1 comment on “Contempt of Court and the challenge of social media”

Contempt of Court and the challenge of social media

WHEN the Contempt of Court Act made it onto the statute books in 1981 Twitter founder Jack Dorsey was five, Facebook’s Mark Zuckerberg was yet to be born.

Zuckerberg founded Facebook in 2004; Dorsey co-created Twitter in 2006.

Understandably then, the legislators of 1981 could have had no concept of what publication would mean in the age of the Internet. Yet here we are almost 40 years later applying that same legislation to a 21st century digital media.

And it doesn’t fit.

The Contempt of Court Act 1981 was a piece of legislation that attempted to strike a balance between the right of an individual to have a trial free from prejudicial publicity; and the rights of people generally to freedom of expression.

But then prejudicial publication could only be carried out by a handful of national newspapers and there were only two broadcasters in the UK – BBC and ITV (albeit ITV was made up of a number independent regional broadcasters).

Even if you added in regional newspapers you are still dealing with publishers that might number in the tens that might publish something prejudicial about a particular case. Keeping a lid on things was relatively straightforward and the occasional prosecution had the effect of sharpening awareness among those titles that might be pushing at the boundaries.

Now publishers number in their millions. Ordinary users of Facebook or Twitter may not have follower numbers that rival a newspaper’s circulation, but that is to dismiss the viral effect of social media. One tweet is retweeted by ten followers, and ten each of theirs retweet it, and so on. Soon you get up into newspaper circulation numbers.

But for contempt, and other laws, it is not just the viral way in which posts are spread. More pernicious is the way in which users reinforce each other’s behaviour, which can have the effect of encouraging, or condoning, breaking the law.

You see this happening quite often in online communities and it is one of the factors that contribute to so-called ‘trolling’ behaviour.

It works something like this:

  • One user will post something that is close to what is acceptable behaviour, and nothing happens to them.
  • A second user decides they will push it a bit further, still nothing untoward happens.
  • Other users might make encouraging remarks, they might ‘like’ or repost the offending comment.
  • The effect of the platforms algorithms mean all those users interacting in this way get more content like this pushed at them, they all see more of each other’s posts and comments on this subject and others like it.
  • The effect of this is to create a micro-community that validates and normalises this behaviour. They don’t see anything wrong with it because they are all doing it. The normal checks and balances that operate in society to prevent us behaving in a bad way cease to operate in an online community that takes this turn.

You see this with trolling behaviour and harassment online and you see it in commentary on court cases and crime. This is a real problem for contempt law.

Of course, one might take the view that if people behave so badly they can take their knocks with a prosecution for contempt and a hefty fine or even a prison sentence.

The threat of prosecution kept newspapers and broadcasters in line for the most part, why shouldn’t it work for social media?

Newspaper editors and broadcasters sat up and took notice when someone was prosecuted for contempt. It was, and is, reported by the trade press. In-house lawyers would send round memos reminding staff of contempt law. Trainers like me would incorporate examples into our sessions to highlight the dangers.

None of that happens on social media. Facebook doesn’t put out a memo; Twitter doesn’t offer its users any training. To do so would be to accept a responsibility for what their users do and that is a precedent the platforms do no want to set.

So users, unless they keep a very close eye on such matters, do not get to hear about contempt prosecutions. Worse still they do not know about court orders that are meant to have the effect of keeping publishers in line.

When Jon Venables and Robert Thompson were released after a life sentence for the kidnap, torture and murder in 1993 of James Bulger they were made the subject of lifelong anonymity orders forbidding anyone from publishing a picture of them as adults, or revealing anything about their whereabouts or their new identities.

Last month, the actor Tina Malone was issued with a summons to the High Court after allegedly posting a picture said to be one of the killers. Malone has said she did not know sharing such an image was illegal.

In another case Cleveland Police appealed to social media users to show restraint in the wake of the death of a young man in Teesside. Elsewhere trials have been relocated as a result of widespread prejudicial commentary on social media.

