Clinical-III (Professional Ethics and Professional Accounting System)

FREEDOM OF PRESS V CONTEMPT OF COURT IN INDIA AND UK: A

COMPARATIVE ANALYSIS.

KASTHURI. R

BC0180027

Table of Contents
INTRODUCTION: ....................................................................................................................................... 2
OBJECTIVE AND SCOPE OF THE RESEARCH: .................................................................................... 2
RESEARCH QUESTIONS: ......................................................................................................................... 3
MEDIA TRIAL AND ITS EFFECT ON JUDICIARY ................................................................................ 4
Social media trial ...................................................................................................................................... 4
Problem with the social media trial........................................................................................................... 5
THE BALANCE GAME: FREEDOM OF PRESS AND ADMINISTRATION OF ................................... 7
UK’S POSITION ...................................................................................................................................... 7
IN INDIA .................................................................................................................................................. 9
SOCIAL MEDIA TRIAL AND CONTEMPT OF COURT....................................................................... 11
IN UK ..................................................................................................................................................... 11
IN INDIA ................................................................................................................................................ 12
CONCLUSION ........................................................................................................................................... 13
BIBLIOGRAPHY ....................................................................................................................................... 13

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INTRODUCTION:
From earlier times, the use of the media has become a significant aspect of democratic countries
since it is linked with the right of the public to know about their country's current state of affairs.
Due to the development of social media and other technology, media has become efficient in
delivering the news in faster manners. Media also started to investigate and report on sensational
cases through their own interpretation of facts which is called investigative journalism. This
influences the mindset of the public about the guilt or innocence of the party involved even
before the court has come to its conclusion, this is known as a media trial. The Nirbhaya case and
Ayodhya disputes are some examples of media trials.
In the current scenario, there is a conflict between the media trial and proper administration of
justice. Media trials may amount to contempt of court in the instance of it being a hindrance or
prejudice to the judicial process and administration of justice, especially the publication of
evidence and witnesses and were vicious and traumatic for everyone involved such as in the case
of trail of Rhea Chakraborty in Sushant Singh case . This paper aims to provide the position of
publication of matters by the social media on the pending trial in India and the UK.

OBJECTIVE AND SCOPE OF THE RESEARCH:

In the current scenario, the trial by media has been restricted for contempt of court under Article
19(2), Article 129(2) and Article 215 of the Indian constitution and also under section 2 of
contempt of court Act 1971. Still media trials are interfering in the administration of justice in
one way or another, and there are instances where the media trail has it went completely out of
control that it started to affect the public also. In these instances of publishing evidence gathered
by media investigation on pending trials has arisen the question of media facilitating or
hampering the administration of justice. Thus, brings in the question of freedom of speech of
social media in conflict with the administration of justice by the court within the contempt Act,
1976. It also brings in the question of implementation and adequate restriction placed on the
media trail under the contempt of court Act 1976.
The scope of the paper is limited to the concept of media trial and contempt of court, and
legislations regarding the same under the jurisdiction of India and UK.

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RESEARCH QUESTIONS:
1. Since there is a rapid growth on the part of the social media and their reporting of the
case and there is a need for controlling and regulating these media trails, whether the
restrictions of media trail in the pending case under the contempt of court provides
sufficient restriction for social media? And what can be done to regulate the social
media?
1.1. And what is the current position of UK in this regard?
2. What kind of balance is or can be established between media’s freedom of press and
administration of justice in the case of social media trail?
2.2. And what is the current position of the UK in this regard?

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MEDIA TRIAL AND ITS EFFECT ON JUDICIARY

Social media trial

Social media and social networking have a wide range of information that are circulated among
the world within mere seconds and also allow the users to share their and views that would in
turn gets instantaneous responses to from the public. The social media is consisting of websites
and applications that enable the people to share content quickly and efficiently. Example: Face
book, twitter which has an integral part of each individuals part of everyday life for multiple
purposes and one of them is to access for the news about world happenings. Thus the
intervention of the social media in the under – trial cases has become a huge phenomenon.
Because of this people are freely gives out their opinion and views without any restrain about the
case in the global platform that in turns affect the views of the others.

