BBC moderation, the Law and "censorship" part 2: Contempt of Court
This is the second post looking at legal issues that affect the way we moderate contributions to the BBC's blogs, messageboards and community websites. Part 1 dealt with defamation, this time I'll consider contempt of court.
Contempt of court law means that we have to avoid publishing comments that "create a substantial risk that the course of public justice will be seriously impeded or prejudiced" in active court proceedings in the UK.
Many people do not realise that criminal proceedings become active as soon as someone has been arrested, so when the news breaks of a high-profile arrest, that's the point at which we have to consider contempt of court when moderating. It's also the point at which everyone wants to comment on the arrest, and often with contributors' emotions running high, many of the comments make it hard for the moderators to strike a balance between allowing fair comment on a case and removing content that could break contempt of court law.
And of course, if a comment assumes the guilt of the suspect, it is potentially libellous as well. How "substantial" the risk a comment to a website can represent is key to a successful prosection of the publisher for contempt. It will depend on several factors including how far off are the court proceedings and how damaging to a fair trial the comment may be.
In any high-profile case journalists always walk a tightrope between trying to satisfy public hunger for information and staying within contempt laws. Newspapers are notorious for testing the limits of contempt of court, and even if comments are intended as a joke, that's no defence, as the BBC has found to its cost.
In printed media, and most radio and television output, it should be easy to make sure that you don't break the law, since it's you who is in charge of what goes on the page or into a broadcast. But when comments appear on a story it becomes far more difficult to limit the risks.
For example, UK contempt law would usually prohibit any reference to the previous conviction(s) of someone facing new court proceedings. This is easy for a TV reporter, they just have to get through a report without accidentally saying "And of course we all remember the defendant from his murders in the Nineties" (though mistakes do happen).
But the current statutory contempt law dates back to 1981, when no-one realised that an internet filled with archived news stories, blog entries, comments and even cached pages would make the exchange of this kind of information easy and immediate. If you aren't aware of contempt of court law it would seem perfectly reasonable when a story breaks to post a link to an archived page and say 'hasn't this bloke done this before?' And under the current laws the BBC moderators would have to have to remove your post.
In my final post, I'll look at reporting restrictions.
Paul Wakely is Content Producer, Future Media & Technology.