Contempt laws reviewed for internet age

The law is meant to govern mainstream media and people publishing in blogs and tweets

A consultation on the effectiveness of the contempt laws in England and Wales in the age of blogs and Twitter has been launched by the Law Commission.

The current law, dating back to 1981, prevents the publication of material which creates a substantial risk of seriously prejudicing a fair trial.

It applies to blogs and tweets, as well as mainstream media, but many doubt it can keep jurors away from prejudicial material published online.

The consultation runs until February.

A number of recent cases have exposed shortcomings in the law.

In January Theodora Dallas, a juror in an assault trial who researched a defendant's past on the internet and told fellow jury members the suspect had previously been accused of rape, was jailed for six months for contempt of court. But that may just be the tip of an iceberg.

The law prevents jurors from searching for information online relating to the case, and jurors are warned against doing so, but research published in 2010 revealed that 12% of jurors in high-profile cases admitted going to the internet.

The reason that poses a real danger is that the material can be prejudicial and, though it may remain in the mind of the juror, cannot be challenged by the defendant in court.

However, there are many who believe that nothing can now prevent jurors accessing material online.

They feel that the law should recognise the operation of human curiosity, and rely upon strong directions from the judge to the jury to disregard any prejudicial material they may have come across, and decide the case on the evidence presented in court - and that alone.

That is the system that operates in the United States.

The internet has given media organisations and so-called "citizen journalists" the opportunity to publish information and comment to vast audiences instantaneously.

Once information has been released on the web, it is very hard to contain. And unless steps are taken to remove it, it remains easily available to anyone with access to the internet in a way that was not true when such information was only available via newspapers and a handful of broadcasters.

The Commission - the body which keeps the law in England and Wales under review - is asking what safeguards can be put in place to prevent jurors searching for, and being able to find, potentially prejudicial material during the course of a trial, irrespective of when it was published.

It is seeking views on whether:

• jurors should be given more in-depth, specific education about their responsibility not to seek out information on the defendant

• jurors should be subject to a new offence of intentionally seeking information relevant to the case they are trying

• the courts should be given statutory powers to require media organisations and others to take down potentially prejudicial content first published before proceedings became active

Professor David Ormerod, the law commissioner leading the project, said: "The purpose of our consultation is to ask how, in a modern, internet-connected society, the law of contempt can continue to support the principles that criminal cases should be tried only on the evidence heard in court.

"We are seeking ways to protect the administration of justice and the defendant's right to a fair trial while keeping to a minimum interference with the right of media organisations and private individuals to publish."

The consultation runs from Wednesday 28 November 2012 to 28 February 2013.