Contempt of Court in an Internet Age

Robert Clark, Partner, Commercial Disputes Lawyers, Deacons

All eyes were on Hong Kong in November of last year when investment banker Rurik Jutting was accused of a violent double murder of two Indonesian women. The ensuing international media frenzy saw day-by-day, detailed coverage in not only news outlets but on social media platforms as well. The global media is set to descend again once Jutting’s trial begins in early 2015.

Before that happens, Hong Kong’s contempt of court laws, covering what can or cannot be reported in the lead-up to, or during a trial, are crucial provisions that should be examined closely before they are tested on a global scale. Created in a pre-internet age, will they safeguard the administration of justice as they were intended to?

The last occasion on which the Hong Kong Law Reform Commission published a report on contempt of court was back in 1986. The Commission concluded that there was considerable uncertainty as to the meaning and operation of contempt of court and the Commission went on to recommend the enactment of a comprehensive Contempt of Court Ordinance. The administration did not act upon that recommendation. It is almost thirty years later and much has changed. Specifically, the invention of the internet has fundamentally changed the nature of reporting and publishing. A quick Google search indicates that access to the internet through commercial internet service providers (“ISPs”) began in the late 1980s, that the worldwide web was itself invented in 1989 (three years after the last Law Reform Commission Report), and that the revolutionary impact on culture and commerce through the internet (by electronic mail, instant messaging and so forth) began in the mid 1990s.

This article examines whether publishers outside of Hong Kong can be equally liable under Hong Kong’s contempt of court laws, as those publishers based in Hong Kong.

Liability of Hong Kong Publishers

The basic proposition is that if an article or story is published and it is likely that the content of that article will interfere with the administration of justice then there is contempt of court. The law requires only that the publisher intend to publish the article and that there is a real risk to the administration of justice through the publication. The subjective intention of the publisher as regards the content of the article is irrelevant. Broadly speaking, publication of problematic material would have to be very close to or during the course of a trial to be considered likely to interfere with the due administration of justice in that trial. A jury is far more susceptible to external influences than a single judge sitting alone, so the cases of contempt we discuss in this article are exclusively focused on the media and involve the disturbance of a fair trial by jury.

Relevant Case Law

In our research, we found only three cases of contempt of court since 2000 in which Hong Kong-based publisher and editor of offending articles were found in contempt.

The first case involved Apple Daily Limited. During the course of the trial of an individual for the murder of a 5-year-old child, an article was published in the Apple Daily Newspaper identifying the accused in the trial by name and photograph, and then describing him as a paedophile. No evidence of such an allegation had been adduced in the trial, nor was it part of the case for the prosecution. The article contained further problematic material. The publisher and editor were both found guilty of contempt (unreported judgment of Gall J. in HCMP No.1926/2000).

In the second case, on the day before the commencement of the trial of an individual accused of the murder and kidnapping of a young child, the Sun Newspaper ran Inhumane Brutality, an article discussing the murder case, identifying the child by name, describing purported forensic evidence (which turned out to be fictitious) and identifying the motive for the killing. On the next day, or the original date set for the first day of the trial, the Sun Newspaper published One Drop of Blood Led to The Arrest of the Murderer, which also published the child’s photograph and identified the defendant as the suspect, providing his nickname and his relationship with the child’s mother. It also described more fictitious evidence and was accompanied by a series of photographs which had nothing to do with the case. Again, the publisher and the editor were found guilty of contempt ([2002] HKCU 76).

A third and similar case was brought against the Sun in 2006 ([2006] HKC 540). There are, it appears, also two cases pending where proceedings were issued in July and August 2013.

Potential Conclusions

The above examples indicate three potential conclusions: (i) that the media in Hong Kong are extremely cautious in what they publish and rarely step over the line, (ii) that offending articles are not brought to the attention of the Judiciary, or (iii) that Judiciary is not as contempt-minded as it could be.

Potential Liability of Overseas Publishers in Hong Kong

The Magistrates Ordinance

One peculiarity of Hong Kong law in this area arises from the restrictions on the reporting of committal proceedings which appear in the Magistrates Ordinance. The Magistrates Ordinance in s.87A provides that: “No person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any committal proceedings in Hong Kong containing any matter other than that permitted by subsection (7)”. That which can be reported pursuant to s.87A(7) is very limited – the identity of the Court, the name of the magistrate, the names, or addresses, occupations and ages of the parties and witnesses, the offence, or a summary thereof, the names of counsel and solicitors engaged, the decision of the magistrate to commit the accused for trial, the date and places to which committal proceedings are adjourned (if they are) and whether legal aid was granted to the accused. Publication in contravention of s.87A is an offence for which an offender is liable on conviction to a fine of HK$10,000 and to imprisonment for six months.

