Crown Court judges could be given the power to order newspaper publishers and other operators of online archives to block public access to material they believe causes a substantial risk of serious prejudice to trials, under proposals put forward by the Law Commission.
The plans are detailed in a Consultation Paper on Contempt of Court which sets out possible ways in which the law could be changed to try to bring it into line with the development of the internet and new media.
At present, newspapers, broadcasters and other news media can be held liable for contempt under the strict liability rule section 2 of the Contempt of Court Act 1981 if they publish material which creates a substantial risk of serious prejudice to the administration of justice when proceedings are "active" – that is, after someone has been arrested or charged, summoned, or a warrant has been issued for their arrest.
The issue is also tied up with the attitude taken by the courts to the issue of when something can be said to be published – some judges and lawyers take the view that the availability of material in an internet archive amounts to a continuing act of publication, although news media and others argue that publication is an act which takes place only when material is first released to the public.
The Law Commission consultation paper says that if it is accepted that publication is to be taken as meaning "time of first publication", then the issue arises of what can be done about material which is published and goes on to the internet before proceedings become active but which, after they are active clearly poses a risk of creating serious prejudice and of threatening a defendant's right to a fair trial, guaranteed by Article 6 of the European Convention on Human Rights.
To avoid this risk, the Commission says, courts should have the power to order that material should be taken down from the internet – and that failure to do so should be a contempt of court under the 1981 Act.
It says the continued publication online should become a contempt if:
1: A publication was made to the public at large or any section of the public before proceedings became active;
2: Proceedings subsequently become active;
3: The publication is still available to the public or a section of the public and creates a substantial risk of prejudice or impedance to the course of justice in the proceedings in question;
4: A court seeking to avoid that substantial risk has ordered the publisher to take such steps as are reasonably possible to stop the publication being available;
5: The order is made for a specific duration; and
6: The person subject to the order fails without lawful excuse to comply with it.
The Commission points out that "it is unusual to establish liability for consequences that arose because of a change of circumstances that occurred without someone's involvement and over which they had no control after their initial conduct".
In says that in the Scottish case of HM Advocate v Beggs (No 2)(SLT 139) it was held that the expression "at the time of publication" in section 2 could refer to the time during which the material was accessible on a web site, from the moment when it first appeared until it was withdrawn.
This view was followed in England by Mr Justice Fulford in one case, and has been followed in Australia.
The Law Commission said: "The proposed new contempt imposes liability only for a failure, without lawful excuse, to comply with a specific court order. In that sense, it is very similar to many other kinds of contempt of court," it says.
It goes on: "In the most straightforward and commonly occurring cases the new form of contempt would target the publisher alone. The author of the blog or the newspaper or broadcaster would be the one subject to the order to remove it temporarily from public view.
"The scope of potential liability would be much narrower under the new form of contempt than under the present section 2, as interpreted in Beggs," it says.
Under the current section 2, read with the defences in section 3 of the 1981 Act, liability can arise for any publication unless the publisher had no reason to suspect that proceedings were active. Section 3(1) provides a publisher with a defence only on the basis of a lack of knowledge or suspicion about whether proceedings are active.
Section 2 of the Act, it says, places an obligation on a publisher to to show that reasonable steps were taken to discover whether proceedings were active at the time of publication.
"In contrast, under the potential new contempt, there is no possibility of liability based on a publisher's actual or imputed knowledge about the proceedings becoming active after first publication. There is no reverse burden on a publisher.
"Liability will only arise for a failure of a person to comply with a court order to make such material as is specified in the order unavailable to the public for the specified period. We would expect that period to be the duration of the trial in most cases but it may be longer if there are multiple, related proceedings.
"We consider that such a provision would not place onerous and impractical burdens on publishers. They would have no obligation constantly to monitor their archives for material (which in the case of some media organisations will be vast) to ensure that proceedings have not become active in relation to a person or crime discussed in an earlier publication.
"Furthermore, if a party had a lawful excuse for not removing the publication that would provide a defence for not complying with the order. There is no question of imposing liability on those who are unable, through no fault of their own, to comply with the terms of the order.
"We suggest, however, that a publisher ought not to be able to rely on the excuse that a determined individual with sufficient technological ability might be able to acquire access by indirect means."
The Commission adds: "This proposal has many other advantages: it avoids any doubt or argument about whether a person was aware or ought to have been aware that proceedings had become active and it avoids arguments about the steps that might reasonably be expected of a person to monitor or identify such material. It also ensures that the burden is proportionate.
"The offending material will be specified (for example, by its URL address) in the court order so there is a limited burden in identifying it."
The period for which material would not be available would also be limited "a proportionate fashion", says the Commission, adding that this would ensure compliance with Article 10 of the European Convention, guaranteeing the right to freedom of expression.
The Consultation Paper says: "We propose that the courts be provided with a power to make an order when proceedings are active, to remove temporarily a publication that was first published before proceedings became active, which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
"Such an order shall be capable of being made against any person who is a publisher within the meaning of the 1981 Act and failure to comply with such an order without reasonable excuse shall be a contempt of court.
"Do consultees agree?"