Ignorance of the law is no excuse, but generally we all have an idea about the laws we should not be ignorant of, be it anything from speeding to murder.

The orders placed on Venables and Thompson were made 18 years ago. Journalists know about them, it is our job to do so. Is it reasonable to expect people who do not work in media, who might not even have been born when James Bulger died or his killers were released, to know about them as well?

News organisations train their staff to know all this. I know, because I deliver the training to many of them.

You don’t get a beginners’ media law course when you open a Facebook or Twitter account. Perhaps you should, but then, again, to provide this would be accepting a degree of responsibility for what users do, which thus far platforms have scrupulously avoided.

The platforms are uniquely placed to deliver easy-to-understand guidance to their users to try to avoid some of the most outrageous examples of contempt. If contempt law is to survive, maybe it is time they reconsidered their refusal to do so.

  • If you are worried about contempt of court, this post – Contempt of Court and How to Avoid It, is far and away the most popular one on this site, so you are not alone and hopefully will find it as useful as others have.
3 comments on “Seven deadly sins of court reporting”

Seven deadly sins of court reporting

COURT reporters, what are they then?

Well you may ask, because if you believe reports of the industry, they are a dying breed.

But then, they were dying back in the days I was numbing my backside on the press bench of Wrexham Magistrates Court as a wet-behind-the-ears junior reporter on the Evening Leader.

It is true that as the regional press has de-staffed, sorry, management-speak, cut jobs, increasingly the dedicated court reporter posts have decreased.

But the courts do still get reported, and my first editor, Reg Herbert, who would demand ‘every cough and spit’ from Wrexham Mags, I still believe that they are the best free show in town. All human life is there and it is no coincidence that Dickens was a court reporter, his novels populated by the characters he came across in the courts.

If you are a junior reporter heading to court for the first time, or a blogger who has spotted a gap in the market, here are seven deadly sins all court reporters should avoid…

  1. Don’t use your mobile phone. You can, usually, use your phone to file copy by email, or to text your newsdesk. The courts have been told that this should generally be allowed, and only in special circumstances should it be forbidden. If you have your phone turned on, make sure it is switched to silent. One reporter was more than a little embarrassed when, during the sentencing of a murderer, his phone went off playing a rendition of The Gay Gordons
  2. Don’t use your mobile phone as a camera. That souvenir selfie of your first day as a court reporter could see you spending your first day in the cells below. Photography during court proceedings is against the law, as various notices around the court will tell you. Taking a photograph with the court administration’s permission – such as of a retiring magistrate in an empty courtroom for a feature – would be fine. Thanks to Twitter follower Tom Webb for reminding me, you’re not allowed to use a phone, or any other device to record the proceedings either. Get a notebook, pen, and learn shorthand.
  3. Don’t bow. You will see officers of the court – the lawyers and ushers, bowing to the judge or magistrates as they leave or enter the court. I have seen some court reporters do this, but there really is no need. You are not involved in the proceedings, you are just reporting them.
  4. Don’t be intimidated. Court staff are overworked and can, sometimes, be less than helpful. Remain studiously polite, but insist on the information that you need in order to produce an accurate report of proceedings. Courts are under instruction from the Ministry of Justice to make court lists available, so make sure they give them to you when you need them.
  5. Don’t forget your law. You’re not expected to know the criminal law inside out, but you needs to know the basics for court reporting. Libel, specifically privilege defences for court reporting; contempt of court; reporting restriction on preliminary hearings; anonymity rules for children and sexual offences to name but a few. This is where I come in, I run training sessions on all this and I’m cheaper than getting a massive fine or paying libel damages. See my training page for details of the courses I run.
  6. Don’t forget court reports are about people, not the process. Don’t get caught up in the terminology or the complexities of the law. Tell the human story about the offence, the perpetrator, the witnesses and the victims.
  7. Don’t use a picture of a gavel to illustrate a court report. This is a courtroom, not an auction and they don’t use them in UK courts, ever. I’ll laugh at you if you do, as will the Twitter account @igavels, which was set up to highlight such abuse.
1 comment on “Reporting restrictions in Ambridge”

Reporting restrictions in Ambridge

PITY the poor court reporter on the Borsetshire Echo.

