In this issue
Welcome
Are Internet Giants Beyond The Reach Of The Law?
Hong Kong Case Summaries
Northern Ireland Case Summaries
Appeals against conviction - England and Wales
Appeals against sentence - England and Wales
Are Internet Giants Beyond The Reach Of The Law?

By James Wood QC



 

Fresh from attempts to clean up the internet on behalf of a high profile criminal client, James Wood QC puts out a personal plea to the Court of Appeal to take on digital media organization and “fake news” outlets, to ensure that, like the mainstream UK media, they play their part in ensuring that internet material, which is grossly prejudicial to an accused, and which can impact on the fairness of the trial process can be properly regulated and removed during the trial process.

 

Whilst the Government struggles to secure concessions from internet giants such as Facebook, Google, Twitter and other digital media bodies on the editing of content promoting terrorism, portraying violence, and intruding on privacy, it does not appear the UK courts, and the Court of Appeal have begun to engage with the reluctance of these bodies to engage in the fair trial issues raised by their UK based internet publications.[1]

 

Mainstream UK media organisations responsible for broadsheet and red top newsprint papers appear to have shown themselves to be responsible, by their participation in attempts to ensure that the Contempt of Court Act reporting provisions are not high jacked by the welter of potentially prejudicial material upon the internet pertaining to certain individuals. Their approach is to be commended and contrasted with the apparent reluctance of world dominating electronic media giants, controllers of computer search engines and international electronic encyclopedias, to become involved in fair trial issues. These organisations continue to fail to take any significant steps to co-operate in the removal of either chat room material, or historic internet or search engine  material which can impact gravely on the fairness of trial.

 

Despite early decisions to rule convictions unsafe on grounds of adverse publicity in cases like the Taylor sisters[2] and McCann[3], the Court of Appeal, since Abu Hamza[4], has set itself against finding unsafe, convictions obtained in the face of grossly adverse publicity[5]. That message has now been clearly heard by trial courts, who look, in cases involving significant adverse publicity impacting upon trial fairness, to jury directions, and the co-operation of the media, rather than contemplating the staying of proceedings on grounds of abuse of process. As the Court of Appeal said in Guardian News and Media Ltd [2016] EWCA 58, the emphasis now is all on “(a) appropriate jury directions about not conducting internet searches and focusing only on the evidence in the case; (b) the "focusing effect" of listening to evidence over a prolonged period in the immediacy of the court environment; (c) the integrity of juries and their own commitment to the fairness of the trial process”[6]. Nowadays one could only envisage the possibility of a stay on grounds of adverse publicity in the most extreme of cases were in probability the prosecution have deliberately and maliciously manipulated the press coverage to achieve an unfair trial.

 

Whilst there are practical steps which can be taken to minimize damage to the trial process by continued adverse publicity, these are limited, and are now largely dependent on the co-operation of the mainstream media, who thankfully frequently appear willing to co-operate to minimize damage, by appearing, represented, at court, and on occasion voluntarily removing material. Frequently potentially offending articles can be removed for the duration of a trial upon written request. This response is to be contrasted with that of those new news media organization which dominate the Gig economy, and who seem wholly reluctant to co-operate with the courts and engage with the trial process.

 

Concern is justified, for despite the creation of a new criminal offence[7] prohibiting jurors from intentionally seeking information, knowing or believing the information may be relevant to the case; research had indicated that despite being told not to do so by trial judges, 12% of jurors searched the internet for material concerning their trial in high profile cases.[8]

 

The problems which occur when the publishers of the offensive material are organisations such as Wikipedia or Google or other search engines stem from the fact they claim not to be publishing in this jurisdiction, but rely (for example) on the protections of the American constitution when responding to UK based requests for deletion. For example Google recently sought to hide behind the US jurisdiction even when ordered by, for example, the Canadian Supreme Court to take material down.[9] In Gonzales v Spain[10] the European Court struggled to assert jurisdiction over Google Inc. in California for publishing personal information in Europe, and Google subsidiaries in the UK, apparently have yet to engage at all in fair trial issues concerning  search engine and chat room product published to UK computer users. Without co-operation, it would seem comments by members of the public in chat rooms, on You Tube, Twitter or Facebook, are almost impossible to restrain, even if their content is contemporaneous to and likely to jeopardise a fair trial.

