http://www.medialawjournal.co.nz/?page_id=2
Media Law Journal
March 9 2008
Website in contempt?
by Steven Price
Today’s Sunday Star-Times has a
story about a website set up by the daughter of a Zimbabwean immigrant accused
of sexually violating killing his niece. The website contains detailed
commentary about the life of the family and the events surrounding the death.
The niece was HIV positive, but the Crown’s case is that this did not explain
her death (and has evidence of the uncle’s semen stains on the niece’s
underwear). The trial is scheduled for next month. The Soliticitor-General
has asked the family to take down the parts of the website alleging his
innocence.
This is a tricky issue. Is the website
creating a real risk of prejudice? Which bits? Does it matter how many people
have seen it - given that the number could rocket at any time? Is a story about
the website itself prejudicial, given how easily people reading it can find the
site with a google search?
The story paraphrases me as saying
that trials can be prejudiced by infomration posted
on websites if jurors viewed the site and its content was wrong. (I also say
that the Solicitor-General needs to work together with the mainstream media to
come up with a protocol to take prejudicial material down while trials are
going on).
That’s accurate, as far as it goes.
But my views were rather more nuanced. For completeness, here’s my email to the
reporter:
Anything that creates a real risk of prejudice to a fair trial can be a
contempt of court. There may be a little more wiggle room when asserting
innocence rather than guilt, but in general the same rules apply.
Much of the material on the website doesn’t create such a risk – their
general experiences as an immigrant family, for example. A lot of it might not
be at issue in the trial. And it seems they’ve made some attempt to pare back
some material that might be prejudicial.
What’s more, some seems to be in response to things the police have said
that they regard as unfairly prejudicial against the family. That doesn’t
necessarily excuse it, but there may well be arguments of prejudice that go
both ways.
Still, the website does explicitly assert the father’s innocence. It
paints a picture supporting that innocence, including statements about his
character and his behaviour at key times. (Incidentally, I have no idea of the
accuracy of what’s written, or whether anything significant has been omitted. I
have no particular reason to doubt the accuracy, but the courts have said that
inaccurate statements carry greater risk of contempt). It seems to put forward
a version of events that will be at issue in the trial. That is usually
regarded as prejudicial.
Is it creating a real risk? Not too many people have seen it so far, but
that hit-count could balloon at any time. The trial is to be held soon, as I
understand it, which makes this sort of comment more dangerous. What’s worse,
there’s evidence that jurors sometimes do internet research on the cases they’re
hearing about, even when warned not to. I’d expect a judge to order it to be
taken down at the very least during the trial, if it was drawn to his or her
attention.