Turning into a public court, the media starts investigation of the ongoing case separately and post
or state their opinions in the social media platforms. Even though the freedom of speech and
expression found this expression of the opinion to be healthy in the democratic country, it does
not embrace the freedom to interfere with the administration of justice which is the function of
the court. In spite of social media being a tool for many social changes, it does provide room for
fake news and speculations that in turns produce an adversary effect on the society as well as the
function of the court in the sub judice cases.

Social media trials on the sub judice cases are often intrusive and unethical. It has become a
trend for the media to pose as a judiciary by investigating the evidence and finding the truth. The
judiciary system at its core has the duty to provide justice to the society at a stipulated time.
Nevertheless, it is hardly done nowadays. People have to wait for years to obtain justice and
sometimes they have to pray for justice. Thus media trial as a phenomena gain attraction in the
developing with the lack of faith in the judiciary because of the extreme pendency problem.

The social media is also used by the accused of crime to reopen the case proceeding in the recent
times. In the cases of murder of Jessica Lall Priyadarshini Mattoo, Nitish Katera, BMW, and
Aarushi, the influence of the media were in full swing that they affected the trial of the these
cases in the court. Thus this widespread use of the social media poses threat for the legal process,
specially the twitter and Facebook, presenting as threat to the fair media trial.

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Problem with the social media trial
1. Influencing the mind of the judges and public.

In the high profile case, the media trial could influence the judges and their opinions.
Article 21 read with section 304 of CrPC ensures that everyone gets a just fair trial free
form any personal prejudices with a unbiased and fair judge, witnesses and prosecutors.
Media painting the parties of the case in a certain way might influence not the public but
the judges and juries. There are instance where the judges are being pressured and
threatened to pass judges in the way that is appeasing to the public thus corrupting the
idea of fair trial.1

In A-G v. Fraill, the London’s high court prosecuted a jury for contempt of court
sentenced to eight months in jail for sharing face book messages with the accused in the
drug trail for which she was sat as jury. In the UK, a juror has to be removed from the
court as she was asking her friend help for deciding a verdict on the child abduction and
sexual harassment case. Mistrials has been declared and the convictions are overturned
because it was found out that the juries in those has been accessing information from the
Internet of the case that are not presented before the court. In Benbrika v. The Queen, the
Victorian Court of Appeal dismissed the appeal by stating that the internet searching by
the jurors has greatly tainted the trial of the court.

2. Publishing of the inadmissible evidence

Publishing of inadmissible evidence in the public domain by the social media could
might get the attention of the judges and the public that was never taken into
consideration in the adjudicating the subject matter which may affect the decisions of the
Judges subconsciously. After the ‘me too’ movement, social media has become a place
where the facts and evidences are published that leads to thrashing and attacking the
accused without waiting for the court to decide upon the evidence and hearing the
accused side.

1
Mukesh & Anr. v. State for NCT of Delhi & Ors.

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 3. The reputation of the accused

In Roscoe “fatty’ Arbuckle case, one of first trial by media where the accused was
convicted and also lost his job and reputation because of the wide media coverage about
him in relation to the case. Discussing about the social and economic conditions of the
accused person in the media creates a hindrance when it comes to impartiality thus
creates a prejudice in the minds of the general public as well as the judges and juries that
are involved in the case. The principle of “innocent until proven guilty’ has been
undermining greatly in the media trial, since judgments are passed without any credential
proof.

The media in the madness for sensationalism greatly fails in terms of recognizing the
accused right to life and dignity, it causes defamation to the acquitted person and thus
makes them lose their jobs and reputation in the eye of public.

