Defining contempt in the Internet age

A review of Cayman Islands contempt of court laws will seek to clarify how the regulations affect Internet bloggers and social media commentators who post or tweet about court proceedings. 

The Law Reform Commission is reviewing current legislation, partly to establish how it should be applied in the Internet age, where everyone is potentially a publisher.  

The review aims to educate the public on various issues connected to contempt, including when the media can report on criminal cases and what details they are allowed to divulge, and establish if new legislation is needed. A spokeswoman for the commission said the review was prompted in part by media calls for clarification of the current regulations. 

One area of interest for the commission is how contempt laws effect a growing number of “citizen journalists” using social media and other websites to post their views. 

“With the rapid growth over the years of the electronic communication of news and opinions, there have been frequent calls for greater clarity on how the law of contempt affects publications by the media and the rights and responsibilities of media houses in respect of such publications,” the commission said in a press statement announcing the review and public consultation. 

The commission is seeking to refine and clarify Cayman’s approach to contempt of court offenses, which can range from speculating about the guilt of a defendant in a newspaper to “throwing missiles at the judge,” according to a consultation document. 

Currently such offenses, designed to protect the integrity of the court system, are governed by various Common Law statutes in the Cayman Islands. The review will establish if that should remain the case or if new or amended legislation is required. 

One of the key aims of contempt legislation is to ensure a fair trial. Suspected criminals, for example, have the legal right to have details of their previous convictions withheld to ensure the jury makes its decision on the facts of the case alone. 

Any publication that creates a “substantial risk of serious prejudice” to court proceedings can be held in contempt and face prosecution. 

One part of the review process will seek to establish what constitutes a publication and clarify whether Facebook posters, internet bloggers and anonymous commenters on news websites face the same degree of liability as more traditional media organizations.  

“There is little authority on what constitutes a publication at common law,” the document points out, drawing attention to how sites like YouTube, Facebook and Twitter have complicated the issue. 

“There will need to be a statutory definition of ‘publication,’ which covers not only traditional publications such as newspapers and news broadcasts, but also the more recent electronic methods of communication.” 

A significant issue for Web-based contempt of court cases is jurisdictional. The document points out that Internet posters from overseas are exempt from Cayman’s laws. 

“We are only concerned with those publishers, in the widest sense of the term, who are resident or based in the islands. This will include the publishers of the traditional media together with local service providers but most notably what have been referred to as “citizen journalists,” the review noted. 

Cayman websites that publish contemptuous remarks from readers, for example, through readers’ comments on their Web page, are potentially liable. 

“It would be possible for a reader of the online edition of the Caymanian Compass resident outside the islands to comment on a pending criminal trial in such a way as to prejudice the right of the accused to a fair trial by, for example, referring to his previous convictions. This places on local media a duty to monitor such comments for possible contempt just as, no doubt, they monitor the contents of their own publications,” the commission pointed out. 

Another aspect of the review will look at how the right to a fair trial should be balanced against the rights of individuals and the media to express their opinions freely – rights guaranteed by the Cayman Islands constitution’s Bill of Rights, which came into force in 2012. 

The legal drafters suggest, in their consultation document, that an “adjustment of the balance in favor of freedom of expression” may be necessary. 

The document also suggests reporters should be allowed to record criminal proceedings at the discretion of the judge, but balks at the idea of allowing cameras in court. 

“The experience in the U.S., from the O J Simpson trial to the [George] Zimmerman trial, does not fill us with any enthusiasm for permitting TV cameras into the courtroom,” it adds. 

The consultation paper will be published on www.gov.ky as well as on www.lawreformcommission.gov.ky. The public can submit comments no later than April 10. Submissions can be posted to the Director, Law Reform Commission, P.O. Box 1999 KY1-1104, delivered by hand to the offices of the Commission on the first floor, DMS House, Genesis Close, or emailed to [email protected].