The term “committal proceedings” is defined and used in the Magistrates Ordinance so that committal proceedings are commenced, not when the magistrate actually determines that the individual should be committed to trial at the Court of First Instance, but rather at the point at which an accused is first brought before the Magistrate upon the allegation of the commission of an indictable offence. This, however, is often (it appears) overlooked or disregarded by both the press and the Secretary for Justice who is responsible for prosecuting breaches of s.87A of the Magistrates Ordinance.

Media Coverage of Rurik Jutting’s Case

In the recent press coverage of the arrest and the subsequent charge of Rurik Jutting for the alleged murder of two Indonesian women in his flat in Wan Chai, this peculiarity was graphically demonstrated. As soon as Jutting was arrested, detailed descriptions, imagery, photographs and coverage of him, the victims and the crime scene (and many other matters) appeared in the local and international press. This coverage continued after his arrest and after he was brought before the magistracy on a “holding” charge. It would appear, based upon the Magistrates Ordinance, as it was plain that Jutting was to be brought before the magistracy and likely to be charged with murder, that the press ought to then have reflected upon the restrictions upon reporting of committal proceedings in Hong Kong under s.87A of the Magistrates Ordinance.

Some of the media coverage of Jutting’s arrest and charge in Britain was particularly colourful and, one would have thought, had such coverage been produced by the press in Hong Kong, it might have caught the attention of the Secretary of Justice. One presumes that the press in Britain simply felt it was immune to the legal system of Hong Kong, because their newspapers are primarily published in the United Kingdom.

Potential Liability

Nowadays, anyone who has a smart phone, a tablet computer or a myriad of other devices, can access international and local media 24 hours a day. As a matter of law, the publication of an article which appears on a website does not take place in the jurisdiction where the ISP that hosts the website is located. Rather it takes place where the reader of the article downloads the article to read it. Thus, if the reader, physically located in Hong Kong, downloads an article from a newspaper website in Britain or elsewhere, the article will be deemed to have been published in Hong Kong.

Consequently, the overseas publisher of an online article who allows it to be accessed from Hong Kong is, it appears, equally liable to prosecution for contempt of court or a breach of s.87A of the Magistrates Ordinance, as is a newspaper publisher who produces a Chinese language newspaper in Hong Kong for consumption by the Hong Kong public (see the Apple Daily and Sun Newspaper cases mentioned above).

In a city which is saturated by users of smart phones, tablet computers and the like and whose users are very likely to be bilingual, it is conceivable that the publication of an online article which, if it were published in Hong Kong by a Hong Kong newspaper publisher, would offend Hong Kong’s contempt of court laws must be equally capable of being likely to interfere with the due administration of justice.

But, the publisher may suggest that the article was uploaded online months (or even longer) before the trial commenced, so it cannot be likely to affect jurors sitting in a trial now. The problem with this argument is patently obvious: the internet has an apparently limitless ability to store searchable, instantly retrievable information.

Jurors will have access to their smart devices when they are not sitting in the court room. It would only be human for a juror, sitting as such in a highly publicised trial of a criminal matter, to go home every night and seek to read on the internet what the press is saying about the trial in which they are involved and to search the web for earlier, stored or cached articles. So the proximity of the first “offensive” publication of an online article to the commencement of a trial becomes far less relevant because that article, once put online, is available to be accessed and read in Hong Kong by jurors immediately before and during trial and, potentially, even during the jury’s deliberations in the jury room. Were it necessary, it ought to be possible through IT systems to ascertain when, where and ultimately who has accessed and read relevant online material.

Conclusion

Hong Kong’s common law contempt of court system has been in place for a very long time. As previously mentioned, the last time law reform was considered was before the world wide web was invented and before commercial ISPs were conceived.

The potential problems posed by the internet are not readily soluble (other than by perhaps removing jurors and potential jurors access to the internet), but it is certainly an issue that the Law Reform Commission of Hong Kong should revisit before the 30th anniversary of its last report on the topic.