The legal challenges posed by the proliferation of data in cyberspace are acknowledged in a general sense but the practical problems created by the digital age in terms of administration of justice are met with a legal system struggling to cope. This difficulty is illustrated starkly in the daily administration of justice in our criminal courts where the constitutional right of an accused person to have a fair trial may be compromised by prior internet publications about the accused which tend to reflect negatively on the accused’s character. This is particularly problematic where the accused has been convicted of crimes in the past.
Against that, publishers also enjoy a constitutional right to publish information particularly where it serves a public interest and this typically covers reporting on matters of political, administrative, judicial or general newsworthiness. In this way, news media act as the eyes and ears of society and bring to their attention matters of public interest that members of society would otherwise be oblivious to.
It is no wonder that jury trials have become cauldrons of volatility where there is adverse reportage on the internet about an accused person that will instantaneously be highlighted to the jury upon a mere name search about that person. How could such an accused expect a fair trial in these circumstances? Conversely, how could one expect the entire internet to be cleansed of potentially prejudicial commentary about every accused person. These are very fundamental and difficult issues that face our criminal courts on a regular basis and there is limited guidance in this jurisdiction on how the Courts should address them.
Byrne v. DPP 1
In this case, the accused faced charges in respect of a tiger kidnapping and sought the removal from the internet of all offending material relating to him directly or indirectly. He also sought to have the DPP made responsible for such removal.
Mr. Justice Charleton provided a useful judgment which clearly highlights the dangers and challenges posed by internet publications about an accused and the ability of jurors to link into that information through routine internet searches. He referred to the test established in Rattigan v DPP 2 to determine whether a trial should be prohibited due to adverse publicity. In this regard, he observed;
“Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity, which could not be made fair by appropriate rulings and directions of the trial judge and by other circumstances” (emphasis added)
In his conclusions, he said that the correct solution was to make appropriate judicial directions to the Jury rather than embark up on a crusade against the abyss of internet publications;
“Fundamentally, however, there is no reason to believe that juries cannot be trusted if appropriate directions are given to them, perhaps coupled with an explanation as to why this is necessary. There is every indication that they take their task seriously and see it, correctly, as an important and elevated public function.”
The common law world provides similar protections for accused persons and media organs as exist in Ireland. Therefore, their handling of these issues may be of valuable assistance. The Supreme Court of Victoria has helpfully addressed issues relating to pre-trial publicity in similar circumstances in News Digital Media PTY Ltd and Fairfax Digital Ltd v Antonios Sajih Mokbel and DPP 3.
In this case, shortly before the empanelment of the jury for a murder trial, counsel for the accused, Mr Mokbel brought to the attention of the trial judge that The Age, The Herald Sun and The Australian newspapers were displaying on their websites material relating to Mr Mokbel which was highly prejudicial of him and to his prospect of obtaining a fair trial.
The Court at first instance made an Order directing News Digital Media Pty Ltd and Fairfax Digital Ltd, who own the above mentioned newspapers, to remove from their website and to not publish any articles containing reference to Antonios Mokbel. This order was appealed.
They relied upon a judgment of the Scottish High Court in HM Advocate v. Beggs (No.2) 4 which found that, as the impugned material formed part of the archived material available on the websites, it was less available than current material. The publication, therefore, did not amount to a prima facie contempt because there was no evidence that a potential juror was likely to access the material; there was no substantial risk to the course of justice.
In doing so, the Court clearly recognised a distinction between archived material which must be searched for and contemporaneous publications which are effectively forced on the reader. In its conclusions, the Court set aside the Order requiring the media to cleanse their archives of material relating to the accused.
It is undoubtedly a difficult task to find a solution for tackling adverse publicity on the internet about an accused person who enjoys a right to a fair trial. The international authorities and the limited judicial commentary on this issue in this jurisdiction favour dealing with the matter by appropriate directions to the Jury and avoiding a potentially impossible task of cleansing the internet. This approach clearly places enormous confidence in jurors to respect Court directions. The authorities also appear to distinguish between archived material which must be actively searched for and contemporaneous reporting which is forced upon a reader. However, our jurisprudence on the issue is very much at an early stage and it would greatly assist practitioners, Judges, accused persons and publishers alike to have solid guidance and principles of general application to operate from in future cases.
This article appears in the Winter 2017 Edition of The Parchment Magazine