Contempt of court

1. General

 

4.1       What is contempt of court?

Contempt of court is a legal concept designed to protect the administration of justice in any country from being subjected to serious unjustified attacks.  It allows judges to punish anyone who, through their speech or acts, bring the judiciary into disrepute or threaten public confidence in the administration of justice.

 

4.2       What is the legal basis for contempt of court?

Contempt of court relies on the widespread acceptance, in free societies, of the principle that the courts and other tribunals should be free from any undue external influence in the discharge of their duties.  The law on contempt, therefore, attempts to strike a balance between freedom of expression and the public’s right to know about the functioning of the courts, on the one hand, and the unhindered administration of justice, on the other.

The law of contempt also attempts to strike a balance between free speech and the right of everyone to a fair trial before an independent and impartial tribunal.

Most national constitutions make provision for restrictions to be imposed on freedom of expression on the grounds of contempt of court.

 

4.3       How does contempt of court affect media practitioners?

Contempt of court affects media practitioners in three principal ways.  Firstly, it discourages journalists from unduly influencing the result of pending cases (often referred to as ‘trial by media’).  Secondly, it acts as a deterrent against scurrilous media attacks on judges. Thirdly, it prevents – or punishes – disobedience by journalists of court orders.

 

4.4       What specific risks should media practitioners be aware of in this area?

The most common risks are:

-     anticipating the course of a trial: while it is entirely appropriate for a journalist to report or comment on a pending case in general terms, any attempt to predict the outcome of a trial or offer odds on particular outcomes would amount to contempt;

-     publishing details of a defendant’s previous convictions: generally speaking, any person accused of an offence is expected to be tried for his conduct in relation to that offence alone; so the publication of information about his previous convictions would be seen to be prejudicial to his right to a fair trial and would amount to contempt;

-     publishing photographs of accused persons: where identification of any defendant is in issue in a case, the publication of his photograph may lead eye-witnesses to identify him rather than the person they saw at the scene of the crime, and thus result in a miscarriage of justice;

-     deterring or threatening potential witnesses: where a media report seeks to deter or threaten a potential witness in a case, it would be seen as a serious interference with the administration of justice and would constitute contempt;

-     revealing deliberations in the jury room: in countries where jury trials occur, any attempt by the media to interview jurors or to publish details of their discussions in the jury room will be deemed to be contempt as the law requires deliberations of the jury to be kept secret at all times;

-     criticising the decision to prosecute: where a media report attacks a decision by the authorities to prosecute someone, it may amount to contempt because of the impact that the attack may have on witnesses for the prosecution in terms either of their willingness to testify or of the content of their testimony;

-     publishing scurrilous attacks on judges and courts: although the media are allowed to criticise judges and their work, any attack which goes beyond the bounds of honest and temperate criticism may be deemed to constitute contempt on the grounds that such attacks could result in the public’s confidence in the administration of justice being shaken;

-    disobeying a court order: where the media disobeys a court order, e.g. to postpone the reporting of a trial, it runs the risk of contempt, particularly if the disobedience is wilful or reckless.

 

4.5       Are there any standards set for the exercise of the contempt power?

Generally speaking, the power of contempt should be exercised sparingly by the courts.  Many decided cases have laid down that judges should only use this power as a measure of last resort.  In particular, they should not penalise criticism of the judiciary, however strongly such criticism may be expressed, unless it ascribes improper motives to a judge or a court.  The following observations of Lord Atkin, one of England’s most famous judges, give an indication of the approach that is seen as desirable in this area:

The path of criticism is a public way.  The wrong-headed are permitted to err therein.  Provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right to criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.  Justice is not a cloistered virtue.  She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.[1]

The power of contempt has not been used against the media in several countries, including the United States, Canada and Australia for several years now.  It has, however, been used liberally in some Asian countries.  There are a number of examples, including from Asia, where journalists have faced heavy fines, and even imprisonment, for publishing matter critical of individual judges.  In 1999, for instance, a court in Malaysia sentenced Murray Heibert, a Canadian journalist who was employed by the Far Eastern Economic Review, to six weeks in jail after he had written a story which reflected public surprise at the speed with which a defamation case filed by the wife of a sitting Court of Appeal judge had been taken up for hearing.  Heibert contrasted the case with the generally slow pace of litigation in Malaysia, but his report was deemed to scandalise the Malaysian judiciary.  In the event, he was released after spending four weeks of his prison term.

