UK Judge Rules Even Archived News Articles Can Be In Contempt Of Court

from the unintended-consequences dept

Wed, Jul 25th 2012 3:11am — Glyn Moody

Last week, the British policeman Simon Harwood was acquitted of killing a man during the 2009 G20 protests in London -- a controversial verdict given the video footage of the incident. In order not to prejudice their views, the jury was not informed that Harwood had been investigated a number of times previously for alleged violence and misconduct.

As a result of that requirement to withhold information about the earlier allegations, Associated Newspapers, which owns the Daily Mail, was found by a British judge to be in breach of the strict liability rule of the UK's Contempt of Court Act because of two stories about Harwood that it continued to hold in its archive, as this Press Gazette post explains:

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 engine.

The judge nonetheless held that the Mail Online was in contempt of court because of his interpretation of a key section in the relevant legislation: 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during which the material is available on the website from the moment of its first appearance through to when it was withdrawn".
The only way to avoid this problem would be for online news archives to remove articles from their holdings in advance of future court cases. But it's hard to see how this can possibly work when applied to every case across the UK. Either the search for relevant materials will be quick and superficial, and therefore run the risk of missing articles; or it will be so slow and laborious as to render it impractical. Some owners of news archives may decide it's not worth it, and simply withdraw access altogether; that would be a highly regrettable consequence of this ruling, and a real loss for everyone.

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Filed Under: archived news, contempt, journalism, reporting

32 Comments

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Anonymous Coward, 25 Jul 2012 @ 3:17am

Libraries
Can this apply to physical objects as well? Libraries will cause continual publication as long as they hold the material. Are all the books contained still in publication, then?
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Duke (profile), 25 Jul 2012 @ 3:21am

Technicality and Jury influence
Technically Harwood wasn't acquitted of killing the guy, but of manslaughter. Manslaughter (presumably "unlawful act manslaughter") has three steps, only one of which is that the defendant killed the victim, so Harwood may still have killed him.

As for the main point, this case seems similar to last week's mess with the BBC programme on the riots; in both cases you have a judge seemingly going to great lengths, inhibiting freedom of expression, to prevent a possible miscarriage of justice (i.e. jurymen being influenced by material from outside the courtroom).

I think this comes down to legal/cultural differences between countries; some courts, particularly the English and Welsh ones are very protective of their juries and will go to great lengths to ensure just verdicts are returned. It is possible they go too far sometimes.
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Tobias Harms (profile), 25 Jul 2012 @ 3:21am

Re: Libraries
My thoughts exactly and how about Google? And if someone has written about the guy in a blog...?

And why weren't the jury allowed to know that he has been acused before? I would be hard pressed to belive that would be the case if it was a "criminal" on trial instead of a policeman...

This is simply insane.
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Duke (profile), 25 Jul 2012 @ 3:28am

Re: Re: Libraries
And why weren't the jury allowed to know that he has been accused before?
I'm not an expert on criminal evidential procedures, but I imagine it wasn't allowed because it wasn't relevant to the case he was charged with (which was about a specific act) but might have influenced the jury into assuming he was a vicious, dangerous person from the start, rather than focusing on what he actually did on the day.

And yes, this sort of thing can happen in any case, but usually only if there is a good defence team.

As for libraries; this new ruling (although I haven't read it yet) probably turns on the idea of "publication". There's a general rule (if a slightly odd one) that a page on a website is published every time it is viewed, whereas a physical book is published only once. The library is probably safe.
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Anonymous Coward, 25 Jul 2012 @ 3:31am

typical UK ruling fuck up. if brains were dynamite, these stupid judges couldn't part their hair!!
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Anonymous Coward, 25 Jul 2012 @ 3:33am

Re: Re: Libraries
This is simply insane.

Yes. It is insane.