After years numbing their backside on the narrow press benches of that farming county’s courts, faithfully recording drink driving, poaching and a bit of argy-bargy of a weekend outside The Bull, they suddenly have a much bigger story on their hands.

You don’t have to be an Archers fan to know this tale of country folk has taken a sinister turn recently, culminating in Helen Titchener, nee Archer, plunging a knife, twice, into her abusive husband, Rob, almost causing a demise that many fans would have deemed rather timely.

The storyline, which has been building for a couple of years, has done a great deal to raise awareness of domestic abuse and the sort of ‘coercive control’ exerted by Rob on Helen. The reaction from the public has been extraordinary, summed up by the amazing response to an appeal launched by Paul Trueman, @paultrueman74 on Twitter.

He set about raising £1,000 for the charity Refuge, which helps victims of domestic violence. He set up a Justgiving page and the sum raised now stands at more than £127,000 .

Rob survived, Helen is behind bars awaiting trial, and her brother Tom has had a characteristically good whinge about the press coverage of his sister’s situation.

But what can the media report, if anything? Tom, while perusing the newsstands on the Sunday after Rob’s near-death, was horrified at the coverage – “They’re not meant to print anything,” he said, setting the teeth of this old court reporter on edge, and not just because of his shrill tone.

I doubt very much that Helen’s alleged offence would have attracted the attention of any national newspapers at this stage. She didn’t kill him, and there is nothing about her, or Rob, which would normally attract the attention of a national newspaper news desk, in my opinion. But let’s give the scriptwriters that bit of licence, as it allowed Tom to give the redtops a bit of a kick, which always plays well to middle England of a Sunday as they listen to the omnibus edition of The Archers, while reading their….er….redtops.

What then, are the rules on reporting this offence?

Firstly, when Helen was arrested, that means that proceedings in the case had ‘become active’ – the judicial ball is rolling and at some point in the future, Helen might face judge and jury. That means that any reporter working on the story ought to keep a weather-eye on the Contempt of Court Act 1981. This says that once proceedings are active you must not publish or broadcast anything which creates a ‘substantial risk of serious prejudice, or serious impediment’ to the proceedings.

So, what does that phrase mean? Is it a blackout on all coverage of the case?

Well no. The Contempt of Court Act was brought in to substantially replace the old common law of contempt, which was too draconian, and the new statute was intended to strike a balance between rights to a fair trial, and rights to freedom of expression.

So, as long as any detail you publish is not seriously prejudicial, then it should not cause you any difficulty. Note that prosecutions for contempt have to be authorised by the Attorney General, and cannot be taken against you by Borsetshire’s barmy magistrates, or even crown court judges – they have to refer it to the AG.

The sort of details that would be prejudicial are:

  • PIctures, E-fits, descriptions or video of a defendant ‘where identity is at issue at trial’ ie the accused is saying ‘it wasn’t me guv’nor’. There may be an ID parade and if you have published a photo, that reminds the eyewitness who to pick out, and it destroys the admissibility of their evidence. The Sun was fined £80k for this, and its then editor Kelvin MacKenzie was fined £20k. This is clearly not the case with Helen, but we often don’t know that for certain in the early stages of an inquiry, so you have to err on the side of caution.
  • Assumptions of guilt. Helen is not yet ‘the attempted murderer’ it is an allegation and can only be reported as such.
  • Evidence that will be disputed at trial. Be it Helen’s threat to kill her husband on Maundy Thursday, or Kirsty’s tales of Rob’s abuse that you have unearthed, you cannot report them yet. They cast the defendant and the victim in alight that might sway a juror, so should be avoided until the trial concludes.

Proceedings remain active until sentence according to the Act, but in practice you can run your background articles as soon as Helen is acquitted and carried shoulder-high from court…..sorry, or found guilty. Once either of these things happen, the jury is out of the equation and can no longer be influence by what you publish.

