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?
How should publishers deal with archived content that may be in contempt, from many months or even years prior? Would some articles be in contempt without publishers even realising? Or does it hinge on the active “promotion” of an article?
The guidance that has been given in the past by the Attorney General’s office is that archives do not need to be vetted, or disabled because of potentially prejudicial content.
However, that content must not be republished while there are active proceedings, and care must be taken not to point it out, e.g. by linking to it from current coverage of the trial. Care needs to be taken with content management systems that generate automated sets of links next to copy.
This advice was given during the last Labour government pre-2010, so whether there will be a rethink remains to be seen. The Law Commission did toy with the idea of giving judges the power to order the disablement of links to prejudicial copy, however that idea did not seem to get anywhere. In my view it would be completely impractical anyway as judges tried to chase down URLs of prejudicial material.