Where now for Scotland’s Contempt of Court legislation in the internet age?

As a quick experiment I googled the name of Peter Tobin, the man who has been charged with murdering Vicky Hamilton. To refine the search I also added the name Angelika Kluk.

Sometimes it is easy to forget just how awesomely powerful internet search engines are and Google had turned up 443 results in just 0.69 seconds.

The point was not to prove the efficiency of Google, but to follow up on a weekend conversation with a newspaper pal, who described the nerve-shredding moment when a member of the public posted a message on the paper’s online forums, announcing that Tobin was already serving a jail sentence for the high-profile rape and murder of Angelika Kluk.

It’s less than six months since that case which dominated headlines across Scotland for months. Yet the Scottish press is now legally bound to act as if the Angelika Kluk case never happened. As soon as Tobin was charged with Vicky’s murder, the case became legally “active” under the terms of Contempt of Court Act, 1981, which binds the media.

Now, this is admirable piece of legislation has served the Scottish justice system well for more than 25 years and is designed to make sure any accused person gets a fair trial. Put simply, how can an accused person expect a fair trial if potential jurors have been reading newspaper reports about their shady past, dodgy private life, links with the victim or – heaven forfend – their previous convictions?

The media (which to date has really meant the newspapers) has religiously stuck by the Contempt Act, not only because of the genuinely positive intent of the legislation, but because breaches would be A) heavily punished by the courts and B) leave any offending newspaper or broadcaster hugely diminished in the eyes of their peers. Put it this way, which newspaper staffer would want to land their editor in court? And what paper would want its credibility wrecked by causing the collapse of a trial and letting a possible killer or rapist go scot-free?

As a result every journalist of my generation (and probably most since) had the Contempt act hammered into them to a paranoia-inducing extent. Which explains why my pal and his colleagues were so jumpy when a punter – happily oblivious to the finer nuances of the Contempt of Court Act – decided to fill the newspaper’s forum with details of Tobin’s conviction for raping and murdering Angelika Kluk. Jittery? I think the actualy expression is “sh*t a brick”.

No doubt this is totally baffling to the great Scottish public. Indeed, I think you’d be hard-pressed to go out on the street and find someone who didn’t know most of the ins and outs of the Kluk case and who doesn’t know that Tobin is now in the frame for murdering Vicky Hamilton. So it may seem a bit patronising to those readers to now act as though the Kluk case never happened.

Ten years ago it wouldn’t have mattered. Every paper in the land would have stuck by the Contempt of Court rules regardless. Even five years ago this law still made very good sense, because conceivably there were still people in Scotland in 2002 who had little or no use for the internet and newspapers were still the biggest source of news.

But the internet has changed everything. Top of the Google search I conducted was a full and detailed Wikipedia entry on Tobin, including a thorough and exhaustive list of his previous conviction. Indeed, it was so detailed I believe it even listed the public places where he ever noisily passed wind.

Other articles in the Google list included a raft of online discussions, a detailed BBC article about Tobin’s Kluk conviction and likely involvement in Vicky Hamilton’s murder as well as full and detailed reports from English language media all over the world.In the past it would have been prohibitively difficult to get this kind of information, it would have taken application and a degree of difficult research. Now it takes less than a second and you don’t have to leave your home or office.

The only people who are now being inconvenienced by the Contempt of Court act are the staff on Scotland’s newspapers. While every form of new media is making hay with the Tobin story, the poor old newspapers are still worrying themselves sick about being blamed for prejudicing a trial.

Most papers were actually quite proud of the Act, because it epitomised the fairness of the Scottish justice system and showed the responsible and restrained attitude of our media. Now, in high-profile cases like Tobin’s the act is a complete irrelevance and an unfair straitjacket on the traditional media.

Worst of all, to a media-savvy, netwise public, it would seem like an insult to their intelligence if only it wasn’t so quaintly baffling.  Are potential jurors really expected to believe that the only way they can give a man a fair trial is to indulge in some collective, court-ordered amnesia and refrain from using the internet? Ludicrous.

The Act was once a piece of legislation Scotland could be quietly proud of and the underlying principles remain sound. But it needs reworked – and quickly – for the internet age, or it will simply become an embarrassment to the legal system and a focus for hatred from the traditional media who are sorely disadvantaged by shackles that can’t be applied to their digital rivals.

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