 

4.6              When would media criticism of a judge become unacceptable?

It is difficult to lay down a precise dividing line between acceptable and unacceptable criticism given the wide variation in standards between countries (and sometimes within countries).  However, as a general rule, it can be said that where the criticism is so sustained, scurrilous, intemperate, reckless and made in bad faith that it challenges the authority of the court, it would be seen as unacceptable.  An example of this kind of criticism is provided by a case from Hong Kong where the island’s largest-selling tabloid newspaper, the Oriental Daily News, engaged in a long-running campaign of abuse against the local judiciary, calling some judges “white-skinned pigs” and “yellow coloured dogs” and “judicial scumbags”.  The newspaper also, for good measure, deployed a team of its reporters to follow an appellate judge round the clock for three days, ostensibly to educate him about the ways of the ‘paparazzi’.  Such conduct was clearly held to constitute contempt of court: the newspaper was fined HK$5 million and its editor was sentenced to four months in jail.[2]

By contrast, when the Daily Mirror newspaper in London published a banner headline ‘YOU FOOLS!’ and the inverted photographs of three Law Lords who had delivered a controversial decision in 1987, the courts took no action against the newspaper, even though many people were of the opinion that the item in question was in poor taste and deeply offensive.

 

4.7       What about personal attacks on judges?

If a newspaper or broadcasting outfit made a personal attack on a judge, i.e. an attack which did not relate to his office as a judge, it would not constitute contempt of court. This is because the purpose of the law of contempt is not to protect the reputation or honour of the judge, but to shield the administration of justice from unjustified attacks.

A judge may, however, be able to successfully sue for defamation in relation to personal attacks which damage his reputation.

 

4.7              What is meant by ‘sub judice’?

In essence, the term ‘sub judice’ refers to a pending case.  It signals the need for caution in commenting on such a case for fear that any improper comment may prejudice the upcoming trial of the case. 

But the parameters of the ‘sub judice’ rule are sometimes inadequately understood by media practitioners who assume that, once a case has been filed, no comment on it is permissible.  This is incorrect, because no legal system imposes a blanket ban on reporting or commenting on pending cases.  Generally speaking, all that is prohibited is prejudging the outcome of a case or discussing its merits in such detail as to influence the verdict of the jury (or, to a lesser extent, a judge) hearing the case.

 

4.9       For how long would the ‘sub judice’ rule apply?

Generally speaking, from the time the case begins till the time it is finally disposed of.  In short, when proceedings are ‘active’.  Usually, proceedings will be deemed to become active in criminal cases from the time a person is arrested, or a warrant or summons for his arrest is issued, or he is charged orally.  They will cease to be active when the person is either released unconditionally or not arrested within 12 months from the date of the issue of a warrant, or where the case is discontinued by the prosecution, or a trial is held and duly concluded with a verdict of conviction or acquittal.

 

4.10     Can a journalist be liable for contempt for reporting a case which is heard in public?

Generally speaking, no. But exceptionally there may be situations where the presiding judge has imposed reporting restrictions.  The judge may, for example, order that all reports of the proceedings must be postponed until the end of the trial or until such other date as may be specified (this may be to avoid prejudice to another trial connected with the case which may follow shortly).  If any such order is passed, the media must be careful not to breach it.  It is therefore a good idea for journalists to check whether there are reporting restrictions before publishing anything about a case.

 

4.11     Where no reporting restrictions are imposed, how safe is it for the media to comment on a pending case?

The rules vary between countries, but generally speaking the media should avoid any comment that may pose a ‘substantial risk of serious prejudice’ to the trial that is either ongoing or may follow.  What is a ‘substantial risk’ and what is ‘serious prejudice’ is ultimately for the court to decide, but there is guidance available from decided cases, and journalists would do well to familiarise themselves with such guidance.

For example, in 2004 the Daily Star newspaper in England published an article which revealed the identities of two well-known footballers who were being questioned by police following a complaint of rape. The victim of the rape did not herself know that her alleged attackers were prominent footballers, and the identities of the attackers were at issue in the case.  In the circumstances, the article in question was seen as posing a substantial risk of serious prejudice to any trial that may have followed the police investigations, and the newspaper was therefore held to be in contempt and fined £60,000.

