British blockade

A U.S. newspaper’s decision to block articles because of U.K. laws shows the pitfalls of publishing in countries with different press standards.

From the Fall 2006 issue of The News Media & The Law, page 26.

By Catherine Spratt

On Aug. 28, The New York Times ran an article, headlined “Details Emerge in British Terror Cases,” containing details about suspects who were allegedly plotting to blow up transatlantic aircraft.

Nearly anyone in the world with an Internet connection could read the article with a click of the mouse anyone, that is, except for a reader located in Britain.

When Internet readers in the United Kingdom clicked on the headline, the story did not emerge. Rather, an unprecedented message appeared: “On advice of legal counsel, this article is unavailable to readers of nytimes.com in Britain. This arises from the requirement in British law that prohibits publication of prejudicial information about the defendants prior to trial.”

In addition to making the article unavailable online to U.K. readers by using technology intended for targeted advertising, the Times did not deliver any print editions of the paper to the U.K. that day.

The Times’ decision highlights the potential legal perils involved in publishing in an increasingly globalized world. In the Internet age, U.S. media outlets are more accessible to foreign audiences and therefore may be more subject to other countries’ press laws.

England has strict laws about publishing prejudicial information about criminal suspects, particularly compared with the United States.

The right to publish details about suspects in a criminal trial is protected under U.S. constitutional law due to the high value placed on freedom of the press.

In contrast, England has stringent reporting restrictions on covering criminal cases, based on the rationale that a suspect’s right to a fair trial trumps the rights of the press.

According to British media lawyer Alistair Bonnington, the British legal philosophy is that “the whole country has to be cloaked in ignorance so that the jury members come to the jury box with no previous impressions.”

Defendants who believe that press reports have unfairly affected their trials can try to get the court to stop their trials. If the court grants such a request, the suspect goes free.

Journalists who violate the reporting restrictions are in danger of being held in contempt of court, which can lead to fines and, in rare cases, jail time.

The major law addressing this issue is Britain’s Contempt of Court Act 1981, which outlaws publications that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced.

Determining whether a publication might be found to create a substantial risk of prejudicing proceedings can be a difficult process. English courts consider a number of factors, including the likely impact of the publication on an ordinary reader at the time of publication, the likelihood of the publication coming to the attention of a potential juror, and the residual impact of the publication on a juror at the time of trial.

Some British media lawyers have suggested that the Times’ decision to block U.K. readers from viewing the article was an unnecessarily cautious, if understandable, move. Others have insisted it was a wise course of action.

The Times article contained incriminating details about the suspects, whose alleged plot to blow up multiple transatlantic aircraft raised terror alerts and wreaked havoc on air travel this summer. According to the article, during raids of an apartment that investigators called the suspects’ “bomb factory,” British police found jihadist materials, martyrdom videos, and components that can be used to make a liquid explosive.

British lawyer David Hooper said: “The story as printed does give a clear impression that these guys are probably guilty as charged. … You could not print this in an English newspaper.”

The British attorney general had warned the press of the potential consequences of speculating about terror suspects, according to the British newspaper The Guardian.

Some of the incriminating details from The New York Times story were reprinted in British newspapers, including The Times of London. The papers were not charged with contempt. But the attorney general sent a letter to the London Times in response to the article, urging restraint in reporting information that could hurt investigations and warning that such reporting could lead to the paper being held in contempt of court.

U.K. media attorneys who argue that publishing the article would not have created a substantial risk of prejudice say that the suspects’ probable trial date is at least a year away. This would decrease the risk of prejudice due to the “fade factor” analysis employed by British courts, which is based on the theory that details about a suspect may fade from potential jurors’ minds if the article is printed far in advance of trial.

However, the traditional “fade factor” analysis may be affected by the Internet. Before the Internet, reading an article printed months earlier would have required a trip to the library and possibly hours spent on a microfilm machine. Now articles can be accessed online with minimal effort.

Another issue the court would consider is the likelihood that a potential juror in England would read an article in The New York Times.

