Harwood ruling raises question over online archives

A ruling made during last week's manslaughter trial of PC Simon Harwood could have major implications for the way online archives of news stories are managed.

The issue of when something is "published" on the internet was at the centre of Mr Justice Fulford's decision that two articles giving details of previous allegations against Pc Simon Harwood were a breach of the strict liability rule of the Contempt of Court Act.

Both articles were published in 2010, and had been available on the Mail Online archive since then, but only if a would-be reader actually searched for them, either on the website itself, or via a search enginee.

Section 2 of the Contempt of Court Act 1981 states: "The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication."

Mr Justice Fulford held that the phrase "at the time of the publication" actually "encompasses the entire period during which the material is available on the website from the moment of its first appearance through to when it was withdrawn".

These remarks prompted Des Hudson, managing director of the Herald, Sunday Herald and Evening Times in Glasgow, to say: "In the light of the ruling we have been looking at what we should be doing to comply. And we came to the view that we would have to be aware of every case and decide whether we had any material on our archive.

"The only way we could do that cost-effectively would be to take down the archives completely."

Jonathan Caplan QC, for Associated Newspapers, argued at a hearing before Mr Justice Fulford that the Contempt of Court Act, was concerned with material which was published and offered to the public on a contemporary basis – which did not cover material stored in an online archive.

During the Harwood case the Telegraph and Mail voluntarily took down archive articles which the trial judge said could create a risk of contempt.

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