The Leveson Inquiry is looking in-depth onto every nook and cranny of the industry and threatening to drag out all of the skeletons and then slap the handcuffs of draconian statutory regulation on us all because a minority of hacks erm, well, they hacked.
So why is it that the some titles cannot follow the basic principles of the law correctly?
Yesterday The Sun ran a story on the on-pitch battle between Anton Ferdinand and John Terry. You may recall that on February 1, Terry is due in court to face an allegation that he racially abused Ferdinand during a game between Chelsea and QPR last year.
The story is perfectly acceptable and written with the boundaries of the law as it stands. However, for 12 hours The Sun allowed people to comment on the story.
Some of those comments, as you might expect of modern day 'passionate' fans, were pretty fruity and several stepped so far over the line to be in clear breach of the Contempt of Court Act 1981.
That Act is intended to allow suspects a fair trail and ensure that juries are not swayed in any way by anything said outside of the court room. All journalists know that to print anything which might suggest the guilt of the accused is a clear breach.
You will have to take my word for it that three comments breach that Act is a very blatant way. I have the screen grabs but do not intend to add to The Sun's indiscretion.
About 12 hours after the story was posted, and after at least 21 comments had been left, The Sun realised their mistake and took the story down.
But today, The Independent, has done the same.
Fortunately, at the time of writing this blog no prejudicial comments have been let but it is easy to do so. I signed in to Disqus with a Google account and left the comment to the left.
My comment is not prejudicial in the slighted, containing only words 'My real time comment'. It was left purely to satisfy myself that no pre-publication moderation of comments was happening at The Independent and sure enough my comment was published immediately.
I did a check round and here's what I found:
* Guardian - no comments allowed
* The Times - comments allowed but they are pre-moderated (no link behind the Paywall) - my real time comment was published but I was unwilling to attempt to post a prejudicial comment so cannot guarantee a result either way.
* The Telegraph - comments allowed - my real time comment was published immediately
* The Mirror - comments allowed and I didn't need to do a test as the top comment was such a clear breach of the 1981 Act it clearly had not been moderated (screen grab taken)
* The Star - no comments allowed
* Daily Mail - comments allowed - but were going through pre-moderation
* Express - no comments allowed
If four out of nine mainstream newspapers are unable even to adhere to a basic law governing journalism - what chance do we have of avoiding statutory regulation?
I know that one of the most exciting aspects of online journalism is the interaction with the readers but you cannot publish and be damned - there is no Reynolds Defence in Contempt.
UPDATE: Following queries from readers about whether the Contempt of Court Act 1981 applies in a magistrate's court and for a summary offence (ie that not before a jury), I sought a definitive answer from the Attorney General's office and was given the following reply:
"The Contempt of Court Act applies to any court and applies from arrest."
So that settles that. That's not to say that the Mirror will be prosecuted but it certainly confirms that it could be if someone were to formally report the breach.
I agree with you regarding the folly of allowing unmoderated comment on active proceedings.
ReplyDeleteMy caveat is the issue of mags court and summary proccedings.
The test for contempt, as you know, is whether the material creates substantial risk of serious prejudice.
The comments you describe might well be seriously prejudicial, but where I think they would fail the test is on substantial risk. The courts have consistently taken the view that the judiciary, magistrates included, are beyond the reach of the media where it comes to contemptuous publication.
So the AG's office may well say one thing, but their past prosecutions say quite another. Unless of course, this marks a new and even more aggressive stance by the AG in taking on the media over summary proceedings as well as indictable offences.
The only other possibility of a contempt would be if something were published that would be seriously prejudicial of a witness testimony at summary proceedings, in which case the CCA 1981 would certainly apply.
In my view, based on the record of past prosecutions, it is not possible to prejudice a magistrate and thus fall foul of contempt law when the proceedings are for a summary offence.
Thanks David and your comment is, of course, correct in many aspects.
DeleteHowever, my point is that which you alluded to in your first paragraph: It is wrong to allow unmoderated comment on active proceedings.
At a time in which the press is under enormous scrutiny, mistakes - for I believe them to be oversights based upon a lack of care and attention for a publishing arm - like these do not help.
Hypothetically speaking, if a commenter were to post about a previous (and as far as I am aware fictional) conviction that John Terry had for racially aggravated/motivated crimes then it could constitute a serious breach.
Bearing in mind Leveson and the recent Christopher Jefferies 'scandal' I suspect that the AG may well be looking to become stricter.