Material about a criminal trial which was published before the case became active should be exempt from the danger of action for contempt of court, according to new proposals from the Law Commission in England.
Instead, publishers should only be held liable for contempt if they were first told by the Attorney General that proceedings had started, and which material he considered likely to prejudice a defendant’s chances of a fair trial, but left the information available, the commission says.
The proposed reform is intended to end the current situation under which publishers, and the operators of online news archives, constantly face the risk of an action for contempt because of the presence in their archives of material which was published before a case becomes active.
Once a case becomes “active”, that is, someone is arrested or charged, or a summons or warrant is issued, news organisations and other publishers are bound by the strict liability rule.
This makes it a contempt of court to publish material which in a court’s view creates a serious risk of substantial prejudice to the proceedings.
But defence lawyers have argued that the same risk is created by material which was published before the proceedings were active and the strict liability rules apply if that material is still available, for example through an online archive.
The publisher or archive operator bears the responsibility of knowing when proceedings are active, and removing such material from the internet.
But the Law Commission says that publishers should not be held liable for contempt over material which was first published before proceedings became active and that the exemption should be lifted only if the Attorney General first tells them that the proceedings have become active, and points out the material he thinks could be prejudicial.