This tragic case has raised several issues from a media law perspective. The first was the anonymity of the defendants, and the second (the detail of which has only come to light in the last week) was the collapse of the original trial due to prejudicial comments on social media. It is the latter with which this column is concerned.
This case is the first time the court has had to consider the prejudicial nature of comments posted on social media, and crucially, the steps that should be taken to protect the integrity of the trial.
In a judgment only made available this week, Sir Brian Leveson looked at the issue following an appeal by the BBC and eight other media organisations.
Following Ms Wrightson’s murder in December 2014, the two defendants initially stood trial for murder in July 2015. Local and national media covered the trial, and published fair, accurate and reasonable reports of the proceedings. Links to these reports were posted on the media organisations’ social media pages.
However, at the end of the second day of the trial, the court’s attention was drawn to numerous adverse comments which had been made on Facebook by members of the public. The comments had been made on the media organisations’ Facebook posts which linked to their coverage of the trial.
The jury was discharged on application by both the prosecution and defence, on the basis that the defendants could no longer have a fair trial.
The trial judge, Mr Justice Globe, put a wide-ranging order in place pursuant to a little known power contained in S.45(4) of the Senior Courts Act 1981. The restriction prevented the posting of coverage to social media by the organisations, as well as restricting comment facilities and links to social media on the organisations’ own websites.
The media made representations to the effect that the order was disproportionate and unworkable in practice. As a result, Globe J instead made a postponement Order which prevented reporting of the case until verdicts had been returned in a retrial.
Following an unsuccessful appeal to the Judge himself to overturn the postponement Order, the media organisations appealed to the Court of Appeal. The final outcome was that a revised S.45(4) Order was made, which:
• Prevented reports of the trial from being placed on Facebook;
• Made media organisations disable the comment facilities on their own websites, in relation to coverage of the trial; and
• Directed that the Order be published to the Press Association.
Why is this case noteworthy?
Well, because it is the first time we have seen a senior court impose explicit restrictions on the posting of comments on media organisations’ websites and restricting their use of Facebook.
Posting links to stories on social media is now a crucial part of the regional press’ business model, and any restriction on this is highly problematic, and a severe restriction on freedom of expression.
In his judgment, Sir Brian Leveson called for the Attorney General to consult on the issue of social media and contempt, and provide guidance to the media. It is clear that the laws of contempt are yet to catch up with modern social media, and in order to protect the right to a fair trial, and the integrity of journalism, clear guidance is needed.
That said, any restriction on the media’s right to disseminate its fair, accurate and reasonable coverage of criminal proceedings is worrying, and should be resisted.