Strictly Liable: Risking Online Contempt of Court

June 2, 2008

Website operators and others involved with websites are increasingly becoming aware of the particular risk posed by the instantaneous and global reach of the Internet in the context of contempt.

In view of the proliferation of articles dealing with risks faced by website operators in respect of defamation and intellectual property laws, the relative paucity of commentary about contempt is somewhat surprising. Perhaps it can be explained by the lack of case law on the topic. But, given the Internet’s central role in delivering news and the ability through search engines to assimilate information very quickly on a particular person or case, common sense dictates that it is only a matter of time before a website operator falls foul of contempt laws in one or more jurisdictions.

Comments earlier this year by the former Lord Chancellor, which prompted a hasty response from the Attorney-General’s office, have once more brought the issue of contempt of court and the Internet to the fore. Lord Falconer would advocate a system whereby Internet publishers were required to remove from their archives any information about contentious cases appearing on a list published by the Attorney-General. The comments sparked a backlash of comment from media organisations, not least because of the apparently contrary view Lord Falconer expressed as Lord Chancellor two years previously that Internet publishers should not need to scour their archives to check for such material unless there was a substantial risk that the material would be accessed. So where do Internet publishers, in particular website operators, stand in relation to liability for contempt?

This article considers the potential impact of the laws of contempt on those who host Internet comment. It also considers whether website operators may take comfort from the E-Commerce Regulations 2002, and how protection for hosts under those Regulations can be consistent with the strict liability offence under the Contempt of Court Act 1981.

Relevant Contempt

Contempt of court encompasses a wide range of conduct which interferes with or impedes the administration of justice. Under the common law, contempt can arise from breach of a court order, judgment, or undertaking given to the court, unacceptable behaviour in court, or prejudice to potential criminal proceedings or civil jury trials. It can also extend to general interference with the course of justice, without affecting particular proceedings. An intention to interfere with or impede the course of justice is required for there to be criminal contempt, but is not necessary for civil contempt under the common law.

The kind of contempt most likely to be relevant to website operators, however, is strict liability contempt under the Contempt of Court Act 1981 for publications which create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced. Proceedings are deemed ‘active’ from the earliest of the time of arrest without warrant, the issue of a warrant for arrest, the issue of a summons to appear, the service of an indictment or other document specifying the charge, or oral charge until acquittal, sentence or another verdict ending the proceedings, discontinuance or by operation of law.

The penalties for contempt of court include a fine, a writ of sequestration, or imprisonment, although the court will not exercise its powers of sequestration or imprisonment where the contempt is accidental.

The legislation has traditionally been used to prevent journalists publishing information about ongoing criminal trials which might prejudice the jury. For example, it was only after the conviction of ‘hammer murderer’ Levi Bellfield in February that the media were allowed to publish evidence linking him to the murdered schoolgirl Milly Dowler. Yet information was on the Internet waiting to be discovered long before that.

The Act applies to material which is published in any form and addressed to the public at large, or any section of the public. This clearly encompasses information appearing on the Internet.

Contempt Headaches

Contempt presents something of a headache for website operators. With the international reach of the Internet, contempt laws could be brought into play in every jurisdiction where content is published. Even on a domestic level, where the legal landscape is more familiar, website operators tread a difficult path. It may be straightforward enough to ensure that controlled content does not infringe copyright or even that it does not constitute libel. But unvetted user-generated content carries further complications for those ultimately responsible for its publication over the Internet if clearing that content requires carrying out checks in each jurisdiction for ‘active proceedings’.

To what extent are website operators expected to control site content and its distribution to avoid contempt? And how effectively can they realistically do that?

Managing the Risk

In terms of managing the risk of liability in foreign jurisdictions, there is an increasing awareness of the use of geo-IP filtering software and geo-location tools. Internet users’ locations can be identified with a reasonable amount of accuracy through geo-IP filtering software such as Quova. In 2006, the New York Times used geo-location tools to restrict access to a story about an investigation into a suspected terrorist plot because of concerns that it would infringe English contempt laws. In 2000, the French courts allowed Yahoo! to rely on geo-location tools to restrict access in France to Yahoo! sites selling Nazi memorabilia. But if every operator chose to take this cautious step of limiting access, this would undermine a key benefit of the Internet – its global reach, enabling users on one side of the world to interact with and view content from users on the other side of the world, instantaneously.

Who is the Publisher

It is regrettable that the Contempt of Court Act 1981 has not yet been amended to account for communication via the Internet. This has resulted in some uncertainty over who is liable as the publisher, and when the material is deemed to have been published. Traditionally, those who play a mere facilitative role in making material available, such as libraries and postal services, have not been held to be publishers. By contrast, those who play a more active role, such as printers and editors (even where they are unlikely to have reviewed the material) are regarded as publishers. The position is similar in defamation, where focus has centred on the level of control that is exercised over content. It has been held that where someone acts as a mere facilitator, they will not be liable for the material that has been communicated, whereas if they play an active role in selecting or editing content, they are likely to lose the benefit of the defence under s 1 of the Defamation Act 1996, and be held liable as publishers.

The question of when material is deemed to have been published is of key importance in determining whether an offence has been committed, since it is only when material is published whilst proceedings are active that liability under the Contempt of Court Act 1981 is triggered.

