The leaked DNA test on 13-year-old alleged dad Alfie Patten has revealed a big problem with court-ordered reporting restrictions in the internet age. (NB This is a cut down version of a much longer original post on blogging and reporting restrictions that was featured on the Guardian).
Court orders forbidding publication of certain facts apply only to people or companies who have been sent them. But this means there is nothing to stop bloggers publishing material that mainstream news organisations would risk fines and prison for publishing.
Even if a blogger knows that there is an order, and so could be considered bound by it, an absurd catch 22 means they can’t found out the details of the order – and so they risk contempt of court and prison.
Despite the obvious problem the Ministry of Justice have told me they have no plans to address the issue.
Who is covered – and why bloggers aren’t
Court orders set out who is covered: “Who is bound: This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.”
You are only bound by it if you know what it says. There is a standard procedure for alerting most news organisations of a court order. But the orders aren’t automatically sent to anyone else. And so no one else is bound by them.
In particular, a blogger who picked up the initial Mirror story with the DNA test results (now the subject of reporting restrictions) and repeated it would not be banned from doing so, unless they had seen the court order (which they generally wouldn’t have done).
What is banned – and why you can’t find out
This is what the order bans: “Publishing restrictions: This Order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of [the details of the reporting restrictions are then given in paragraph 3].”
I can’t tell you the details as the Order also says that “no publication of the text or a summary of this Order except for service of the Order … shall include any of the matters referred to in paragraph 3 [ie the specific details of what you're not allowed to publish]“.
And this is the other big part of the problem – there is no way of an ordinary blogger finding out the details of the order, as the order bans publication of itself. Even if you know there is a court order, you can’t find out what you’re not allowed to say. (I only know as I managed to get a copy of it from a national newspaper – something no ordinary blogger could do.)
What this means for bloggers
So there are two problems:
* Bloggers aren’t bound by the order unless they know it exists.
* If they know it exists, they have no way to find exactly what it says – so they can’t tell what they’re allowed to say and what they aren’t.
I asked Struan Robertson, Legal Director at Pinsent Masons and editor of out-law.com, what all this meant for bloggers.
His reply is an alarming one for people who want to write about areas covered by reporting restrictions: “Bloggers can be caught by the law of contempt as being publishers – it doesn’t just apply to mainstream newspapers. Therefore, as soon as they become aware of it, they should remove any postings, by themselves or their readers, that breach the terms of the Order – even if they know only the general purpose of the Order and not its exact detail.” (My emphasis.)
Personally, I find this worrying – a system that stops people publishing facts, but makes it impossible to find out what they can and can’t publish, is not a good one.
The Ministry of Justice view
The Ministry of Justice could see the problem when I spoke to them. I asked how bloggers were supposed to find out what they can and can’t say – and they said that, while they were looking into a database of reporting restrictions for journalists, there would not be one for bloggers to consult because of the “real problem” that it would reveal the very facts that were supposed to be being restricted.
The spokesman said: “It is the responsibility of those reporting cases … to ensure that no reporting restrictions apply. The maximum penalty for contempt of court is 2 years.”
But he conceded this left bloggers in a ‘catch 22′ – bound by court orders they have no way of accessing the details of.
Obviously, reporting restrictions are important and should be obeyed. But the current system hasn’t really kept up with technology.
The obvious answer is a database of reporting restrictions – this doesn’t have to give so much detail that it would become virtually an edition of the News of the World (‘you are not allowed to report that X is having an affair with Y’). In this case, it would have just needed to say that you are not allowed to give the results of the DNA test.
There are no plans for such a database – so we’re left in the ridiculous position that bloggers are encouraged to check the reporting restrictions to avoid contempt of court … but are left with no way to do the checks.
And how come Google news is still getting away with it?
None of this explains why Google News is still allowed to show headlines from non-UK news sources that give the results of the DNA test if you do a search on Alfie Patten. (And the longer version of this article has an interview with the blogger who broke that story, Martin Belam).
If the current system hasn’t even realised that Google News exists, what hope is there of it dealing with individual bloggers?