 

There are, though, some clearly defined steps which can be taken and Lord Justice Fulford’s ruling against national newspapers in Harwood  20th July 2012[11] set out some useful criteria, which should be enforced. In paragraph 37 he ruled that material which remained on the internet continued to be published for the purposes of the strict liability rule in Section 2 of the Contempt of Court Act. He stated:-

 

“Publication is defined in section 2(1) Contempt of Court Act as including “any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public”. I remain of the view that the words “at the time of the publication” in section 2(3) encompasses the entire period during which the material is available on a website from the moment of its first appearance through to when it was withdrawn (see Her Majesty’s Advocate against William Frederick Ian Beggs supra and Godfrey v Demon Internet Ltd [2001] QB 201 at 208 – 209).”

 

Section 45 of the Supreme Court Act gave the Crown Court the same power as the Supreme Court, he ruled, in issuing injunctions to prevent publication during the trial.

 

The Court of Appeal have adopted the same approach in R v F and D [2016] EWCA Crim. 12. The Court was invited by the press to review the orders of Globe J in discharging a jury when a torrent of abuse had been leveled at two teenage defendants in comments posted upon a local newspapers report of the opening of the trial. Press appeals were rejected and the court ruled

 

“We have no doubt that the publication on social media of comments of the type which caused Globe J to discharge the jury in Teesside would create a substantial risk of serious prejudice which could easily threaten a second trial as it undermined the first. Testing it another way, it is inconceivable that a responsible media organisation would allow comments on their own websites of the type of which complaint is made: even if comments of any sort were permitted (which we doubt) they would be moderated and excluded. We see no reason why the approach should be different when the report is copied onto the media organisations’ Facebook or other social media site.

 In the light of this conclusion as to prejudice, [counsel for the responsible press] did not oppose an order pursuant to s. 45(4) of the Senior Courts Act 1981.”

 

The comments in F and D were directed to a humble local newspaper which had found itself embroiled through its comments section in the abandonment of a trial. The comments of the court about Facebook have (in the experience of this author) never yet led to any restraint of any search engine by any court as to it’s content on fair trial grounds. The apparent refusal of these organisations to engage in the process of securing a fair trial, by being open to the editing of prejudicial content on their servers, may ultimately risk, in this multi media “fake news” age, the very fairness of the jury trial process. In turn that may lead to regrettable calls for judge alone trial. Hence this plea for intervention and guidance by the Court of Appeal.



[1] See for example the efforts of the Home Affairs Select Committee in their report “Hate Crime: Abuse , hate and extremism online  (HC 609).

[2] [1994] 98 Cr App R 361

[3] [1991] 92 Cr App R239

[4] Abu Hamza [2006]EWCA Crim 2918

[5] See numerous authorities where there have been failures in such application.; Warren v A-G Jersey [2011] UKPC 10,  HMAG v Conde Nast [2015 EWHC 3322 (Admin) not to mention Brooks and Coulson at first instance

[6] See Guardian News and Media Ltd [2016]EWCA 58, citing Montgomery v HM Advocate [2003] 1A.C. 641, R. v B [2006] EWCA Crim 2692, [2007] E.M.L.R. 5 and Fraser (Nat Gordon) v HM Advocate [2013] HCJAC 117, 2014 J.C. 115 applied(paras 49-57).

[7] Section 20A of the Juries Act 1974 (as effected by the Criminal Justice and Courts Act 2015),

[8] Are juries fair? By Cheryl Thomas. MoJ Research Series 1/10, Feb 2010

[9] https://www.wired.com/story/google-fights-canada-order-global-search-results/

[10] ECLI:EU:C:2014:317

 

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