In the Scottish case of HM Advocate v Beggs 2002 SLT 2002, the High Court of Justiciary considered the point at which material available on the Internet was deemed to be ‘published’ for the purposes of the Contempt of Court Act 1981. It was held that publication occurred when, and continued for as long as, material was available. This is in contrast to the position in defamation where material is published when it is downloaded and read. This seems to reflect the fact that contempt liability addresses the risk of proceedings being prejudiced, whereas defamation addresses damage to reputation rather than the risk that something is said which might be overheard.

Liability for Contempt

The key feature of contempt liability that will concern website operators is that it is a strict liability offence, ie there is no need for the prosecution to prove intent to interfere with or impede the course of justice. So what safeguards are there for operators? For a start, there are the defences built into the legislation. The law permits good faith discussion of matters of public interest, innocent publication, innocent dissemination (for distributors) and fair and accurate reports of legal proceedings held in public, published contemporaneously and in good faith.

The innocent publication defence is potentially the most useful to website operators. The Contempt of Court Act 1981 provides a complete defence if, at the time of publication, having taken all reasonable care, the publisher does not know and has no reason to suspect that relevant proceedings are active. Cases have focused on the steps a traditional publisher should take to ensure that proceedings are not active. This assumes that the publisher takes an active decision to publish the material, which is not the case with hosts of user-generated content or of archived content they have published according to the test above. It is not clear what level of care would be deemed reasonable in a situation where a publisher, such as a website operator, does not select or edit the material published by third parties, and is unaware of the existence of the material, let alone the proceedings to which it might relate and whether those proceedings are active.

Where does that leave those who create websites which include user-generated content, for instance?

An answer may lie in the Electronic Commerce Directive (2000/31/EC), as incorporated into UK law by the Electronic Commerce (EC Directive) Regulations 2002. Designed to protect ISPs from criminal and pecuniary liability, they may apply equally to website operators. However, there is little judicial guidance on the application of the Regulations to website operators, and varied approaches to the Directive have been taken in different Member States. Website operators should also remember that the Regulations offer no protection from injunctions.

The Regulations apply to ‘information society services’, defined (with reference to the Directive) as services ‘normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of the service’. It is worth noting that the requirement for an information society service to be ‘normally provided for remuneration’ is interpreted widely and includes services not directly remunerated by those who receive them, for instance where remuneration is derived from advertising.

Regulation 19, entitled ‘Hosting’, is directed specifically at information society services which facilitate ‘the storage of information provided by a recipient of the service’. This should cover website operators who store uploaded content from their users.

Regulation 19 provides for such hosts to be protected from criminal and pecuniary liability where they do ‘not have actual knowledge of the unlawful activity or information’, and are ‘not aware of facts or circumstances from which it would have been apparent that the activity or information was unlawful’, and where they act ‘expeditiously to remove or disable access to the information’ upon obtaining such knowledge or awareness. Regulation 22 gives guidance on when the host is considered to have actual knowledge.

Even website operators who choose to moderate user generated content may take some comfort from the wording of the Regulations, which offers protection where hosts do not have knowledge of the unlawful activity or information. This would seem to provide for the situation where information is uploaded relating to proceedings of which the host is unaware. The publication of information on its own is not an offence; it only becomes so where there is a risk of interference in the administration of justice. A host cannot be aware of the unlawful nature of information it publishes if it is unaware of the proceedings which may be at risk. Unlike the innocent publication defence under the Contempt of Court Act 1981, there is no express requirement to take reasonable care. The defence under the Regulations seems therefore to be wider than the innocent publication defence under the Act.

Website operators should be further reassured by the fact that, since contempt under the Contempt of Court Act 1981 is a criminal offence, under Regulation 21, the prosecution need to prove beyond reasonable doubt that the defences in the Regulations do not apply.

However, website operators should take particular care that they do not lose the protection of the Regulations by failing to speedily remove unlawful information once notified. And of course the originator of the comment is still liable.

Overall protection under the Regulations for website operators without actual or implied knowledge of the unlawful activity does not fit easily with the strict liability provisions contained in the Contempt of Court Act 1981.

Aspirins for Contempt Headaches

Nevertheless, website operators may find solace in the fact that, even if content they publish on the face of it constitutes an offence under the Contempt of Court Act 1981, it does not necessarily follow that a prosecution is inevitable. When considering whether reform was needed in this area, the Law Commission acknowledged that the Attorney-General has ultimate control over prosecutions for contempt. It was recognised that jurors could be given an appropriate direction to decide the case only on the evidence before them, and not to carry out their own research. This is further supported by the previous Attorney-General, Lord Goldsmith, who last year suggested that the time had come to undertake research in this jurisdiction on the impact of pre-trial reporting on jurors. It seems inevitable that jurors will be able to track down press and Internet coverage but it does not follow that the average juror is vulnerable to influence.

In terms of managing the risk, website operators might consider whether it is feasible to pre-moderate content. The disadvantage of this approach is that the website operator may lose the protection of the Regulations, since the courts might infer a presumption of ‘actual knowledge’. In many cases, pre-moderation is impractical and the cost may be prohibitive.

Website operators may wish to take more direct measures to minimise the risk by, for example, following the approach of Current TV, which includes on its website a training section providing information for its users about legalities. And finally, website operators must ensure that they have a clear and efficient notice and take-down procedure and carefully drafted terms of use, with the right to remove content and block access.

Emma Lenthall is a partner and Rebecca Harman-Wilson an associate in Reed Smith’s Contentious IP Media Advertising & Technology Group.