Trial by X Factor: The legal view on Facebook contempt case

The allegations, first made in April 2011, led to what Attorney-General Dominic Grieve referred to as the “collapse” of a major drug Trial at a cost of £6 million. He obtained permission to pursue Fraill for contempt after Sewart had already been convicted but whilst other defendants were still awaiting their verdict. Fraill is also said to have researched details of the defendants via the Internet, despite a direction from the Judge to decide the case solely on the basis of the evidence before the Court.

As a result, one of the Defendants in the original case is challenging his conviction as a result of the online conversation between Fraill and Sewart, alleging “jury misconduct”.

Contempt of Court is a serious offence, and one which is becoming more and more relevant to the online world after recent online media reporting of high-profile trials and the large-scale “civil disobedience” of thousands of Tweeters who revealed the identities of various celebrities (including a very high-profile footballer referred to as “CTB”) who had obtained superinjunctions to protect their privacy by restraining newspaper reports into their private lives.

Contempt has become a very live issue for social media sites and platforms after the recent conviction of the Daily Mail and The Sun for contempt after a photograph of the Defendant in a murder trial at Sheffield Crown Court holding a pistol with his finger on the trigger was posted on their websites on the first day of the prosecution’s case. Even though it was accepted that the posting of the photograph was a mistake, both newspapers were convicted.

Tweeting from Court is, however, now permitted in certain circumstances after a ruling made by the Lord Chief Justice following the bail hearing of Wikileaks founder Julian Assange and provided that the Judge hearing a case is satisfied that it will not interfere with the administration of Justice; it is never usually contempt to produce a fair and accurate contemporaneous report of proceedings in good faith.

Most recently, the Attorney General indicated that anyone using Twitter to breach the terms of a superinjunction could also face contempt proceedings. In an interview with Radio 4 on 7 June, he made it clear that social media users were not exempt from the obligation to comply with Court orders and that, although it is usually up to the Claimant obtaining the original order to initiate action to enforce them, he would take action in his own right if to do so would be in the public interest, proportionate and necessary to uphold the rule of law.

The Contempt of Court Act 1981 contains a “strict liability” offence (which does not require the prosecution to show evidence of intent) offence of communicating a “publication” (i.e. any communication in whatever form) to the general public which creates “a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced”.

The case in question must be “active”, the Defendant would need to know this and be aware of that facts surrounding it at least in general terms even if they weren’t aware of the exact terms of any order which the Court had made as part of the proceedings – they can still breach it. It may be enough to show that they were merely aware that the information which they refer to in the “publication” was protected by a superinjunction for the Prosecution to secure a conviction.

Of course, if any comment on alleged Court proceedings is NOT true, such as the allegation that Jemima Khan had obtained a superinjunction to suppress an extramarital affair, then whoever made the “publication” could also be sued for libel and have to pay substantial damages if the subject of the publication’s reputation was seriously affected.

The Fraill case deals with a very specific offence under Section 8(1) of the 1981 Act which confirms that it is a contempt of court and an offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

The Court has always made it very clear that jury deliberations must remain confidential and it’s hard to see how Fraill can successfully defend this case, even if she tries to rely on an argument based on her right to freedom of expression under Article 11 of the European Convention on Human Rights – that right is restricted by a number of other considerations, including maintaining the authority and impartiality of the Judiciary.

Not only that, but in this case every message which Fraill sent will be able to be printed out and admitted in evidence. Facebook will probably prove to be the one witness which will not crumble under cross-examination. The Government has become increasingly concerned that Jurors are regularly using the internet to research defendants in Trials, and this case will probably lead to very tough new guidelines being issued to try to ensure that the genie is, if not put back in the bottle, at least kept in the Courtroom.

Some reports have even described Jurors using Facebook to set up polls to determine the guilt of defendants. For now at least, this kind of “Trial by X Factor” appears relatively limited, but Jurors will be made aware that this kind of activity is strictly prohibited. Even though the Courts may not be able to stamp it out altogether, in future Jurors may increasingly find the (Face)book being thrown at them. What these cases show is that Social Media is not lawless, and that hiding behind a profile may not be enough to escape liability.

Steve Kuncewicz is an Intellectual Property, Media & Social Media Lawyer. You can read his blog here.