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Website in contempt?

By Steven | March 9, 2008

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 Solicitor-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 information 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.

Topics: Contempt of Court, Internet issues | No Comments »


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