4. No consideration of the victim

Mostly in the case of sexual offense, the media tense to give a explicit description of the
incidents in the social platforms with no regards to the agony it in turns cause for the
victim mental. Publishing of the victim’s statement in verbatim in the public domain thus
leads to the breach of privacy and interferences with the process of the investigation.

In State of Maharashtra v. Rajendra Jawanmal Gandhi2, the Supreme Court held that a social
media trial goes against rule of law that results in the miscarriage of justice.

But in the case of Santosh Kumar Singh v. State3 shows that pressure from the public leads to
retry under High Court in which the accused was sentenced to death while the trial court in the
same court acquitted the accused. Also in SidharthaVashisht @ Manu Sharma vs State4, accused
was sentenced appropriately after the social media campaign that leads to reveal of the relevant
facts of the case.

2
State of Maharashtra v. Rajendra Jawanmal Gandhi, [1997] 8 SCC 386.
3
Santosh Kumar Singh v. State, [2010] 9 SCC 747.
4
SidharthaVashisht @ Manu Sharma vs State, [2010] 6 SCC 1.

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THE BALANCE GAME: FREEDOM OF PRESS AND ADMINISTRATION OF
JUSTICE

UK’S POSITION
One of the most important role of the contempt of court when it comes to common law is the
application of the sub judice rule which means no one shall interfere with the proceedings of the
court in relation the pending case. However in practice, this rule prohibits the publication of
matters that has the tendency to cause prejudice to fair and just trial during the pendency of the
case in the court that is trial by media.

The rational of this rule is explain in “Attorney-General v. Times Newspaper Ltd.”,5 Lord
Diplock states that administration of justice, first is that every citizens have the right to try their
dispute under the constitutionally established criminal as well as civil court for determining their
legal rights and legal liabilities that they are entitled to. And Secondly, they should be able to
obtain arbitrament of a tribunal that is unbiased decision that is based on the facts that are proved
in evidence that presented before the court through the procedure of law. And thirdly, once the
case has been presented before the court, there should be no usurpation of the function of court in
deciding in accord with law by any other person. Conducts that prejudice any of the above stated
requirements may undermine the public confidence towards judiciary that amounts to contempt
of court.

Examples of such violations are publication of the matter that abuses or pressure the parties to
the proceeding to the extent of deterring them from attending court or publication of the not
admissible evidence that may create a bias in jury or publication of previous convictions of the
accused that are in the present case is irrelevant or publications that prejudice the case such by
declaring the accused as guilty before the court has declare the judgment.

1. Strict liability

When it comes to UK, contempt is regulated under the contempt of court Act 1981 and contempt
in relation to administration of justice is considered as strict liability offence. Under section 2

5
Attorney-General v. Times Newspaper Ltd [1973] 2 All ER 54.

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(2), the liability test states that it would be applicable only for a publication that creates
substantial risk to the course of justice proceedings that would be seriously impeded or
prejudiced. The contempt of court law was passed in response to the decision given by the
European Court of Human Rights in the case Sunday Times v. United Kingdom6 where the
European court applied the three part test, and held that interference with freedom of speech was
“presecribed by law” that had a “legitimate aim” that is maintaining the authority of judiciary
and was not “necessary in a democratic society”. The court introduced a proper approach that the
court is not faced with the two conflicting principle but rather presented with principle of
freedom of expression that has exceptions that are to be narrowly interpreted.

The reason was that social need that is currently sufficiently pressing is more important than the
public interest to know about the case. Thus from the above case we can say that important
information which has been deprived to public because it presents a threat to the “authority of the
Judiciary.”The court also clearly stated that the authority of the judiciary extends beyond the
rights of an individual litigant and includes the administration of the justice as a whole.
Contempt law protects the litigant rights as they are involved in the machinery of justice, since
the maintenance of the machinery of the authority involves protection of all those who are
involved in the recourses.