On the other hand, if a newspaper article which commented on a pending or likely trial was published several weeks or months before the commencement of the trial, it may not be held guilty of contempt because it is likely that the content of the article may be forgotten (by the jury or judge) before the time of the trial.  This is known as the ‘fade factor’ and it also applies to articles that are likely to be read largely by people living some distance away from the venue of the trial.

Also, sometimes the courts would consciously disregard media comment about a pending case (even if it had the potential to interfere with a trial) where the circumstances are such that a higher than usual degree of media interest is unavoidable.  This happened in a case in 1996 when, following a series of horrific murders in a town in England, one of the persons convicted for the murders, Rosemary West, failed to have her conviction set aside by arguing that adverse press coverage had prejudiced her right to a fair trial.  In such cases, all that can reasonably be done is for the jury (where there is one) to be directed by the presiding judge to ignore any media comment they may have seen or read.  This approach was explained by a senior judge as follows:

In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the jury with the will and ability to abide by the judge’s direction to decide the case only on the evidence before them.  The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and that the nature of the trial is to focus the jury’s minds on the evidence put before them rather than on matters outside the courtroom.

 

4.12     Are there any options available to the media when a judge bans reporting of a case?

Yes.  The media can, individually or collectively, first ask the judge to reconsider the ban.  This can be done either through a request via the court clerk or, more formally, through an application presented by a lawyer on behalf of the media.  In some countries, there are formal processes for pleas from the media in such circumstances.  Another possibility is for the media to appeal to a higher court. 

Most liberal legal systems place great value in the courts being open to public scrutiny, so bans on reporting proceedings are the exception rather than the rule.  As the Supreme Court of Canada noted in one famous judgment:

Public access will be barred only when the appropriate court … concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.[3]

But the media should remember that, where a reporting ban is in place, it should be obeyed until it is set aside either by the same court or a higher court.  Failure to do so would result in the media being charged with contempt of court.

 

4.13          What about general reporting restrictions?

In most countries, the law imposes restrictions on the reporting of certain details on grounds of public policy.  For example, it is felt that certain vulnerable groups, such as children, rape victims, victims of blackmail, etc. involved in legal proceedings, should be protected from being identified in the media.  If, in those circumstances, a newspaper or broadcaster did publish details of a person from a protected group, it would face a charge of contempt.

Generally speaking, it is not advisable for the media to name any child or young person[4] involved in legal proceedings, especially in criminal cases, or to publish information such as their address, school or place of work which may identify them.  In certain types of cases, e.g. incest, it is also necessary for the media to avoid naming the perpetrator of the offence because of the risk of indirect identification.

Likewise, the media should remember that, in most countries, rape victims – and victims of other sexual offences – are given lifelong anonymity, sometimes from the stage at which a complaint is made.  This means that nothing should be published which will reveal their identity.  The law does often allow for such a person to voluntarily give up his or her right to anonymity, but there are usually strict conditions attached to the waiver of anonymity.[5]  Also, the law may allow for a complainant of rape or other sexual offence to be identified if, after her alleged attacker is acquitted, proceedings are brought against her for perjury or other similar offences.

It is extremely important in such cases that the media do not publish photographs of any person falling within a protected group.

Restrictions are also usually imposed on the reporting of details of an intimate nature in cases involving sexual offences or matrimonial disputes.[6]  Where these exist, the media should ensure that their reports are free of such details.

 

4.14          What is ‘jigsaw’ identification, and how should the media deal with it?

‘Jigsaw’ identification involves a situation where one newspaper or broadcaster reveals a piece of information about a person whose identity requires to be protected, e.g. a child involved in a criminal case, and another newspaper or broadcaster reveals a different detail about the same person.  Although by itself each of those descriptions is lawful, the reports, when pieced together, may end up breaching the law by allowing an astute reader, listener or viewer to work out the identity of the child.

The only reasonable way of avoiding this problem is for media organisations to agree on a co-ordinated policy under which all media outlets only publish certain permitted details.

 

4.15     How safe is it for the media to report ‘confessions’ made by accused persons outside a courtroom?

Quite unsafe.  This is because, not only are such ‘confessions’ far from conclusive in law, but it is always possible for the accused person to deny any guilt when brought before a court and to raise all manner of legal defences.  This happened in a 1997 case when two British newspapers reported that a domestic servant had been caught on film ‘red-handed’ stealing from a 82-year-old widow.  The servant pleaded ‘not guilty’ when asked by the court and opted for a jury trial. The newspaper would have been held liable for contempt under those circumstances but managed to escape liability because the trial took place several months after the article had been published.

