LEGAL UPDATE 03.03.06

Last week an Egyptian court sentenced three journalists to a year in prison for libel over their report that the home of their country’s former environment minister had been searched as part of a corruption inquiry. Then the Chinese government released Yu Dongyue after 16 years in prison for "counter-revolutionary destruction" after he threw paint over Mao’s portrait in the Tiananmen Square protests in 1989.

Could imprisoning journalists for criticising politicians happen in Europe? It actually happened last month in Poland where journalist Andrzej Marek was sentenced to three months imprisonment after he libelled a local official by claiming that he had abused his position to promote his advertising business. Luckily for Andrzej, a higher court stepped in after a few days and suspended his sentence, but the principle remained: a journalist working in the EU had been imprisoned for libelling a politician. What therefore are the chances of a UK journalist seeing the inside of Wormwood Scrubs?

Firstly, criminal libel still exists in this country, and is punishable by imprisonment or a fine. Private prosecutions are relatively more common than the Crown bringing a claim, as shown most famously by Sir James Goldsmith’s case in the 1970s against Private Eye, and have some advantages for a claimant. For example, one can criminally libel a dead person (their estate brings the claim) and the defences available are more limited. But as private prosecutions can be taken over by the crown and abandoned, and require a higher standard of proof, the chances of a journalist being convicted for criminal libel are fairly low. However, the risk exists elsewhere in the world, where criminal libel is used more frequently than in the UK. Given that the vast majority of newspaper articles these days are reproduced on the internet, and often only one hit on an article is enough to prove publication in many countries, then journalists could be committing criminal libels across the world every day.

It is not just non-European countries that rely principally on criminal libel laws to keep the media in check: just across the Channel, Sir David and Sir Frederick Barclay have brought criminal libel proceedings in a Paris court against The Times, its editor Robert Thomson and media editor Dan Sabbagh. The Barclays complained that a Times article libelled them in relation to their business dealings and they can bring proceedings in Paris because they live in Monaco. They would probably have been entitled to bring proceedings in most countries where the article was published, but chose France. If found guilty, they are unlikely to languish in the Bastille, but could be fined and may receive a criminal record, which is not something anyone wants on their CV.

Secondly, contempt of court, which can be conveniently divided between criminal and civil contempt. Criminal contempt is an act that so seriously threatens the administration of justice that it warrants punishment from a public point of view. Civil contempt involves disobedience of a court order. Being found to be in either type of contempt can result in hefty fines and, not unusually, a prison sentence. A classic example of criminal contempt is when an article creates a "substantial risk that the course of justice could be seriously impeded or prejudiced" — for example, naming the defendant in advance of a criminal trial where mistaken identity is claimed. This might be an obvious risk of a serious impediment to the course of justice, but the courts are very protective of their rights to administer justice without any form of external interference: in 1986, a court sentenced a woman to seven days imprisonment for shouting from the public gallery that the judge was biased. Would a leader writer shouting the same thing from the pages of an editorial be treated any differently? There are specific ways a journalist could face a two-year prison sentence, for example by jury disclosure, misusing recording equipment, failing to disclose sources or naming a complainant in a sexual assault case.

Civil contempt boils down to breaching a court order. While the court will give a journalist plenty of opportunity to comply, if there is repeated refusal to do so (for example in refusing to reveal sources)

the court can imprison offenders for up to two years and impose a substantial fine. Finally, journalists are not immune from criminal laws even if they argue an overriding public interest in committing a minor crime to secure a scoop. Last month, a Daily Mirror journalist was arrested for the exotically named "attempting to secure a pecuniary advantage by deception" (i.e. lying on his CV to get a job inside Buckingham Palace), which shows how seriously the police take such activities. It is no defence to claim that the journalist was acting in the public interest, however vital the story.

Rod Christie-Miller is a partner at Schillings

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