The Court of Appeal in R (British Broadcasting Corporation & Eight Other Media Organisations) v F & D [2016] EWCA Crim 12 was faced with an appeal against an order under the Contempt of Court Act 1981, s. 4(2) which was directed at the press and intended to control vile social media comment posted on the Facebook pages of media organisations in a high profile and extremely difficult trial in which two young teenage girls are charged with murder.
The criminal proceedings concerned the brutal murder of Angela Wrightson by two young teenage girls from Hartlepool. As the trial preparations were made in July 2015, it became clear that the Hartlepool Mail’s Facebook posting which linked to its report of developments contained many comments which were threatening to the accused, derisive of their not guilty pleas or dismissive of the court process. The deputy editor of the Hartlepool Mail attended court on 3 July, where he informed the court that it was his newspaper’s intention to remove the Facebook post and thereby also the comments but he made it clear that other media organisations were posting links to their reports on Facebook which were generating similar comments.
“1. Remove any posted comments on any media reports or facility to leave posted comments upon such reports from any website under their control that is publishing material relating to the trial.
2. Remove links from the said websites to any other websites (including Facebook and other social media networking organisations).
3. Prohibit the publication of posted comments on any media report of the trial on websites under their control.
4. Refrain from providing links from reports relating to the trial on those websites under their control to any other websites (including Facebook and other social networking organisations).
5. Refrain from issuing or forwarding tweets relating to the trial.”
Globe J admitted that he had not foreseen the avalanche of public outrage recorded on social media in reaction to media reports. He agreed with counsel for prosecution and defence that it was impossible to continue with the trial because there was a real risk of injustice to the defendants and, accordingly, discharged the jury. A new trial was set for February 2016 at a different venue. That trial concluded in April 2016 and resulted in convictions which were then widely reported.
Nine media organisations then made representations to Globe J and argued that the court had no jurisdiction to make the order, it was disproportionate and was unworkable. The prosecution and defence in the criminal trial responded that since no practical solution to the risk of prejudice created by the provision of a platform for public comment during the trial had been offered and if, as asserted, the wording of the initial order was unworkable then that must lead to an order completely restricting reporting under the Contempt of Court Act 1981, s. 4. That was the order made: ‘ the publication of any report of these proceedings or any part of these proceedings is postponed until the return of the verdicts in relation to both defendants or further order of the court’.
The media organisations applied to Globe J to revoke that order and there was a hearing on that issue in October 2015. Counsel for the media organisations told Globe J that the only way to remove the comments link from a media organisation’s profile page on Facebook is to remove the whole Facebook link to the media organisation itself: the comments link is built into the hardware and is part of the functionality of the platform. In light of that and limited undertakings offered by the media, Globe J was not persuaded to alter his order restricting, or more properly postponing, reporting of the trial.
On the media’s appeal, Sir Brian Leveson, who knows a thing or two about the press, gave the lead judgment in the Court of Appeal (Criminal Division). The media’s case that the robustness of the jury process should be given great weight, referring to past cases and research that suggest that a jury can focus on the evidence in court, and that jury trials had proceeded following clearly prejudicial press coverage in notorious cases (such as that involving Fred West) was not successful. Sir Brian Leveson said that comparison with the West case was misleading because there was no ‘fade factor’ as modern social media comments are immediately available at the click of a mouse. The Court did not accept that those trawling the internet would not go beyond the first page:
‘There is a real risk that those interested in the subject matter would continue to scroll down comments, or potentially worse, search out the most ‘likes’ which are themselves likely to be the most inflammatory … 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 so no reason why the approach should be different when the report is copied onto the media organisations’ Facebook or other social media site.’
The Court was wary of making broad policy statements that would influence future trials but saw it s appropriate for the Attorney-General to consult and issue guidance. In the event the Court closed with a reminder that anyone posting a comment on a publicly available website which creates a substantial risk of causing serious prejudice faces the potential prospect of proceedings for contempt of court and that this applies not just to media organisations but to individuals who run the risk of causing real difficulty to the smooth progress of a fair trial for defendants. The order made by Globe J was discharged but, in its place, the Court ordered ‘media organisations, until verdicts in the criminal trial or further order (a) not to place any report of the criminal trial of F and D on their respective Facebook profile page or pages and (b) to disable the ability for users to post comments on their respective news websites on any report of the criminal trial published by the media organisations on their websites’.
Laurence Eastham writes:
The Court of Appeal, and Globe J, are to be applauded for a sensible solution in a difficult situation, and for restricting their comments in recognition of the complexity of the issues. I cannot help wondering whether the dangers from this approach to restricting reports might be capable of being abused in a quasi-political trial on terrorism charges (where ‘vile’ comments might well be expected). In light of the Incedal case, which involved restrictions on reporting for security reasons, and this ruling, the press might well feel that respect for their freedom is in decline. The balancing act involved, though well performed by judges here, might not always be best left to them. It is yet another case of social media changing the landscape.
