Has the internet made the law of contempt unworkable?
This is discussed in an interesting article published in today's Times that highlights the difficulty of policing contempt laws in an online environment.
The law of contempt of court is there to protect the administration of justice in the broader sense and individual proceedings and those involved in those proceedings at a specific level. The 1981 Contempt of Court Act sets out statutory contempt law, whereby the publication of material in relation to 'active' proceedings (for criminal purposes this kicks in when someone is arrested) that creates a substantial risk of prejudice to the proceedings in question or those involved in such proceedings will amount to contempt of court. Under the Act this applies irrespective of intent. This is known as strict liability contempt. In addition to statutory contempt under the 1981 Contempt of Court Act there is common law contempt - this is wider in scope and relates to the publication of material that could substantially prejudice or undermine proceedings but such proceedings do not need to be 'active'. In other words if one publishes something that could undermine a future case or those involved in it that could amount to common law contempt. The key distinction between this and statutory contempt is that common law contempt requires proof of intent.
Mediabeak would argue that the key challenge for contempt law does not lie in the material or its availability online - it is accepted that policing online material across jurisdictions is a near impossible task - but lies with our faith in the jury system. Contempt law is there to protect the jury in particular and others involved in proceedings beyond that from bias. If we can't shield juries from the online environment when they sit on a case, can we trust them to be objective? We have to accept the fact that today's juries are news savvy and have access to the internet. Its unrealistic to assume they live or can for the purposes of a trial operate in a bubble. So the real question becomes one of whether the law can adapt to juries' increased access to information and still engage when information turns to bias, or whether, if we can't trust juries with the additional information they may be able to obtain, they are still the best method for trying cases. If we can't trust juries we should change the system.
More analysis on the issue of contempt:
Contempt of Court in the dock