An online list of court reporting restrictions orders should be made available to journalists alongside a paywall-protected site carrying full details of restrictions imposed by the courts, the Law Commission says.
The establishment of an online database of reporting restrictions is recommended in the Commission’s second report on Contempt of Court, covering court reporting, published today.
The Commission calls for two online sites, the first of which would be free to access and would list current orders under section 4 (2) of the Contempt of Court Act 1981.
It would carry simply the name of a case in which an order had been made as well as the date on which it was made and the date on which it will expire.
However the second site would be a restricted access site – for which the users, such as media groups – would pay, which would additionally contain the terms of each section 4 (2) order.
A potential publisher – a media organisation, newspaper or citizen journalist or blogger – which accessed the publicly available list and saw the name of a case they wished to cover would be directed by the website to telephone the court at which the case was being heard so as to discover further details about the terms of the order.
“We considered whether, in addition to giving access to the fact an order was in place, the online list could carry details of the terms of section 4(2) orders, to give potential publishers more guidance,” the Commission says in its report.
“On further discussion with key stakeholders, however, concern was expressed that this would push the balance too far in favour of disclosure, at the expense of protecting the sensitive information that section 4(2) orders are designed to restrain.”
The restricted access database with full details of orders would be the answer to this problem, the Commission suggests.
It goes on: “We recommend that the cost of administering this more detailed database be borne by its users, and hence that there would be a subscription charge for access to the fuller list.
“We consider that charging for this extended service is justifiable, since those potential publishers who did not wish to pay would still have access to the basic list free of charge and would be able to enquire as to the details of any orders in which they were interested in the usual way, by contacting the relevant court.
“This would provide potential publishers with a cheap, easy and safe method of avoiding contempt liability.
“For those who wanted to pay for the convenience of electronic access to the terms of the order itself without the need to enquire with the court (and also possibly the option of an automated e-mail alert when new orders were made) the restricted list would provide that option.
“In addition to keeping costs to the public purse down, charging for access to the extended list would have the further advantage of ensuring that users of this extended service were traceable.
“Paying for access using a bank transfer, debit or credit card would enable users’ identities to be verified and linked to a UK postal billing address (either an individual’s home address, or a media organisation’s business address).
“This would enable users of this restricted list to be traced, in the rare case that the content of an order were re-published more widely, in breach of the order, and consideration was given to committing that user for contempt of court.”
The Commission also recommends that when reporting restrictions cover publication of the names of parties to the proceedings, or others who might be identified if the parties’ names were known, the online list should simply identify cases by number, with a suitably anonymised case name, and warn potential publishers that the case number rather than the name is the determinative identifier.
The Commission’s recommendation currently covers only orders made under section 4 (2) of the Contempt of Court Act 1981.
But the report says that there was strong support from some consultees for increasing the scope of the proposed online list to cover other types of reporting restrictions.
It adds: “If, as we anticipate, the system works well when limited to section 4 (2) orders, then this can be treated as a pilot scheme in itself for a more ambitious system for publicising all reporting restrictions.”
Media organisations have been calling for some years for the Government to establish an online database of all current reporting restriction orders, arguing that it is difficult if not impossible to check details because court staff are not available out of normal office hours, or files cannot be accessed even if they can be contacted.
There were talks on this issue between media groups and the previous Labour government.
But these ended after it emerged that the government was considering handing the establishment and operation of such a database to a commercial company, which would have charged what one media group member described as “eye-watering” amounts for access to the information.
Media organisations have frequently made clear their view that they should have free and ready access to details about reporting restrictions, because breaching an order can lead to a criminal prosecution or proceedings for contempt of court, and also because imposing a charge would be an infringement of their rights to report courts properly.