British Broadcasting Corporation & Eight Other Media Organisations, R (on the application of) v F & D

Publicly accessible social-media comments linked to reporting of an active criminal trial may create a substantial risk of serious prejudice, even where the underlying reports are fair and accurate. Media organisations which provide the platform may be treated as distributors and must take reasonable care once on notice of the risk.

Where targeted controls can prevent the risk, an order restraining publication under section 45(4) of the Senior Courts Act 1981 may be a more proportionate interference with press freedom than postponing all contemporaneous reporting under section 4(2) of the Contempt of Court Act 1981.

During the murder trial of two young defendants at Teesside Crown Court, severe public comments appeared beneath media organisations’ trial reports on Facebook. The trial judge discharged the jury because the comments created a real risk of injustice, ordered a retrial, and later postponed reporting of the retrial under section 4(2) of the Contempt of Court Act 1981.

Nine media organisations appealed under section 159 of the Criminal Justice Act 1988. They accepted that a narrower order could prevent them from placing trial reports on their Facebook pages and could require comment functions on their own news websites to be disabled. The central issue was whether the substantial risk to a fair trial justified the reporting postponement, or could be addressed by a targeted order.

1. Appeal allowed. The court discharged Globe J’s postponement order under section 4(2) of the Contempt of Court Act 1981 and substituted targeted restrictions under section 45(4) of the Senior Courts Act 1981.

2. The Facebook comments were not comparable to fair and accurate court reporting. They were immediately accessible, could be readily explored by jurors or others interested in the case, and included threatening, derisive and contemptuous material. Comments of that kind created a substantial risk that the course of justice would be seriously prejudiced. The court therefore rejected reliance on the general robustness of jurors and on cases involving earlier, fading publicity.

3. The court endorsed the media organisations’ acceptance that they could be treated as distributors of third-party comments appearing on their Facebook pages for the purposes of section 3(2) of the Contempt of Court Act 1981. The statutory defence depends on reasonable care. Once organisations have been put on notice of the predictable risk, they cannot safely rely on a passive response to prejudicial comments.

4. The court did not decide the wider question whether, and in what circumstances, section 4(2) could be developed to regulate this new social-media problem. It held that this was unnecessary because the narrower mechanism was available and was less intrusive of the press’s Article 10 rights and of the public interest in contemporaneous criminal reporting.

5. Until verdicts or further order, the media organisations were prohibited from placing reports of the trial on their Facebook profile pages and required to disable user comments on trial reports on their own news websites. The court also directed removal of the separate publicly available Facebook link containing prejudicial material, subject to Facebook’s right to apply within seven days.

• Court of Appeal (Criminal Division). In [2016] EWCA Crim 12, the court allowed the media organisations’ appeal, discharged the section 4(2) order, and substituted targeted restrictions under section 45(4) of the Senior Courts Act 1981.

• Crown Court at Teesside. Globe J discharged the first jury because of prejudicial social-media comments, ordered a retrial at Leeds, and on 9 November 2015 refused to discharge an order postponing reports of the retrial under section 4(2) of the Contempt of Court Act 1981.