Do blogs make reporting restrictions pointless?
The leaked DNA test on 13-year-old alleged dad Alfie Patten has revealed a big problem with court-ordered reporting restrictions and blogs (a problem made worse by the rise of superinjunctions).
Court orders forbidding publication of certain facts usually apply only to people or companies who actually receive the order. This means there is nothing to stop bloggers publishing material that news organisations would risk fines and prison for publishing.
However, even if a blogger knows 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 problems this will cause the Ministry of Justice have told me they have no plans to address the issue.
In this post I explain:
- What court orders say in general and in the Alfie Patten case.
- Why this means they don't usually apply to bloggers.
- What makes it impossible to find out about the order if you did know it exists.
- What this means for bloggers - and the individual case of one blog.
- What the Ministry of Justice and a lawyer say about it.
- And what needs to be done.
What court orders restricting reporting say
There is more than one court order in the Alfie Patten paternity case. The one I refer to here was made when the Family Court banned further publication of the results of the DNA test to discover whether young Alfie is a father. This came after mirror.co.uk reported the result last Wednesday - it, along with most other UK news sites, immediately removed the story after the court order was made.
Reporting restrictions like this follow a standard template, which has been agreed between representatives of the national media and the Official Solicitor and CAFCASS (the Family Court advisory service).
If you disobey this order
The penalties for breaching an order are clearly given: "If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized".
Who is covered - and why bloggers aren't
The order also sets out who is covered by it: "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."
This is a big part of the problem. You are only bound by it if you know that it exists. There is a standard procedure for alerting most news organisations of a court order using PA's media lawyer service.
But the orders aren't automatically sent to anyone else or publicised. And so no one else is bound by them (although see below).
In particular, a blogger who picked up the initial Mirror story and repeated it would not be banned from doing so, unless they had seen the court order (which they generally wouldn't have done - unless one of the parties to the court order sent it to them).
What is banned - and why you can't find out
This is what the latest Alfie Patten order says: "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]."
The reason I can't tell you the details is that 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 ofÂ the order, as the order bans publication of itself. You can't find out what you're not allowed to say. (Even news organisations who know an orders exists find it problematic to find the details.)
I spent at least an hour searching the internet for sufficient details of this particular court order to work out how to find out what it says. I found nothing. It was impossible to find out which court made the order or what it said.
It was only because I managed to get a copy of it from a national newspaper - something no ordinary blogger could do - that I know what it says (and am therefore bound by it!)
What this means for bloggers
When I first started looking into this, I assumed there would be some central database of reporting restrictions which explained in general terms what you could or couldn't report. No such database exists (although its been discussed for some time).
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.
There is a logic to this - being allowed to publishing the specifics of the order would enable publishers to sidestep the ban on what you can report.
So what does it mean if you did want to write a story about something that might be covered by a court order?
A lawyer's view
I asked Struan Robertson, Legal Director at Pinsent Masons and editor of out-law.com, what all this meant for bloggers.
He agrees that "in this case the court has limited the effect of its Order to those who know that it has been made. Accordingly, it is for a party to the proceedings to spread word of the Order to minimise the risk of unwanted press coverage. While mainstream news organisations will be aware of the ruling, smaller websites and blogs may not know about it."
But he adds a note of caution - and a worrying one for bloggers 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.
Case study: Martin Belam's Currybet blog
A post by Martin Belam on his Currybet blog shows the problem - he showed how Google News and Mirror.co.uk were still giving out the results of the DNA test, even though reporting of this was banned.
His post includes screenshots from Google News (showing headlines from non-UK news sources revealing the DNA results) and from the Mirror site (showing the page they replaced the story with - and which inadvertently still reveals the results).
I asked Martin whether he was worried he was breaching the reporting restrictions (and to be 100% clear, although I have seen the court order, he has not - I haven't sent him any details of it, and he does not know what it restricts the reporting of). This is what he said:
'I just have to guess, which is never the soundest legal footing'
"The problem for me as a blogger is that I haven't seen the reporting restrictions, nor do I know how I would go about applying to see them, so I just have to guess, which is never the soundest legal footing to be on.
"If you look very carefully at what I posted, I was very careful not to say anything definitive about the case myself. All I have done is to link to things and shown pictures of information that was already publicly available.
"So I believe that I've stayed on (just) the right side of the restrictions, by reporting the reporting, rather than reporting the facts. But, as I say, as I don't know what the restrictions say, I've no way of knowing.
"I've also moderated off a lot of comments that I think went too far in actually saying what the story was and directly commenting on it."
He knows there's a court order - but he's got no way of finding out what it says, so he's had to guess at what he can and can't say.
How the court order has affected me
Now that I've seen the order, I've amended the screenshots on my previous blog post, pointing out that Walt Disney and Brand Republic were probably breaching the terms of the court order, to hide some of the words.
I've also had to point out to one major UK newspaper site that one of their employee bloggers had inadvertently published restricted information in the link text to a US website (they've removed this now).
What the Ministry of Justice says
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 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 added: "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 told they must 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?
I've been extremely careful with what I've said here. But 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).
They've either not seen the court order or are ignoring it and the court doesn't know or care. But if the current system hasn't even realised that Google News exists, what hope is there of it dealing with individual bloggers?
You might also like
- Alfie Patten: what have we learned about reporting restrictions?
- ITV.com breaches Alfie Patten court order?
- Twitter and super injunctions: no one need pack their toothbrush
- Are Brand Republic and Walt Disney in breach of Alfie Patten court order?
- Super injunctions and Twitter: Alfie Patten, John Terry, [redacted] and [redacted]