When Helen appears in court a different set of restrictions apply to what can be written. In the preliminary hearings before trial a report is mean to be restricted to:

  • Name of the court and magistrates
  • Name, age, address, occupation of the defendant
  • Names of the lawyers involved
  • Charges or a summary of them
  • What the court decides about the case – adjournment, allocation for trial etc
  • Arrangements for bail – residence, curfew etc
  • Whether legal as was granted

Pretty thin stuff, very procedural, as you can see. But if the Borsetshire Echo’s court reporter has anything about her, or him, they won’t let those restrictions get in the way of giving their reader a taste of court.

Descriptive passages detailing the oak-panelled grandeur of Felpersham Magistrates Court will be fine. Describing the organic, tie-dyed t-shirt that Helen wore for her first appearance will be ok too. Her mother, Pat, weeping in the public gallery, sitting beside Tony wringing his hands, again, will not be a breach of this law. What would be a problem here would be reporting any detail of prosecution evidence against Helen. A potential juror might read it and be more likely to find her guilty as a result.

However, if Helen’s counsel Anna Tregorran QC, wants to state during proceedings, or after, on the steps of the court, that her client would be vehemently denying the charges and expected to be acquitted on due course, that would be OK to report. Jurors are told to presume the defendant is not guilty and Ms Tregorran’s statement is merely affirming that. However, if Rob’s venomous mother Ursula, were to make a statement proclaiming that Helen was bang to rights, it’s a fair cop, she’s going down – that would not be allowed.

I also foresee a potential problem when this case comes to trial, in the shape of Helen’s young son, Henry. He witnessed the entire incident and will be called as a witness at trial. In such a case it would be very likely that the court would choose to anonymise him using a Section 45A order of the Youth Justice and Criminal Evidence act 1999. This would make reporting his evidence a little difficult.

The law says that any detail which allows someone to identify him is an offence. In such a case, even his age might be seen as an identifying detail. Caution is needed, and if in doubt the Echo’s court scribe ought to get some guidance from the judge on what details about Henry are likely to attract his ire.

One thing to note. Reports of trial proceedings are protected against a libel action by a defence called absolute privilege, for a fair, accurate report published at the same time as  the proceedings. So when, as I fully expect, Anna Tregorran shreds Rob Titchener in the witness box, revealing him as an abuser and a rapist, the Echo is free to splash that across its front without fear of Rob going to law.

I hope the Echo’s staff find this useful. If the editor is reading, I could squeeze a law refresher for the staff in before trial commences.

All of the above assumes that the scriptwriters aren’t going to throw us a curve ball and have Eddie and Joe Grundy spring her from a prison van and hide her away in the wilderness of rural Borsetshire. We live in hope.

0 comments on “IPSO, what’s the difference?”

IPSO, what’s the difference?

IPSO – the Independent Press Standards Organisation – took over from the Press Complaints Commission today.

How we got here is a matter of record, featuring the phone-hacking scandal; the Leveson Inquiry; prosecutions past, and more to come.

You will find plenty of critics of both IPSO, and the alternative Royal Charter regulation elsewhere. What I will talk about here is the practical impact the new regulator will have on those who have signed up for it.

Firstly, for reporters, the important thing to know is that the Editors’ Code of Practice remains the code of ethical conduct that governs your work. You need to know the code and how it is applied. Importantly, you must adhere to the ‘spirit’ of the code, and to understand this you must make it your business to know how the code has been applied.

It is as important to know your way around the code as it is to understand libel, shorthand, or how to write a decent intro – it is a basic tool of your trade.

In this sense then, not a lot has changed, the code remains the same.

What has changed is the way in which complaints under it are going to be handled. This is a matter that editors, deputies, senior managers and newsdesk execs need to concern themselves with.

From now on, how you handle a complaint is going to be crucial because in some instance you do not have the backstop of the PCC mediating for you.

If IPSO receives a complaint about a story, in the first instance it will refer the complainant to the publication’s complaints handling procedures.