But who really expects basic sanity �or even common sense� from the courts?
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Chargone (profile), 25 Jul 2012 @ 3:36am

Re: Re: Re: Libraries
Kiwis, mostly, it seems :)

(seriously, our courts are usually pretty good like that.)
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Chargone (profile), 25 Jul 2012 @ 3:38am

Re:
if brains were dynamite, i'm pretty sure we'd all have bigger issues.
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That One Guy (profile), 25 Jul 2012 @ 3:44am

Re: Re:
I dunno, for some of these people seems it would work a lot better than what they're using now.
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Richard (profile), 25 Jul 2012 @ 3:58am

Presumption of Innocence
What a pity that Simon Harwood did not extend to Ian Tomlinson the same presumption of innocence that he has now enjoyed himself!
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Anonymous Coward, 25 Jul 2012 @ 4:04am

"The only way to avoid this problem would be for online news archives to remove articles from their holdings in advance of future court cases."

Not so. Until the work is found to be in contempt, they are operating under good faith. At the moment that the status changes, then they would need to remove it promptly.

It's one of the reasons why news aggregation type site run serious risk, because they are not able to know when a story has been struck.
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Anonymous Coward, 25 Jul 2012 @ 4:49am

Re:
... good faith...

Strict Liability Contempt under the Contempt of Court Act 1981

The strict liability rule may render the publication a contempt regardless of any intent to interfere with the course of justice in the proceedings.

(Emphasis added.)
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Anonymous Coward, 25 Jul 2012 @ 4:54am

Re: Re: Re: Libraries
That general rule is incredibly misplaced. In scientific research you have to give information on web-sources with date of visit and date of last edit. Since date of visit is mostly to indicate availability of it, the actual publication simply has to be the date of last edit. There are exceptions to the rule: If the site does not track release of information, you use the date of the sites creation. If not even that information is available, you do not indicate any date of last edit. In that case publishing should be assumed to have happened before the date of view, but there is no way it is fair to assume publication for each pageview. If you have systematic data on pageview it should be possible to backtrack the date of publication, but again, it is not a precise technique and should not count as evidence...
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abc gum, 25 Jul 2012 @ 5:04am

Apparently this judge wants the Daily Mail and the rest of the world to borrow Romney's time machine in order to remove past news stories.
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Anonymous Coward, 25 Jul 2012 @ 5:11am

Re:
... and the rest of the world...

Somehow, the Canadian courts have learned to live with American broadcast media violating their airwaves: IN UR TV, REPORTING ON UR COURTS. That is, when American broadcast media can be bothered enough to find Canada on a map.
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Anonymous Coward, 25 Jul 2012 @ 5:35am

http://arstechnica.com/tech-policy/2012/07/dc-police-chief-announces-shockingly-reasonable-cell-came ra-policy/

On the good news front DC police chief (aka: Cathy Lanier) announced the directives on how police officers should deal with being filmed in public/private space and it is shockingly reasonable.

Since I am an a-hole what I want to say is fucking yes!
Finally someone took some steps in the right direction.

That judge in the UK should take some cues from Ms(or is Mrs) Lanier there.
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Anonymous Coward, 25 Jul 2012 @ 5:57am

Re: Re: Re: Libraries
"...but I imagine it wasn't allowed because it wasn't relevant to the case he was charged with (which was about a specific act) but might have influenced the jury into assuming he was a vicious, dangerous person from the start, rather than focusing on what he actually did on the day."

Wouldn't it show a predisposition to commit violent acts, indicating he WAS, in fact, "a vicious, dangerous person from the start"?
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Anonymous Coward, 25 Jul 2012 @ 6:03am

Re: Re:
It does explain why my head asplode yesterday
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Nathan F (profile), 25 Jul 2012 @ 6:30am

Re: Re: Re: Re: Libraries
Had the man in question been convicted this information would most assuredly been brought up by the prosecution during sentencing for just the reasons you state.
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Duke (profile), 25 Jul 2012 @ 6:32am

Re: Re: Re: Re: Libraries
Yes, it could show such a predisposition... which would prejudice the trial. The question the jury was asked (assuming it was unlawful act manslaughter) would have been "was what he did dangerous?", not "do you think it was likely that he might have done something dangerous based on his actions in the past?"