 

4.16     How safe is it for the media to report appeals issued by the police about people who are suspected of being involved in a crime?

Fairly safe, as long as the report limits itself to the information supplied by the police.  In theory, there is a risk of contempt and a further risk that the named person/s may sue for defamation, but the media are usually protected from such suits as they are acting under advice from a legal authority.

 

4.17     What about notices offering a reward for evidence?

These are potentially risky because they may interfere with the administration of justice.  Where, for example, a newspaper report alleging fraud by a businessman had resulted in a libel case being launched by the businessman, and while the case was pending, the newspaper offered a substantial reward to anyone who came forward and successfully testified in support of the allegation, the court may regard the offer of the reward to be a contempt.

 

4.18          Can the media safely report all proceedings held in open court?

Generally speaking, yes; however, there are exceptions.  Occasionally, the court may order that certain parts of the trial should not be reported, e.g. where evidence of an indecent or highly sensitive nature is being given.  In such circumstances, it is always advisable for journalists to seek clarifications from the court.

Another situation which the media should be aware of is what is called a ‘trial within a trial’.  This only happens when a jury is involved.  The court may decide to send away the jury temporarily and hear legal arguments about, say, the admissibility of some of the evidence that is likely to be tendered.  In such situations, the media should not report any of the matters that were discussed while the jury were away.

 

4.19     Can the media freely name parties to a case that is being heard in public?

Generally speaking, yes.  But occasionally a court may order that the name or other details (e.g. occupation, address) of a party or a witness be withheld from the public.  In such situations, the media should not use this information and should substitute pseudonyms.  Normally such orders are made to prevent victims of blackmail or those involved in sensitive national security operations being exposed to glare of publicity.

 

4.20     How important is it that media reports of legal proceedings are accurate?

Very important.  If a report distorts or misrepresents the facts of a case being heard in a court, and that has the effect of prejudicing the trial, the journalist and others responsible for the report can be punished for contempt.

 

4.21          Can the media expect support from the courts in gaining information about pending and upcoming cases?

As a rule, yes, though practice tends to vary between countries.  In most democracies, there are guidelines formulated by the courts themselves for the dissemination of information, documents, etc. to the media.  These guidelines require the information to be made available conveniently and without discrimination to all media, although there may be a system of accreditation and a fee structure for the information.

Exceptionally, a court may allow proceedings to be filmed and for a feed from the filming to be made available to broadcasters, subject to certain conditions.

 

4.22     How safe is it for the media to campaign for the acquittal of an accused person?

Very unsafe.  Just as launching a campaign aimed at securing the conviction of someone suspected of a crime risks a contempt charge, so also a campaign which seeks to show that an accused person is not guilty.  This will be seen as attempting to interfere with the course of justice.

 

4.22          In what other ways can a journalist fall foul of the law of contempt?

There is a species of contempt called ‘contempt in the face of the court’ which may, on rare occasions, affect journalists.  If a journalist covering a trial engages in disruptive behaviour or is disrespectful towards the court, he can be punished for such conduct.  Such occurrences are, however, rare.

Also, journalists should be aware that using cameras, tape-recorders or other recording devices are usually not allowed in courts.[7]  If therefore any such device is used, a journalist can be punished for contempt.

 

4.24     What about frustrating court orders?

The media’s actions may result in the frustration of a court order, and where this is deliberate, it may give rise to a charge of contempt.  For example, in a famous case involving the book Spycatcher which detailed sensitive intelligence operations by a former member of the British security services, the UK Government had secured injunctions against two newspapers, the Guardian and Observer, restraining publication of extracts from the banned book.  Two other newspapers, the Independent and Sunday Times, despite knowing about the injunctions, published material which was covered by them.  It was held that, although the injunctions had not been directed specifically at them, the Independent and Sunday Times were guilty of contempt because their actions had the effect of frustrating the court orders.

Journalists should therefore be careful not to do anything that might amount to knowingly frustrating a court order.

 

4.25     Can a person be prevented from taking notes in open court?

No.  As long as the proceedings are open to the public and there is are no specific legal restrictions imposed by the court on any recognised grounds, everyone – whether an accredited journalist or not – is entitled to attend and take notes of proceedings.  They should, however, do so decorously and without causing any disturbance to the court.