2. Pubic interest defense

In the UK, there is a public interest defense in the contempt of court, 1981 under the section 5
that provides that a publication made in the good faith of public interest then it will not be treated
as contempt of court under the rule of strict liability. And also the risk that prejudice to the legal
proceeding is just incidental to the discussion of it. In “Attorney-General v. English”,7 the court
held that although there is risk of not having a fair trial but under section 5 publishing of articles
regarding matter that is pending is not contempt to court.

6
The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229.
7
Attorney-General v. English, [1983] 1 AC 116.

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IN INDIA
Under section 2 of the Contempt of Courts Act, 1971, the interference with the administration of
Justice is referred as one of the grounds against criminal contempt of court that is any
publications that interferes with the administration of Justice or appears to do so will be
considered as criminal contempt of court. This provision provides a reasonable restriction on the
freedom of speech. In A.K. Gopalan v. Noordeen8, it was held that publication of person after
the arrest that is biased to the suspect amounts to contempt of court. According to the natural
principle of justice “right to fair trail” is something every accused person has, thus publications
that prejudice the minds of the Judges or it may be intimidating to victim or witnesses might
leads to unjust and unfair trial that makes the administration of justice impossible.

In India, trial by media some sort of defense that could balance the freedom of speech as well as
the administration of the justice.

1. Innocent publication of matters

Under section 3(1) and (2) of the contempt of court Act 1971, it protects the media from the
innocent publication of the matters, stating that even if the proceeding is pending before the court
irrespective of whether the publication interferes with or have tendency to interfere with the
course of justice under section 3 it is protected. it can be claimed only by the person who is
responsible for the publication. Section 3 brings in the men res in the form of lack of knowledge
thus providing protection for the media if the publisher has no reasonable ground to believe that
proceeding was pending. This immunity is available only if the publication interferes with the
administration of justice.

2. Innocent distribution of publication

Section 3 (3) of the contempt of court deals with another aspect that could be use as a defense for
press freedom that is innocent distribution of publication. This protection is given based on the
reasoning that without providing protection for the distributor, protection given to publication
and publisher in above provision hold no merits. As per the provision a person is not found guilty

8
A.K. Gopalan v. Noordeen 1969 (2) SCC 734

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of contempt of court on the ground that he had distributed publication that likely to interfere with
the pending proceeding and the distributor at time of distribution has a no reasonable ground to
believe that the contain any such material to cause it. Here also men rea is considered.

3. Fair and accurate report of judicial proceedings

Fair and accurate reporting of the judicial proceeding is another defense for the media that is
given under section 4 of the Act that provides that fair and accurate reporting of stages of the
reporting is not considered as contempt, that to proceedings held in the open court. Further this
section limited to the print media alone as the reporting must be without malice giving a fair and
constructive criticism.

4. Postponing of the case

According to the Sahara Inida Real Estate C Corpn. Ltd. v. SEBI, the Supreme Court stated
postponement of the order as one of means to ensure the fair trial. It was also stated that even fair
reporting also causes substantial risk when it comes to media trial. Thus order for postponement
of the case ensures a balance between the freedom of media and accused’s right to fair trail and
safeguarding the administration of justice. But here it fails to take in the delayed justice, the
parties to the case would have to wait for their grievance to heard and resolved.

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SOCIAL MEDIA TRIAL AND CONTEMPT OF COURT

IN UK
When it comes to applying the strict liability and pubic interest defence to the social media, in
case of social media trial it would be applicable as it has the tendency to create substantial risk to
the course of justice proceedings, but it would be impossible to trace out publisher in case where
there are unanimously, and also jurisdiction would be a huge problem when it comes to social
media. Thus it would be difficult to proceed with contempt of court when it comes to social
media. But still UK law has made effort to bring in the social media in to the contempt of court.

In UK, the law commission has made various recommendations in its first report in relation to
the contempt of court that was published in 2013.