If you tell the jury that he has been accused of being a dangerous thug or something similar, they're more likely to say "we're not sure whether or not he did this, but let's lock him up anyway."
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art guerrilla (profile), 25 Jul 2012 @ 6:54am

Re:
yes, forget where i saw the article, but i was *extremely* impressed with her lucid reasoning and actual humanity...
...until i saw that her 'reasonableness' was actually 'forced' upon her as a result of a lawsuit where they screwed with someone videoing a traffic stop or some such, a year or so earlier...
remember kampers:
the price of freedom is eternal vigilance !

ALL (repeat: ALL) secret/non-transparent organizations WILL become corrupted...
repeat: WILL become corrupted, P-E-R-I-O-D.

art guerrilla
aka ann archy
eof
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Dreddsnik, 25 Jul 2012 @ 6:59am

" that would be a highly regrettable consequence of this ruling, and a real loss for everyone. "

Or a very nice gift for corrupt politicians who want their dumb deeds of the past to disappear and be forgotten.
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Not a Cop, 25 Jul 2012 @ 8:05am

Re: Technicality and Jury influence
Well. I guess we can track him down and tape his hands in his pockets and throw him to the ground head first.
Maybe he might even survive. The first time.
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MrWilson, 25 Jul 2012 @ 8:08am

Clearly this ruling was paid for by the entertainment industry. They're trying to extend copyright by claiming that availability extends the date of publication, resetting the clock for the start of when the works get their infinity minus a day of copyright protection.
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NullOp, 25 Jul 2012 @ 8:18am

UK
The UK - like Canada but even more whacky!
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Tunnen (profile), 25 Jul 2012 @ 9:07am

Re: Re:
Way to go.... Now the TSA will be wanting to run everyone through a MRI scan now... =P
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Tunnen (profile), 25 Jul 2012 @ 9:13am

Re:
They retroactively retract the article? =P
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btr1701 (profile), 25 Jul 2012 @ 12:28pm

Silly
The fact that the UK still persists with this nonsense in an age where anyone can read newspapers from around the world as easily as they can read their local paper is beyond ridiculous.

Back when someone in London would be unlikely to have easy access to, say, the L.A. Times, maybe this stuff made practical sense in the UK, even if it's something that would be anathema under the American concept of free speech.

But now those same Londoners can sit in their living room and read newspapers from New York to Seattle to New Zealand as easily as they can read their local rag, and none of those papers are subject to UK gag orders. The New York Times can publish whatever it likes about a criminal case in England and there's nothing a British judge can do about it. And that information is as readily available to the jury pool in London as the Daily Mail is.
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Rekrul, 25 Jul 2012 @ 1:29pm

They should form a government agency to take care of removing old news stories from archives. They can call it the Ministry of Truth...
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G Thompson (profile), 26 Jul 2012 @ 12:38am

Re: Re: Re: Re: Libraries
predisposition or other information is irrelevant in a criminal case if it does not specifically relate to the matter at hand.

If mens rea (state of mind) was brought up it might be relevant, though highly unlikely, and just because someone has been found guilty of being an axe murderer bears nothing whatsoever on if at a later stage they are also charged and placed on trial for shoplifting etc. Each case is unique and has to be treated as such for impartiality.

This doesn't mean that if found guilty the historical data of previous wrongdoings is not used within a sentencing report, in fact it is normally of great relevance in sentencing and all the multiple strange guidelines that go along with sentencing.
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G Thompson (profile), 26 Jul 2012 @ 12:40am

Re: Re: Re:
your head ass-ploded??

dude that's fucked up!

Roflmfao
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G Thompson (profile), 26 Jul 2012 @ 12:46am

Re: Re: Technicality and Jury influence
And that threatening statement right there is why the UK and other common law countries have gag orders on court cases where the concept of fairness not needs to be shown but MUST be shown to all involved. let the jury and courts do their job NOT the media and general public who thrive on erroneous information, non reliable sources and drama.
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