Why publish and be damned should be the law for everyone

Mainstream media are disadvantaged when websites flout injunctions on naming in legal cases.
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It is common knowledge in Fleet Street that a well-known BBC TV presenter has fathered a lovechild with a journalist. Sports editors talk openly about the former Premier League manager who had an affair and then spent thousands stopping the cuckolded husband from telling his story.

I'm not allowed to name these public figures because they have won injunctions banning publication of their personal affairs. The Independent, like other responsible newspapers and mainstream media, respects the rulings and so there is no prospect of your finding out any more about these stories in our pages. But the identities of both celebrities are just a click away and can be revealed through rudimentary inquiries using any popular search engine.

There appears to be a double standard at work, where the law seems powerless to punish flagrant breaches of court orders by internet transgressors while imposing draconian sentences on the mainstream media for committing much less serious abuse.

Newspapers and some leading media lawyers believe the rules that restrict publication of the news must catch up with the new media – which is at liberty, often operating from outside the country, to publish with impunity. Marcus Partington, legal director at Trinity Mirror, publisher of the Daily Mirror, says we need a fresh look at the restrictions and punishments that govern media reporting. He says: "It's time we had a review of the law in light of the internet, which did not exist when the Contempt of Court Act was passed."

Others want to move quickly to the US system where there is a more laissez-faire approach to the reporting of criminal investigations and public life. Lawyers argue that if the old rules become unenforceable against one set of media, the courts will lose authority in adjudicating in privacy and contempt cases against established newspapers and broadcasters. Newspapers see the problem from a more commercial perspective. Having lost advertising revenue to the internet, they now fear losing readers to websites that promise to tell the whole story, not just those parts of it that the "fuddy duddy" judges say they can report.

Two stories have brought the issue to a head. Last November, the case of 17-month-old Baby P, who died after suffering horrific abuse, showed how ineffective the contempt rules are when it comes to enforcing anonymity orders in new-media age. Although the court had banned the naming of Baby P's mother and her boyfriend, the case led to a frenzy of texting which fired up abusive internet postings and blogs containing death threats to the named couple. One text message claimed the sender was not bound by the same rules that stopped the mainstream media from naming the pair. Social networking sites, including Facebook, followed suit by carrying similar material. Although the police and Attorney General faced growing pressure to act, all they would say was that they would continue to monitor the situation. The Baby P case was followed by the conviction of a 56-year-old father found guilty of raping his daughters over a 25-year-period. Once again, the courts imposed a banning order on naming the man and his daughters. Coming so soon after the Baby P order, the media's frustration at being blocked from fully reporting another sensational story reached boiling point. With the father's name made available on the internet, some papers vented their frustrations by beginning to push at the boundaries of the ruling. The situation wasn't helped when the court orders on how the case could be reported confused the media. The Daily Mail ran a disguised picture of the father, while more and more details about the daughters began to emerge elsewhere.

The influence of the internet is not just restricted to media reporting. More and more judges have been forced to warn jurors about the risk of prejudicing their deliberations by Googling the name of a defendant or principal witness.

Amber Melville Brown, a media law partner at City law firm Withers, urges caution when considering the threat posed by the internet. She says: "Free speech is a highly valued democratic prize; the plethora of publishers in the UK, many of which operate solely on the internet and cater to myriad different tastes, attests to that. But it is backed by the longstanding principle of publish and be damned, allowing the media to publish now but to be damned later in damages if the court finds its actions to have unjustifiably infringed the rights of others."

Sue Oake, senior legal adviser at the Newspaper Society, warns against laws to curb internet transgressions that might restrict the media's current rights. "It is vitally important that concerns should not be allowed to erode essential principles of freedom of expression and open justice."

Newspapers, broadcasters and lawyers are now pressing the Government to widen its ongoing review of the liability of online publication to include the issues of contempt and jury research, arguing that the time has come for new laws better suited to the age of the internet.

Robert Verkaik is law editor of 'The Independent'