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Bloggers could squeak out of court reporting restrictions

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Bloggers might be able to escape reporting restrictions on sensitive court cases because they have not been informed of the restrictions. An ongoing case about a boy said to have fathered a child at 12 years of age has highlighted the issue.

Reporting on that case has been restricted but foreign news outlets have carried stories about it, with versions of those stories appearing on websites accessible from the UK.

Some bloggers have picked up the stories and may be within their rights to publish while national newspapers cannot. The court order imposing the reporting restrictions says that it only applies to people who know about the restriction.

There is no central database of reporting restrictions, so while newspapers are informed of restrictions, bloggers generally are not, opening a legal loophole for their possible publishing of restricted information.

"The order does, in principle, apply to 'bloggers' because it applies to all persons who know that the order has been made," said James McBurney of Pinsent Masons, the law firm behind OUT-LAW.COM. "Bloggers, along with any other person or corporation are therefore prohibited from publishing any of the restricted material, but only if they know that it is in place to start with, which is where the difficulty arises: how are they supposed to know about it?"

One way people could find out about it is through the local authority involved in the case. It has the right to disseminate the Order, which would in turn bring it into force on anyone receiving it. The local authority would not discuss its dissemination of the Order.

"The major national and regional newspapers will almost certainly be served by [the council], however there is unlikely to be any wider service of the Order and I am unaware of any website or other information service which provides information on reporting restrictions which might be in place," said McBurney. "It is therefore almost certain that the average man on the street will be completely unaware of the reporting restriction order."

The Google News service republishes headlines and opening sentences of news stories to its users. A search for the name of the child in Google News, which was well publicised in coverage of the case before the Order, brings up the foreign stories carrying the forbidden information.

McBurney said that Google could be held responsible for that publishing of forbidden information.

"In terms of internet search engines, and any other entity involved in the chain of publication and distribution of the material, they too can theoretically be held liable for any user generated content on their webpage which publishes defamatory material, or material which is in breach of a court order and therefore in contempt of court," said McBurney. "Liability may also extend to publishers who link another, foreign site, the content of which would be a contempt of court in the UK."

Google said that it removes pages on request when shown the court order the pages allegedly violate.

"We investigate removal requests based on court order violations once the court order (and the pages they want us to remove that allegedly infringe on the court order) have been brought to our attention," said a Google spokesman. "To date, we have not received a court order relating to [this] case."

McBurney said that publishers and bloggers should take down material from a case once they find out that it is the subject of a reporting restriction.

"This is a difficult area to police, but such orders do remain realistic (and necessary) in the internet age," he said. "But they do rely on responsible and expeditious actions by ISPs and bloggers when and if they become aware of the existence of reporting restrictions and material on their website which potentially breaches the terms of reporting restrictions orders."

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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