The Grand Bench of the Supreme Court of Japan, in criticising a trial judge for refusing to allow a non-journalist to take notes in court (the policy being to allow only members of the "reporters' club" to take notes), observed that Article 21 of Japan's Constitution was consistent with Article 19 of the International Covenant:

The freedom to come into contact with and absorb this information, etc., is a derivative principle that naturally follows from the meaning and purpose of [Article 21] ... . The provisions of Article 19(2) of the International Covenant on Civil and Political Rights ... reflect nothing other than the same intent.[8]

The Court concluded that the judicial policy of prohibiting non-journalists from taking notes during a trial was "an exercise of the courtroom policing power lacking a rational basis."

 

4.26     Can the media publish a graphic representation of a court?

Yes, as long as it is not a photograph taken in court.  The common practice in many countries is for artists employed by the media to draw sketches of courtroom scenes which are then published.  It is important to note that these artists are usually forbidden from making sketches in court – they can only make sketches outside the court from memory.  It is also important to remember that where sketches are made, they do not identify any members of jury or any witness whose identity is ordered to be kept secret.

 

4.27     Can a journalist disobey a court order which appears to be clearly erroneous?

No.  Even if it is clear that a court has passed an order that is wrong, no one is entitled to disobey or disregard it.  If they do, they are likely to be in contempt.  The proper course of action in such circumstances is for the order to be appealed in a higher court.[9]

 

Confidentiality of sources

 

4.28     Can a journalist insist on keeping his sources secret?

Generally speaking, no.  This is clearly a very difficult and controversial area.  Ethically, journalists are usually required to honour any promise they make to their sources, including a promise not to reveal their identities.  However, the law in most countries allow courts to compel journalists to furnish such information on pain of a penalty.  This has led to frequent clashes between journalistic ethics and the law.

One famous case, which occurred in England in the 1980s, is illustrative of the problem.  A journalist, William Goodwin, who was working for The Engineer magazine, was approached by a source who told him about the financial woes of a certain company on conditions of anonymity.  When Goodwin drafted an article based on this information and attempted to check the information with the company, it obtained a court injunction and sought details of Goodwin’s source.  He refused and was threatened with imprisonment and a fine of £5,000.  His appeals to the higher courts of England were turned down, but the European Court of Human Rights came to his rescue and ruled that whatever benefits may have accrued to the company by the disclosure of the source (e.g. exposing a disloyal employee or collaborator) were outweighed by the vital public interest in the protection of the source.  The European Court underlined the importance of this issue thus:

Protection of journalistic sources is one of the basic conditions of press freedom … Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest.  As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.  Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure can not be compatible with Article 10 of the Convention [which guarantees freedom of expression] unless it is justified by an overriding requirement in the public interest.[10]

In some countries, the law provides at least partial protection to journalists by limiting the circumstances under which a court may order disclosure of sources.  The UK’s Contempt of Court Act 1981, for instance, forbids any court from requiring anyone to disclose their source “unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”[11]

Also, it is the practice in many countries that no journalist is required to reveal his source at an interlocutory (i.e. pre-trial) stage of legal proceedings, e.g. in a defamation suit.

 

4.29     What are the best practice guidelines in this area?

A number of inter-governmental organisations and non-governmental organisations have, over the years, put forward principles that should be followed when dealing with the issue of disclosure of a journalist’s confidential sources.[12]  Those principles have been summarised as follows:

·        A journalist should only be ordered to disclose the identity of a source if there is an overriding requirement in the public interest, and the circumstances are of a vital nature … [T]his could be the case only if disclosure was necessary to protect human life, to prevent major crime or for the defence of a person accused of having committed a major crime.

·        The interest in disclosure should always be balanced against the harm of ordering disclosure to freedom of expression.

·        Disclosure should only be ordered at the request of an individual or body with a direct, legitimate interest, and who has demonstrably exhausted all reasonable alternative measures to protect that interest.

·        The power to order disclosure of a source’s identity should be exercised exclusively by courts of law.

·        Courts should never order disclosure of a source’s identity in the context of a defamation case.

·        The extent of a disclosure should be limited as far as possible, for example just being provided to the persons seeking disclosure instead of general public.

·        Any sanctions against a journalist who refuses to disclose the identity of a source should only be applied by an impartial court after a fair trial, and should be subject to appeal to a higher court.[13]

 

4.30     Are there any special rules that apply to journalistic material?

Many countries have laws which confer special protection on information and documents that are used for journalistic purposes.  This is to ensure that such material is not subject to the normal search and seize procedures of the law-enforcement authorities.  Among the reasons advanced for the conferment of special protection is that the media should be shielded from the intimidatory effects of police and military raids, and that the authorities should not be able to use their normal search and seize powers to circumvent laws on the confidentiality of a journalist’s sources.