Publishers therefore must have effective procedures in place to handle such complaints.

Staff need to know what to do with a complaint. It must be logged properly, reported to line managers, and dependent on the nature of the complaints elevated to the managers who are able to resolve it properly.

Some complaints, requiring perhaps a simple correction, can be dealt with by a reporter and newsdesk. Other more serious complaints will need the intervention of the editor. You need procedures in place to determine which is which and to act accordingly. All this needs to be done in 28 days.

If the complaint is not resolved in that time, that is what IPSO gets involved.

If the matter has to go to IPSO because of failures in the complaints-handling processes of the publication, that is when they need to be worried.

If they are suspected of a systemic failing to uphold standards, then IPSO can come in to investigate. This could mean interviewing staff, looking at notes and other records and demanding access to newspaper systems. It could be a very uncomfortable process.

Following on from that, if such an investigation finds serious failings to uphold standards, there is the ultimate sanction of a financial penalty.

So, as I said, complaints handling is vital, as is note-keeping, recording of newsdesk advice and decisions; legal advice sought and given; and editorial involvement. There needs to be clear guidance given to all staff about the sort of issue that requires editorial clearance before any action is taken that might be a breach of the code.

No-one wants to be the first publication to fall foul of an IPSO adjudication. if you have not done so already, sort out your complaints procedures now.

And let’s be careful out there.

0 comments on “Are you ready for IPSO?”

Are you ready for IPSO?

FROM September a new press regulator will begin operating in the UK, in the shape of IPSO.

IPSO will regulate much of the national and regional newspaper industry, with some notable exceptions, as well as the magazine sector. It will also regulate their associated websites.

Its birth is not without controversy, as it marks the industry’s rejection of the Government’s response to the Leveson Inquiry – a Royal Charter regulator. Hacked Off, the organisation representing victims of press abuses have dismissed IPSO as not Royal Charter compliant and the ‘PCC Mark 2.’

Nevertheless IPSO has appointed its new chairman, appeal court judge Sir Alan Moses, and is searching for a chief executive and members of its board.

For titles that have signed up to IPSO, despite criticisms levelled at it, there will be a very different and more exacting regime with which to comply.

Much will be familiar to titles that have signed up to IPSO. It will still use the Editors’ Code – although, as always, it can be revised as circumstance require.

It will also use the existing secretariat of the PCC, a wise move in my view as it is very efficient at responding to complainants, gathering information and putting together a file for adjudication. It takes 35 working days from complaint to adjudication at the moment, which is faster than any legal action you will ever be involved in.

IPSO, unlike the Press Complaints Commission, will be able to conduct investigations and, again, unlike its predecessor, it will be able to levy fines of up to £1m.

Such actions will only be taken where there has been a ‘systemic’ failure in regulation at a title – but what will this amount to and how is it to be avoided?

I am now running IPSO compliance training for publications that want to get ready for the new regulator.

The sessions include:

• Training staff on the Editors’ Code and its implementation with practical workshops to illustrate the latest complaints and decisions
• Training senior editorial executives in the Code and its implementation so that they can make sound decisions and give clear guidance to junior staff when tackling ethically difficult assignments
• A compliance audit to ensure the publications practices and reporting structures are robust, to avoid findings of systemic failure in regulation
• An optional service as an external independent arbitrator in disputes where internal resolution has failed to reach agreement

Publications will need to show IPSO that compliance with the Code is taken seriously and runs through their organisation from editor to junior reporter. Regular training that is independent of the title, and of IPSO itself, which I provide, can go a long way to doing that.

There are more details on the training courses page.

If you want your publication to be ready for IPSO, contact me now to discuss training at davidbanksmedialaw@gmail.com

0 comments on “Defamation Act 2013 – in force now, advice to website operators”

Defamation Act 2013 – in force now, advice to website operators

I have been receiving a number of requests for guidance and training about the effects of the Defamation Act 2013.

The Act introduces a number of changes, but website operators are particularly interested in the impact it could have on them and the people who provide user-generated content for their sites – their community.

