Law Commission on Contempt of Court and the Internet

The Law Commission have published an interesting consultation paper on how the law of contempt of court is affected by the internet. Anything that “tends to interfere with the course of justice” may be considered contempt: the Contempt of Court Act 1981 deals in particular with communications addressed to the public at large or a section of the public, published while proceedings are active, which create a substantial risk that the course of justice will be seriously impeded or prejudiced (s.2). Courts may make orders (for example under sections 4 and 11) warning that publishing particular information will be considered contempt (you’ll often here these referred to in press coverage as “reporting restrictions”).

Historically it has only been the traditional news media – newspapers, TV, radio – who were able to “address the public at large” so current procedures and punishments for contempt are designed for them. Internet publication, for example through blogs and twitter, now means that individuals may also be able to communicate sufficiently broadly that they may fall within the definition of contempt. While noting that “not only are professional journalists potential publishers for the purposes of the 1981 Act, but so is any citizen who writes a blog or posts emails or tweets to a section of the public” (3.33) the Law Commission suggests that it be left to courts to decide in each case whether a communication has been made to “a section of the public”. The number of recipients of the communication is likely to be a factor, thus e-mail is thought unlikely to reach the threshold but a message on Facebook or Twitter might (3.28). As the Attorney-General pointed out earlier this year, users of those, and similar, media need to be careful when commenting on current cases.

If individuals now have the publishing tools to commit contempt, they at least need to be able to find out when a section 4 or 11 order has been made. At the moment the Law Commission discovered that even media companies may have problems finding notices (or, more important, being confident that a particular case is not subject to a notice), so they recommend at least adopting a Scottish pilot system that lists on a website all cases where notices are in force (2.102).

Publishing on the internet typically involves a number of different parties (author, host, various access providers, etc.) so there are often challenges in applying any law regulating “publication”, to ensure that duties are assigned to the appropriate parties. It turns out that the Act’s requirements for knowledge seem likely to ensure that hosts and access providers are protected from strict liability – to be liable a publisher must “know or have reason to suspect that relevant proceedings are active” while a distributer must “know or have reason to suspect that what they distribute contains infringing material”. Even if these particular tests fail, the usual eCommerce Directive provisions for hosts and networks should apply.

However the definition of contempt does create a problem because of the requirement that “proceedings ... are active ... at the time of publication”. The current law on on-line defamation holds that “publication” occurs every time an article is read (“multiple publication”), which the Defamation Bill would change to be only when the article is originally posted (“single publication”). For contempt of court, the Law Commission seem unhappy with either of these options. A multiple publication rule would mean that authors would have to remember everything they had posted and consider whenever an arrest was made or legal proceedings begun whether old articles might need to be temporarily withdrawn. On the other hand a single publication rule would leave the courts no way to block articles that were lawful when written but now represent a serious risk to justice. This problem could already occur with newspaper archives however the Law Commission consider that these are subject to a “fade factor” so that an old newspaper article is less likely to interfere with justice than an internet posting, both because it is obviously “old” and because it may be harder for a juror or witness to find. By contrast, internet searches can as easily find material published yesterday or years ago, with little to distinguish the two.

To strike a balance between these options the Commission suggest (3.68) that courts might be given the power to order either an author or intermediary to temporarily remove a publication. Contempt would then only be committed if the recipient of an order did not act on it, without having a reasonable excuse to justify their behaviour. This sounds like the familiar notice and takedown approach to internet hosts, however the Commission suggest that “in some cases” it might be necessary to make an order against “anyone who has sufficient control over the accessibility of the specific publication”, including internet access providers (as has been done for copyright infringement) or even DNS registries. Since these methods can result in disproportionate damage to legitimate material and businesses it is important that legislators and courts take at least as much care in drafting and using them as they have for copyright cases.