmer QC (since replaced by Alison Saunders), published final Crown Prosecution Service Guidelines on prosecuting cases involving communications sent via social media. These replaced interim guidelines published a year ago, in December 2012.

Broadly speaking, the CPS guidelines reflect support for the idea that “there should be a high threshold for prosecution in cases involving communications which may be considered grossly offensive, indecent, obscene or false.”

The guidelines distinguish between cases in which “communications should be robustly prosecuted, such as those that amount to a credible threat of violence, a targeted campaign of harassment against an individual or which breach court orders”, and those which, on the other hand, “may be considered grossly offensive” or “shocking or disturbing” or even “distasteful or painful to those subjected to it” but should nevertheless be left alone to avoid a “chilling effect” on freedom of expression.

The practical application of those guidelines was illustrated by an announcement by the CPS on 16 December that it had authorised charges to be brought against two suspects “in relation to twitter messages allegedly sent to Caroline Criado-Perez”, who was the victim of a vitriolic hate campaign earlier this year after daring to suggest that British bank notes might be adorned with the image of the classic novelist Jane Austen or some other suitable female person of national biographical prominence.

The suspects in question have both been charged with improper use of a communications network under Section 127 of the Communications Act 2003. For obvious reasons, the content of the tweets in question cannot be repeated or reported here.

However, the manner in which the announcement was made, and in particular the failure to notify the alleged victim, Caroline Criado-Perez, in advance created as much news as the announcement itself. Although the announcement recorded that she had been written to already to notify her of the prosecutions, and of the fact that charges against other tweeters had been dropped, she initially heard about it via the media, in particular people retweeting the CPS’s own announcement. Accordingly, she declared that she would be making a formal complaint about the handling of the case.

The CPS also announced that it had decided not to prosecute in relation to messages allegedly sent to Labour MP Stella Creasy, MP for Walthamstow, who had also been targeted in the hate campaign after she came to the defence of Criado-Perez.

The campaign of hate took place in August and September and involved, inter alia, rape and death threats being made against Criado-Perez on Twitter. It came after the CPS guidelines had been published, and indeed after some high profile prosecutions involving the use of Twitter, perhaps most notably (albeit in a slightly different context) that of Paul Chambers under section 127(1) of the 2003 Act, after he had published a tweet apparently threatening to blow up an airport: see Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin); [2013] 1 WLR 1833; [2012] WLR (D) 234

This became known as the “Twitter joke trial”, on the grounds that the allegedly threatening tweet had been a joke made in poor taste by someone exasperated by the airport’s closure due to bad weather conditions, and not a genuine threat to detonate a bomb. Chambers was convicted in the magistrates’ court and his conviction upheld on appeal to the Crown Court, but an appeal by case stated was allowed by the Divisional Court, whose consideration of section 127 will no doubt provide a useful precedent for future prosecutions for malicious tweeting.

With apologies to Edudemic for modifying their image