Typically, a law on the sanctity of journalistic material would require law-enforcement authorities to first seek the permission of a higher authority – normally a judge – before attempting to search for or seize such material.  Such laws would also require the higher authorities to carefully balance the need for the search with the need to prevent any danger to the free exercise of a journalist’s duties.

However, such protections are not universal, and journalistic material is often treated in many legal systems as being on par with other material for the purposes of searches and seizures.

 

 

Defences

 

4.31     What are the defences available to a person charged with contempt?

There are very few defences open to those charged with contempt.  Unlike defamation, truth or justification is, generally speaking, not a defence, though some countries have begun relaxing the law in this area (see discussion below).  The most common argument put forward by alleged contemnors is that the matter complained of was unlikely to interfere with, or prejudice, the administration of justice.  Strong and cogent evidence will have to be provided to back up that argument. There are a couple of other possible defences that can be advanced, and these are discussed below.

 

4.32     To what extent can a journalist argue that any report for which he is charged with contempt is true in substance and in fact?

Only to a limited extent.  As noted above, truth is, generally speaking, not recognised as a defence, but courts in some countries do accept it in certain circumstances.  In India, for example, the Contempt of Courts Act 1971 was amended in 2006 to allow alleged contemnors to prove the truth of their allegations if it is satisfied that to do so was in the public interest and that the request to invoke this defence was made in good faith.[14]

Truth will usually only succeed if the person responsible for publication had made a serious attempt to bring the subject matter of his story, e.g. corruption in the judiciary, to the attention of relevant official authorities or agencies before publication, but without success.  If, therefore, a complaint to the chief justice or an anti-corruption body about bribery allegations against a judge had been ignored or brushed aside, a newspaper or TV station might be justified to publicise the case, despite its implications under contempt law.

 

4.33     Can a media person use ‘innocent publication’ as a defence to a contempt charge?

Yes, in certain limited circumstances.  For example, a journalist could argue that he did not know, when he published material concerning someone involved in legal proceedings, that the proceedings were active.  In practice this would mean, for instance, that, although someone suspected of a crime had been arrested, no publicity was given by the police of the arrest, and furthermore that the police had not alerted the journalist about the arrest when he had been talking to them about the crime.

Likewise, where a journalist publishes something that had been the subject of reporting restrictions, he may argue that he did not know, and could not reasonably be expected to know, about the existence of the restrictions.  For this defence to succeed, however, it is important in both cases for the journalist to show that he took all reasonable care and all reasonable steps to find out if the proceedings in question were active or if reporting restrictions had been imposed.

 

4.34     To what extent can a person use the defence of ‘innocent distribution’ as a defence to a contempt charge?

To a limited extent. This defence usually applies to distributors of newspapers and other publications (though in exceptional circumstances it may also apply to broadcasting organisations).  Here, the person charged with contempt shows that, despite taking all reasonable care to ensure that the publication being distributed by him did not infringe the law of contempt, he did not know, nor could he reasonably have known, about the existence of contemptuous matter in the publication.

The courts will look at a number of factors while considering this defence, including, for example, the amount of interest that the case in question has aroused among the public, the nature of the article or report, the extent of its circulation, etc.

 

4.35     To what extent can a reporter seek to escape liability for contempt if he is not responsible for publication?

This will depend very much on the precise details of each case, but, generally speaking, it is arguable that a court will treat reporters who do not have responsibility for publication leniently.  If, therefore, a reporter on a crime beat sent information about an offence that had been committed on his ‘patch’ but did not write the story himself, and it subsequently transpired that the story which was published – based on the reporter’s information – amounted to a contempt of court, the reporter would very likely be able to escape liability on the grounds that the information supplied by him was not ‘published’ in the sense of being made available to the public at large or a section of it, but had only been supplied to a few colleagues in the media organisation for which he worked.[15]

 

4.36     Are editors always liable for contempts committed by their reporters or other journalists?

Generally speaking, yes.  This is based on the principle of ‘vicarious’ liability discussed in the previous chapter.[16] 

 

4.37     What about the liability of broadcasters for contempts contained in a programme made by independent contractors?

