Does posting a hyperlink to a court judgment constitute publication of the ruling? A UK court says not — unless the ruling expressly prohibits this
If a court bars the publication of certain material on social media, would inserting a hyperlink into that same material constitute ‘publication’? The question has arisen in the UK courts via a long-running and distressing family dispute case. Medway local authority in Kent had removed two children from their mother, Sara Root. A court order also limited her contact with the children whom she has not seen since 2010.
Root has been campaigning against Medway about what she believes is the unlawful removal of her children. To protect the children Medway has brought several applications prohibiting Root from identifying the children by name or by photograph, or from ‘making any publication of court papers’ relating to her children.
But despite these orders, Root has continued to publish material on the internet. Her children said this was distressing and they wanted her to stop putting information about them on Facebook and elsewhere.
Judge Lucy Theis, who had to consider if Root had committed contempt of court, found that one of the issues raised was whether ‘posting a hyperlink to a judgment constitutes “publishing” that judgment’.
No binding authority
There was no binding UK authority on these questions, but counsel found a case from the Canadian supreme court and another from the supreme court of New South Wales. Both involved hyperlinks to allegedly defamatory material.
Theis said she found the majority decision in the Canadian case more compelling. In her view, making reference to the existence of something by hyperlink, without more, was ‘not publication of that content’.
The majority in the Canadian case said that a hyperlink communicated that something existed but that ‘a further act is required before access is gained to it.’ One of the minority in the judgment said that excluding hyperlinks from the scope of the publication rule was ‘an inadequate solution to the novel issues raised by the Internet’.
In the opinion of Theis, publication of the judgment citation with a hyperlink did not equate ‘with publishing the full judgment in connection with any identifying information relating to the children.’
‘It comes very close, but in the circumstances where this court is dealing with proceedings involving contempt, the position needs to be unambiguous.’
Theis then suggested that in future, when judges considered orders such as those that had been made in this case, it would be sensible for the court to consider ‘whether there should be an express prohibition of publication of hyperlinks’.
A hyperlink, she found, was ‘a reference to the existence and/or location of the content, rather than publication of that content.’
‘To get to the content a further step needs to be taken, namely, to click on the link. It is arguable that without clicking on the link there is no publication of it.’ Given that there were competing arguments in this as yet undecided area of the law, however, Root ‘should be given the benefit of that uncertainty’.
But there were other postings on Root’s Facebook page that were clear breaches of the court orders, including photographs and names of the children, and the court sentenced her to an effective nine months in prison for contempt.
Printed in red
Having reached the end of the judgment I went back to the top again, to the reporting restrictions order, printed in red, that heads a decision on family or other matters where the court believes it in the interests of justice or the parties that anonymity should be ensured. The restriction order in the Root’s case, however, was slightly different from the usual form.
Heeding her own advice in the judgment that followed, the judge had added that neither the judgment nor ‘hyperlinks or citations to the judgment’, could be published in a way that named the children or identified them.
* Financial Mail, 15 August 2019