This guide is based on UK law and was written in January 2009.
Matters are considered to be sub judice (Latin for 'under judgment') once legal proceedings become active.
Criminal proceedings are deemed active once a person is arrested, a warrant for arrest has been issued, a summons has been issued or a person has been charged and remain active until conviction. Civil proceedings become active, in England, when the hearing date for the trial is arranged and, in Scotland, when the parties' pleadings have been finalised and the record is closed.
Publication of material which is sub judice comprises contempt of court, a crime which is punishable by a fine of unlimited amount and/or imprisonment for up to two years. Third party costs orders may also be awarded against the media organisation, enabling the courts to recover the costs of any trial aborted as a result of the prejudicial reporting.
There are two forms of contempt of court:
- statutory contempt of court under the Contempt of Court Act 1981, which criminalises the publication of material which creates a substantial risk that the course of justice in the relevant proceedings would be seriously impeded or prejudiced; and
- common law contempt, which targets any other action which is intended to interfere with the administration of justice, including interfering with pending or imminent court proceedings.
Both statutory and common law contempt of court are concerned with the possibility that a juror, witness or lay judge may be influenced by material which is published about active legal proceedings. Accordingly, any of the following activities could be considered to be contempt:
- obtaining or publishing details of jury deliberations;
- filming or recording within court buildings;
- making payments to witnesses;
- publishing information obtained from confidential court documents;
- reporting on the defendant's previous convictions;
- mounting an organized campaign to influence proceedings;
- reporting on court proceedings in breach of a court order or reporting restriction;
- breaching an injunction obtained against another party;
- anticipating the course of a trial or predicting the outcome; or
- revealing the identity of child defendants, witnesses or victims or victims of sexual offences.
However, it is acceptable to publish material as part of a discussion of public affairs or as a contemporary report of the day's legal proceedings.
Liability and defence
Statutory contempt of court: Liability for statutory contempt of court is strict. This means that the publisher cannot escape liability by arguing that he had no intention of prejudicing on-going legal proceedings or that he did not know that the material was sub judice. The degree of prejudice which results from the publication is also irrelevant; it is sufficient that there was a risk that the proceedings would be substantially prejudiced.
However, a limited number of defences to statutory contempt are available to a publisher, namely that the material comprised a fair and accurate contemporary report or a discussion of public affairs, and, more significantly, that publication of the potentially prejudicial material was made innocently. This last defence applies only where the publisher did not know and had no reason to suspect that the proceedings which featured in the material were active.
Common law contempt of court: Intention is necessary to commit common law contempt. The material must have been published with the design to prejudice criminal proceedings that are pending or imminent, a definition which introduces a fine line between pressing for prosecution, which is acceptable, and influencing public perception of an individual who is about to be prosecuted, which is forbidden. There is no defence for publication in the public interest, but a court would need to consider the requirements of article 10 of the European Convention on Human Rights and the need for proportionality in view of any legitimate purpose which the publication may serve.
Significance of knowledge of content
The key to prosecution for either form of contempt of court clearly lies with the publisher's knowledge of published material. In the case of statutory contempt, the focus is on awareness of the content of the material published or the status of proceedings. With common law contempt, intention to prejudice is key; honest mistake would be a complete defence to any prosecution.
The importance of knowledge was reinforced when a High Court ruling, issued to protect the identities of the killers of James Bulger, a two year old boy who was abducted and murdered in 1993 by two eleven year old boys, was amended following a challenge by a UK ISP. The revised prohibition on publication of information regarding the killers' new identities confirmed that an ISP would not be in breach unless it knew that its service contained or could contain prohibited material or provided or could provide access to such material. Lack of knowledge of the nature of the material is also a prerequisite to those who hosted or cached the material benefiting from the defences available under the Electronic Commerce (EC Directive) Regulations 2002. These defences are discussed further below.
In respect of statutory contempt, a publisher accused of breaching the sub judice rule can argue that he was not aware of the content of the material published or that the proceedings were active. However, to succeed, the publisher must show that he took all reasonable care to confirm the status of the material.
The publisher's task is straightforward, if mundane, where he is actively involved in sourcing and compiling the material. But where the content is being provided by external sources, the publisher's ability to monitor the material becomes much more difficult, although his legal responsibilities remain as stringent.
Liability for user-generated content and available defences
In the traditional media, publishers with only a tenuous link to the editorial process, such as printers and newsagents, sometimes use lawyers' opinions for assurance that the material which is being provided to them for printing or distribution does not contain matters sub judice and that the lawyer has no reason to suspect that the materials are likely to contain such matters. But this approach obviously cannot work in the case of user-generated media where the publisher will be unable to obtain guarantees of any value from the content provider.
The requirement for intention to prosecute under common law contempt means that prosecution, particularly for user-generated content published in breach of any restriction, is more likely to be based on statutory contempt. Its strict liability means that publishers (and any other entity involved in the chain of publication and distribution of the material, from editor to salesperson) can theoretically be held liable for any user-generated content on their webpage which contains material in relation to matters sub judice. Liability may also extend to publishers who link another, foreign, site, the content of which would be in contempt of court if published in the UK.
In practice, use can be made of the 'innocent distribution' defence, i.e. the publisher was not aware that the material related to matters sub judice. Obviously, this defence is no longer applicable once the publisher is notified that publication of the material would be contemptuous. Thus publishers should take action to remove any material which they have been informed is in breach of any restriction on publication.
Speedy removal of user-generated content material which has been identified since publication as sub judice should also entitle the publisher to the benefit of a statutory defence under the E-Commerce Regulations. The E-Commerce Regulations state that a host cannot be criminally sanctioned or liable for civil damages if it was unaware that the material is unlawful and, on becoming aware, it acts expeditiously to remove or disable access to the information. Similar defences are available for entities that cache information or act as 'mere conduits'.
What action should be taken?
Publishers should not assume that users will respect court-imposed restrictions on content.
In the case of Baby P, a 17 month old boy who died in 2007 as a result of injuries sustained from repeated abuse, the names of the child, his mother and boyfriend were published on numerous blogs and social networking sites by users who were either choosing to deliberately breach reporting restrictions or were unaware of the sub judice rule. Site moderators were kept occupied removing references to the individuals' identities which were posted by users as well as attempting to ascertain whether the details had been indexed or cached before they were removed from the forum.
In respect of user-generated content, most sites follow the 'notice and take-down' approach whereby publishers remove potentially-unlawful content quickly upon receiving notification.
Some sites also use automated monitoring. In 2006, the New York Times used technology to block British visitors to its website so that it could report on a terrorism trial. The material used in the report was believed to be sub judice in Britain. However, advice should always be sought in individual cases to confirm that any such automated measures are appropriate.
What is considered to be 'taking reasonable care' will change as more sophisticated monitoring technologies become available. Publishers should periodically review their procedures to ensure that they will still be seen to be sufficiently rigorous and that their response to already published material, whether removing it or disabling access, is sufficiently prompt.