1. Juror misconduct

It recommended introducing a new statutory offence for the jurors who deliberately search for
extra information in relation to the case. Specific recommendation includes better education in
school in relation to the duty of jury and awareness of the risk of social media poses to the
administration of justice as well as to the individual users in relation to contempt of court,
simplifying and improving the information that are given to jurors and adapting the wordings of
the oath that jurors make.

2. What amounts to publication?

Section 2(1) of the Act requires communication to be “addressed to the public at large or any
section of it”, the law commission do not define the requires size of the audience for such
communication explaining that there are various form of social media with variety of privacy
settings applied for each and there is difference in the number of users with the access to the
materials.

The law commission proposed to have case to case approach for determination of publication
made to public or section of people; it provides little guidance to it, that the court should identify
the “substantial risk of serious prejudice” in proposition to the prosperity of it being circulation
of the material that is, the number of friends and followers determine it. The mere fact of that

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material is accessible online is enough to establish the fact of publication to the public or a
section of people.

3. Notice-and-takedown exemption

In the case of content being published before the court proceedings have started then the
Attorney General can notify that particular publisher about existence as well as the location of
the content with reasoning as why it is offending and contempt of court.The practicability of this
approach is debatable since information can be retweeted a hundreds of time.

IN INDIA
Under the contempt of court law in India, the provisions are not inclusive of the social media, it
considers more on the newspaper publications and other television news channels. Thus the
social media are not regulated under contempt of court Act, 1971. Even though one can say
section 3 come in for the TV and print media, but does not consider the social media. Even the
Press Council of India that has issued advisory in relation to media trial and its effect on the
investigation and trial does not have jurisdiction over electronic media and it is time for the
social media to be brought into the contempt of court considering it effect in the administration
of justice.

In both UK and India, the law of contempt of court targets traditional publishers and the same
approach would not be applicable for social media, cause in social media the people who are
engaging are not fully aware of the laws regarding the contempt of court. And there are the
difficulty of instituting case against social media are less likely to bring in since it is prejudice is
caused by the collective effect rather than an individual.

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CONCLUSION
When compared to UK, India provides more freedom to press and has many defenses against
substantial risk to the course of justice proceedings that would be seriously impeded or
prejudiced. Press and social media enjoys more freedom in India than UK, nevertheless when it
comes to application of contempt of court law to social media UK has more inclusive of it then
India. While it law commission report recommends guidelines to control the social media trial, in
India there is such guidelines or recommendation, it just postponed the trial which is also not a
recommended as it does not considered the harm of delayed justice.

BIBLIOGRAPHY
A.P. Rajeesh, press freedom and contempt of court law, international journal of law and legal
jurisprudence studies. (December 27, 2022, 2:08 AM)

(http://ijlljs.in/wp-content/uploads/2014/06/PRESS-FREEDOM-AND-CONTEMPT-OF-
COURT-LAWS.pdf)

Dr. Foram Patel, “Trial By Media: An Indian Perspective For Judicial Process”, 6 Journal of
Positive School Psychology (2022).

Aditee Dash, Media Trials: Misuse of Freedom of Speech and Deterrent in the path of Justice,
Manu. (2021) (December 27, 2022, 2:08 AM)

(https://articles.manupatra.com/article-details/Media-Trials-Misuse-of-Freedom-of-Speech-and-
Deterrent-in-the-path-of-Justice)

Nikitha Suresh and Lucy Sara George, Trial by Media: An Overview, 4 (2) IJLMH Page 267 -
272 (2021) (December 27, 2022, 2:08 AM) DOI: http://doi.one/10.1732/IJLMH.26050

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Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56

Jennifer Agate & Jennifer Agate, Contempt and Social Media: Update, 25 Entertainment Law
Review. (2014)

Background Paper on Freedom of Expression and Contempt of Court for the International
Seminar on Promoting Freedom of Expression With the Three Specialised International
Mandates, London UK. (2000). (https://www.article19.org/data/files/pdfs/publications/foe-and-
contempt-of-court.pdf)

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