IN Attorney General v Associated Newspapers Ltd. [2011] EWHC 418 (Admin) the High Court held, for the first time, that the online publication of a photograph breached the Contempt of Court Act 1981.

The case concerned the trial of Ward, who was charged with murdering Wass, after Wass had attempted to prevent Ward from assaulting Ward's girlfriend. Ward pleaded self-defence. The trial judge empanelled the jury, noted the publicity surrounding the case and warned jurors not to “try and get information from outside this room” and cautioned “[d]on't, for example, consult the internet”. That same day, the Mail Online published on its website a photograph of Ward holding a pistol with his right hand whilst indicating the firing of a handgun with his left hand. It was posted by mistake, as a freelance journalist working for the paper had not been informed of the Mail's decision not to run the photograph. It was removed five hours later. The following day the Sun Online posted the same photograph on its website. This too was a mistake, as employees responsible for the posting failed to crop the photograph so that Ward's hands were not visible as the editors had instructed. The image was removed after 17 hours. The jurors never saw it.

The Attorney-General commenced proceedings against the parent companies of these newspapers for contempt of court. Section 2(2) of the Contempt of Court Act imposes strict liability for a publication which “creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. The fact the defendants posted the photograph by mistake, and did not intend to prejudice the trial, was irrelevant. The court held, in line with existing authorities, that a “substantial risk” is a low threshold, requiring only that the risk is “more than remote or minimal” (at [22]). It then assessed this risk in relation to two main issues: (i) the risk the jurors would actually see the photograph, and (ii) the risk that, assuming they did, this would seriously prejudice Ward's trial. Regarding the first main issue, the court held, in line with existing authorities, that assessing this risk is a prospective exercise, so that the question is whether the jury might see the impugned publication and not whether they actually did see it (at [25]). In assessing this risk, the court considered evidence of the history of “hits” the impugned site received, just as circulation figures are relevant where print editions are concerned (at [25]). The time of day the publication appeared and the duration of time it remained on the defendants' websites were also relevant considerations (at [27–29]). Finally, the court considered the difficulty of accessing this photograph as a factor potentially distinguishing online publications from print media. The defendants argued there was no risk that a juror could view the photograph accidentally, because doing so required scrolling down the page and clicking a link. Since viewing had to be deliberate, it would violate the judge's prohibition on consulting the internet. This militated against the risk of viewing, the defendants submitted, since jurors were unlikely to disobey the judge's instructions. The court appeared to accept this reasoning in principle (at [40]), but rejected it on the facts by taking an extremely narrow view of the judge's prohibition. The judge's prohibition, it found, did not extend to reading newspaper articles about the case, and so, by extension, jurors were not prohibited from reading online newspapers. It then distinguished between “reading about the case … online”, which was permitted, and “consulting the Internet or seeking information about the case on the Internet”, which was prohibited (at [33]). Since conscientious jurors, seeking to comply with the judge's instructions, would not understand themselves to be bound to avoid online newspapers, there was a substantial risk that they might come across this photograph (at [33–36]).

Regarding the second main issue (prejudice), the court held that images are “designed for impact” and that the photograph was potentially seriously prejudicial to Ward's self-defence plea because it created the impression he “enjoyed demonstrating a propensity for violence” (at [41]). The court also rejected the defendants' submission that, even if the photograph was potentially prejudicial, there was no substantial risk of actual prejudice because the jurors would likely heed the judge's conventional instructions to focus exclusively on the evidence produced in court when reaching a verdict. The court observed that this argument rested on a line of authority (beginning with Attorney General v Guardian Newspapers Ltd. [1999] E.M.L.R. 904) suggesting that contempt requires proof that there was actual prejudice “such as to justify a stay or a successful appeal against conviction” (at [45]). But there is a second line of authority (reflected in Attorney General v Birmingham Post and Mail Ltd. [1999] 1 W.L.R. 361) suggesting a lower threshold, requiring proof that the offending publication would have created “a seriously arguable ground of appeal” (at [47]). The court endorsed the latter approach, reasoning that the question posed by the Act is forward looking: it concerns the assessment of the risk of prejudice, not the finding of actual prejudice. It also doubted the reasoning of the defendants' submission, observing that a publisher who creates a risk of prejudice “cannot always” rely on a judge's instructions to “allay the very risk it has created” (at [48]). Accordingly, it held that, assuming the jurors saw the article, there was a serious risk this would influence their verdict and thus give rise to a seriously arguable ground of appeal.

The result of this case seems harsh: the defendants were found guilty of contempt for accidentally posting a photograph which the jury never saw and which they removed immediately upon discovering the mistake. In the court's view, this stringency is warranted because the internet creates “instant news” which makes “instant and effective protection for the integrity of a criminal trial” a pressing concern (at [54]). Online newspapers will have to be very careful about posting potentially prejudicial photographs in the future. Unless the trial judge specifically prohibits the jurors from reading about the case online, posting such images will constitute contempt of court.