Generally speaking, the broadcaster responsible for transmitting the programme would be held liable.

 

4.38     Can the media use the defence of ‘discussion of public affairs’ in contempt cases?

Yes, in some countries.  The essence of this defence is that, although the report in question may have a tendency to interfere with the course of justice, it was published as, or as part of, a discussion in good faith of public affairs.  This defence succeeded in a case which arose in England in 1981 when the Daily Mail newspaper published an article by the writer Malcolm Muggeridge strongly criticising the medical profession for readily carrying out abortions at a time when a doctor had been facing trial for the murder of a Down’s Syndrome baby.  The article had been published on the eve of a parliamentary by-election in which one of the candidates had been standing on a pro-life platform.  In the circumstances, the court held that it could be seen as being part of a discussion of public affairs and therefore not contemptuous.

In all the above situations, the person facing a contempt charge must show that he acted in good faith at all times.

 

4.39     Is there any other defence available to the media?

Very rarely, the media may be able to argue that, although it has committed a technical contempt, it should not be held liable for commonsense reasons.  Such a situation arose in an English case decided in 1979 which involved criminal proceedings for breach of official secrets.  Although the case was heard in open court, one of the witnesses was given anonymity on national security grounds and referred to simply as Colonel ‘B’.  In the course of his testimony, Colonel ‘B’ proffered enough information about himself to enable two magazines to carry out research in available public sources and identify the colonial by his real name.  They published the name and were charged with contempt.  In their defence, they argued that there could not be any question of contempt because the colonel himself had allowed his identity to be revealed through testimony given in open court.  This defence was accepted and the magazines were acquitted.

 

Punishment

 

4.40     What are the common types of punishment meted out for contempt of court?

In most countries, contempt is punishable with either a monetary fine or a term of imprisonment.

 

4.41     What are the guidelines for the punishment of contempt?

As noted above, it is accepted in most countries that the contempt power should be used very sparingly by the courts.  Even where a contempt has been established, the preferred course of action is for judges to show leniency to the contemnor.  This is done, firstly, by giving the contemnor an opportunity to ‘purge’ his contempt by tendering an apology to the court, and, secondly, by avoiding custodial sentences unless the behaviour of the contemnor has been particularly egregious.

Such guidance can be found in many cases decided over the years.  It has also occasionally been enshrined in statutes, such as the Indian law on contempt which says expressly that:

no court shall impose a sentence … for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.[17]

 

 



[1]               Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322 at 335.

[2]               Wong Yeung Ng v. Secretary for Justice, judgment dated 9 Feb 1998 (CFA), accessible at http://law.hku.hk/clsourcebook/conlawcase/wongyeungngCA.htm.

[3]              Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, paras. 3-4.

[4]               The definition of a ‘young person’ may differ from country to country, with the qualifying age usually ranging between 10 and 18 years.

[5]               For example, the law would require the media to obtain consent in writing, and without any undue pressure or duress being applied on the victim.

[6]               A typical law under this head would say that “it is unlawful to print or publish, or cause or procure to be printed or published – in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals” (Judicial Proceedings (Regulation of Reports) Act 1926, s. 1(1)(a), UK).

[7]               In most countries, this rule is absolute.  There are, however, some countries where a tape-recorder may be used, with the prior permission of the judge/s, purely as an aide-memoire for the journalist.  Even where permission is granted, at no time should the recording ever be published.

[8]               Kaneko v. Japan, 23 Keishu 1490, SC (Grand Bench), 26 Nov. 1969

[9]               In some cases, it may be possible for, say, a journalist to point out the error to the judge or magistrate who made the order, who may then amend or vary it.

[10]                 Goodwin v. UK (1996) 22 EHRR 123, para. 39.

[11]             S 10, Contempt of Court Act 1981.

[12]             Among the organisations involved are: the Inter-American Commission on Human Rights, the African Commission of Human and Peoples Rights, the Council of Europe, the European Parliament, and the Organisation for Security and Co-operation in Europe.

[13]             Central Asian Pocketbook on Freedom of Expression (London: Article XIX, 2006), pp. 85-86.

[14]                 Contempt of Courts (Amendment) Act 2006, s. 2 (amending s. 13 of the parent Act).

[15]             See, e.g. R. v. Griffiths, ex p. Attorney-General [1957] 2 QB 192

[16]             See, …..

[17]             S. 13(a) Contempt of Courts Act 1971, as amended in 2006.