The Act, and in particular, its Section 5 defence changes the way in which websites respond to defamatory posts placed there by users. Whereas before a notice and takedown procedure, based on a European Union e-commerce directive, would evade liability on the part of the website, now in some circumstances, there is a requirement to give the claimant the details of who it was who posted the libellous material. However, if the poster is easily identifiable and contactable from details on the site, it may well be the operator need do nothing as the action lies between the claimant and the poster.

This shifts responsibility for defamatory posts from the host site onto the poster, which ought to reduce liability for websites. However, if a website operator wants to use the Section 5 defence and the poster details are not readily available, they need to comply with some tight deadlines, often just 48 hours, in responding to the claimant and giving them the details of who it was who posted the defamatory content.

So you may need to hand over details of your users – members of your community – to a libel claimant. This could change the nature of your relationship with your online community, many of who may be relatively unaware of the laws of libel and other legal risks they can incur.

Some websites are beefing up their registration procedures and T&Cs to take account of these changes, as well as offering guidance to their users on the main legal problems they may encounter. Others may want to stick to their original practice of takedown on notice. Deciding which procedure you want to adopt depends on the nature of your website and the conversations that it carries.

This is where I come in.

I have been writing guidelines for a number of organisations as well as providing training for moderators and community managers in the Defamation Act 2013 and other laws relevant to their role.

If you want more information about the services I provide in this area, contact me at davidbanksmedialaw@gmail.com

0 comments on “Five laws editors need to know better than their staff”

Five laws editors need to know better than their staff

BEING an editor places great demands on your time.

You might well have arranged training for your staff, but have you thought about your own? When was the last law refresher you attended?

You might reasonably leave day-to-day spotting of legals to your newsdesk and subs, but in some cases it is you that will be held responsible when things go wrong.

Here, briefly, are five areas of law an editor really needs to know.

1 – Sexual offences anonymity
There is now a large number of offences which give anonymity to a victim as soon as a an offence is reported and that report can be to anyone, not just police. Relatively new offences like trafficking and voyeurism are catching journalists out because they do not realise they are sexual offences.

The consequences of breach are very serious, a prosecution under the Sexual Offences Amendment Act 1992 – and the CPS will sometimes prosecute both the paper and the editor. Conviction will result in a criminal record for a sexual offence.

2 – Contempt of Court

The law isn’t new, it’s been around since 1981, but what is new is Attorney General Dominic Grieve’s willingness to prosecute.

He said when he took office that prejudicial publication was a concern and he has been true to his word in allowing prosecutions for contempt.

They can still, theoretically, jail editors for contempt (last time that happened was the editor of The Mirror in 1949 over converage of the Haigh Acid Baths Murders) Nowadays they give the editor a personal fine, as well as the paper. Fines are unlimited, but tend to be in the tens of thousands of pounds.

Publication of material which would not have resulted in prosecution five years ago, is now being being taken to court.

3 – Defamation Act 2013

Libel remains your most potentially expensive problem. The new Act will probably be implemented from summer 2014. It contains new defences and new limits on how claimants can take action against you. You and your staff need to understand the changes it introduces.

4 – Bribery Act, RIPA, Misuse of Computers

The laws we saw Leveson explore at some length. You may well be taking on young, technically adept journalists. They, and you, need to know the legal limits on use of their technical expertise in obtaining stories. Likewise, what is a bribe, who can be bribed and how to avoid a bribery charge?

5 – Copyright

The next big issue coming down the track I think. Journalists are magpies and tend to regard the Internet as a limitless source of free material, especially imagery. People posting pictures online seem to be becoming more aware of their legal rights over such material and we will, I think, start seeing actions for copyright breach in the near future for the sort of online pilfering reporters have regarded as safe up until now.

If the above has given you pause for though, I run in-house law refreshers for editors and their staff. All sessions are tailored to the individual publication concerned. If you would like to talk about training, drop me a line at davidbanksmedialaw@gmail.com