Some assert that the likelihood of this is low since it is an American newspaper. Others argue that the Times has thousands of online readers in the U.K., many in London, where the trials will be held. In addition, the public’s high interest in the terror cases increases the chance that potential jurors would read it.

An imperfect solution?

But blocking an article from being read within a certain geographic zone may not be entirely effective. Such technology is far from perfect savvy computer users often can get around it.

As British media lawyer Mark Stephens told The Associated Press, “With the Internet, bloggers, spam e-mails and all these bits of information available within seconds with a click of one’s finger, blocking information achieves the opposite of what the courts want it just fuels an insatiable curiosity.”

David McCraw, legal counsel for the Times, said that before making the decision about whether to make the article available to U.K. readers, the paper consulted at least four British firms.

All of the firms advised that it would be risky to publish the story either in print or electronically. Under English law, an article posted on the Internet is considered published in England if a sufficient number of people there have read and comprehended it.

“We looked at this as a unique situation,” McCraw said. Factors such as the enormity of the trial itself, the story’s focus on evidence, and the amount of assets and staff the Times has in England led the paper to take a different approach than it would with most other stories, he said.

Despite being a U.S.-based newspaper, the Times has reporters, editors, offices, and other assets in Britain. This means that the courts there have jurisdiction for contempt of court cases and the power to enforce such judgments.

But do U.S. journalists or newspapers with no permanent staff, offices or other assets in the U.K. need to worry about being held in contempt?

Caroline Kean, a litigator at Wiggin LLP, a media law firm in London, said American reporters from papers with little presence in Britain other than print and Internet publications “don’t need to worry about the criminal process here. It’s highly unlikely they’d be held liable for contempt.”

Hooper agreed. “The attorney general has to approve prosecution and prove that it is worthwhile bringing it,” he said. If there were no assets or defendants in the U.K., Hooper said bringing such charges would be “pointless.” He said the attorney general has never approved prosecution against an American newspaper.

In the unlikely scenario that a British court did fine for contempt an American publication or reporter with no overseas assets, the British government would have to turn to the U.S. courts to enforce the judgment. There is a good chance that American courts would refuse to enforce such a judgment.

The United States does not have a uniform nationwide standard for enforcing foreign judgments. However, most states follow a similar approach. Typically, foreign money judgments are presumed enforceable, but there are exceptions.

One exception is that American courts usually do not enforce monetary fines or penalties of a punitive nature awarded by foreign courts. An American judge might find that fines for contempt of court would fall into this exception and thus refuse to enforce the judgment.

Another common exception is that the judgment is not enforceable if it was granted based on law which is “repugnant to the public policy of the state.” Some American courts have found that foreign judgments that run afoul of First Amendment values qualify as being repugnant to public policy and are thus unenforceable.

In the 1990s, two courts Maryland’s highest court in Telnikoff v. Matusevitch and a New York trial court in Bachchan v. India Abroad Publications Inc. refused to enforce British libel judgments on these grounds. This line of reasoning could possibly apply to contempt of court fines as well.

Even if U.S. courts may provide some level of protection, the reality is that many U.S. media outlets have substantial assets and staff in other countries. By posting pieces on the Internet, American writers and publishers, particularly those with overseas assets, may be rendering themselves vulnerable to lawsuits in countries where freedom of the press is less protected.

Many courts abroad have shown a trend towards being willing to haul distant Internet publishers into court.

For example, Australia’s highest court ruled in 2002 that Dow Jones Co. could be sued for libel in Australia over an article that was written in the United States and distributed over the Internet. Dow Jones argued that the Internet article should be considered published in the United States, which is where it was written and uploaded, in which case the Australian court would not have the authority to rule on the case. The court disagreed, reasoning that publication occurs where a defamatory publication is comprehended by the reader.

U.S. publications with assets in such countries may thus be faced with the choice of risking litigation, forgoing publishing an article or trying to employ geographical technology to block users in certain countries.

Some academics and practitioners have called for the formation of an international agreement to help writers and publishers navigate the potentially perilous waters of Internet publishing. But they acknowledge that this is unlikely to happen anytime soon.