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Trial and error: online comments court attention

Att Gen hints at review of responsibilty for online prejudicial comments

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The UK Attorney General has said that operators of websites should be responsible for comments made by visitors to their sites that prejudice trials. Dominic Grieve said that he wants "further discussions" on site owners' liability.

Speaking to the Criminal Bar Association, Grieve, a Conservative MP, said that protecting the fairness of trials was growing increasingly difficult as news outlets proliferated.

"The rise of [the internet] has been profound in so many aspects of our lives, including the relationship between the courts and the media," said Grieve. "The news is constantly available and updated either on 24-hour television networks, the websites of mainstream news organisations, or unofficial blogs, emails and social networking sites. The amount of material is vast and it can be passed on at lightning speed."

"In my view this does not reduce the importance of the contempt of court laws. It doesn't remove the need for fair and accurate contemporaneous reports," he said.

Grieve said that the increasing number of places at which people read news content would create problems for courts attempting to ensure that trials were fair and that juries were not exposed to material that would prejudice the hearing. One major problem was that websites' comment sections could host prejudicial content he said.

"If it is increasingly easy for individuals to act as unofficial journalists and publishers the greater the need for general understanding about why restrictions are sometimes necessary," said Grieve. "This extends particularly to those who run websites upon which members of the public place their opinions."

"I understand that there is no clear authority in relation to their legal obligation but there must, I feel, be an argument that they too have to ensure that a trial is not prejudiced by what is posted," said Grieve. "I would be happy to have further discussions with such organisations is in an area that needs to be explored with a view to increasing their understanding of those potential risks."

Traditionally, parties to the publication of material that is part of an active trial, or sub judice, have been able to argue that they innocently passed material on. Printers or distributors of material could argue that they were unaware that material broke rules on prejudicing trials.

Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that operators of websites with open comment sections could make similar claims.

"Site operators could use the 'innocent distribution' defence, claiming that they did not know that material was sub judice," said Robertson. "This defence is not available once they have been told about the material, though."

"Online publishers that remove that material quickly would also be able to claim a defence under the E-Commerce Regulations that absolve publishers of responsibility for unlawful material as long as they remove it quickly when told about it," said Robertson.

Grieve's comments suggest he may contemplate increasing a site publisher's responsibilities for material posted by other users.

He said, though, that he believed that the current rules and laws on contempt of court are largely successful.

"Does the system presently work? In blunt terms and with doubtless imperfections, in my view, it does," he said. "Although my office receives a substantial number of queries from legal representatives, the courts, the judiciary, members of the public and also members of the press there have been a comparatively small number of prosecutions under either the 1981 [Contempt of Court] Act or for breaches of other specific restrictions."

Last year the High Court ruled that it was "futile" to extend reporting restrictions on a paternity case involving a baby and children who were alleged to be its parents because of extensive online coverage of the case.

"The dam … has indeed burst and in practical terms there is no longer anything which the law can protect; the granting of the injunction at the present juncture would merely be a futile gesture," said the judge in the case.

In another case last year involving reporting restrictions, an expert said that they only applied to people who had seen the restrictions. While newspapers would typically be informed of those, all bloggers or commenters would not and might have a right to disseminate the information.

"The order does, in principle, apply to 'bloggers' because it applies to all persons who know that the order has been made," said Pinsent Masons lawyer James McBurney at the time. "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?"

Copyright © 2010, OUT-LAW.com

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

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