Media sum­moned to court over online com­ments

The Star (St. Lucia) - - REGIONAL -

Last Fri­day July 31, the BVI Bea­con re­ported that sev­eral jour­nal­ists in the Bri­tish Vir­gin Is­lands had been sum­moned to the crim­i­nal court that day via an or­der that de­scribed them as “de­fen­dants.”

How­ever, ac­cord­ing to the story, when they at­tended High Court Jus­tice Ni­cola Byer said that most of them had done noth­ing wrong.

Rather, she ex­plained, she had brought them all to court to en­cour­age re­spon­si­ble jour­nal­ism and to is­sue a warn­ing. Vir­gin Is­lands News Online (VINO) and BVI News re­cently vi­o­lated a 2014 court or­der by host­ing online com­ments about on­go­ing tri­als, she said, and fu­ture vi­o­la­tions could re­sult in con­tempt-of-court pro­ceed­ings.

The story went on to say that Ms. Byer and Di­rec­tor of Public Pros­e­cu­tions Wayne Ra­jban­sie then chas­tised rep­re­sen­ta­tives of the of­fend­ing web­sites, and they urged all the jour­nal­ists to re­port re­spon­si­bly on court pro­ceed­ings. In re­sponse, the jour­nal­ists ex­pressed their will­ing­ness to abide by court di­rec­tives, but they also aired con­cerns about re­stric­tions on press free­dom and about the crim­i­nal sum­mons used to bring them be­fore the court.

Queen’s Coun­sel Dan­cia Penn, a for­mer at­tor­ney gen­eral who was there to rep­re­sent the Is­land Sun news­pa­per, ex­pressed sim­i­lar con­cerns, de­scrib­ing the pro­ceed­ing as an “am­bush” that she found “highly dis­turb­ing.”

Ac­cord­ing to the BVI Bea­con, for years, judges and pros­e­cu­tors in the Vir­gin Is­lands have warned media out­lets to care­fully po­lice online com­ments. But they have com­plained of­ten that their warn­ings have gone un­heeded. The is­sue came to a head in March 2014, when Ms. Byer is­sued an or­der pro­hibit­ing all media houses in the ter­ri­tory from al­low­ing online com­ments about on­go­ing tri­als.

“Prac­ti­cally speak­ing, the or­der did not af­fect the Bea­con. As a mat­ter of in­ter­nal pol­icy, this news­pa­per does not al­low users to com­ment on court sto­ries that it posts online,” wrote Free­man Rogers of the Bea­con.

How­ever, on June 30 of this year, the media out­let says it re­ceived a let­ter from the High Court Reg­istry ad­dressed to “Editor-in-Chief: BVI Bea­con.” The doc­u­ment, which was la­belled “Sum­moms [sic] to De­fen­dant,” ref­er­enced a “com­plaint” and stated that any online com­men­taries about on­go­ing tri­als should be re­moved from news web­sites.

Bea­con Editor Free­man Rogers at­tended court on Fri­day morn­ing, as or­dered, along with rep­re­sen­ta­tives from four other media out­lets: the online-only sites Vir­gin Is­lands Plat­inum News, BVI News and Vir­gin Is­lands News Online, as well as The Is­land Sun, a print news­pa­per that also main­tains a web­site. The crim­i­nal as­sizes was un­der way, and the jour­nal­ists were asked to wait out­side while dozens of mem­bers of the jury pool en­tered the court­room. Af­ter the jury pool was seated, the jour­nal­ists were al­lowed in­side. For the next two hours, the High Court pro­ceeded to wrap up the last day of the crim­i­nal as­sizes: sev­eral cases were ad­journed, the prison su­per­in­ten­dent pre­sented a re­port, and lawyers gave clos­ing state­ments.

Af­ter the pro­ceed­ings ended, the jurors were dis­missed, but pros­e­cu­tors stayed be­hind, as did Ms. Penn, the Queen’s Coun­sel who was rep­re­sent­ing Is­land Sun Editor Ver­non Pickering.

A few min­utes later, Ms. Byer ad­dressed Di­rec­tor of Public Pros­e­cu­tions Wayne Ra­jban­sie about the jour­nal­ists present.

“I un­for­tu­nately do not have copies of the ac­tual sum­mons that was served, and I’m not sure who were all served,” she said, adding that she would need a record of who was present. “Do you have a record, Mr. DPP?”

DPP re­sponded that he did not, ex­plain­ing that his of­fice had been in­vited to at­tend af­ter the court ex­er­cised its “in­her­ent ju­ris­dic­tion” to call the pro­ceed­ing.

He rec­om­mended that Ms. Byer ask the jour­nal­ists to state their names for the record, and she did so.

Then the judge ex­plained why they had been sum­moned. “I want to go on record that the na­ture of the sum­mons that was is­sued by the court to the news agen­cies was not to take the form of any for­mal hear­ing, but to re­mind per­sons who are in­volved with this very large re­spon­si­bil­ity of re­port­ing to the public what tran­spires in these courts that that re­spon­si­bil­ity must be born with a sense of … jus­tice to all,” she said.

Some media out­lets have fallen short in this re­gard, in part by vi­o­lat­ing the court or­der re­strict­ing online com­ments, the judge said, though she ac­knowl­edged that not all jour­nal­ists present were at fault.

“I have no dif­fi­culty in the re­port­ing of what has tran­spired [in court],” she added. “These are crim­i­nal mat­ters and un­less I have in­di­cated that they should be held in cam­era, they are public mat­ters, and the public is en­ti­tled to know what tran­spired.”

How­ever, she said, her re­peated warn­ings about online com­ments, which are of­ten called “blogs” in this ter­ri­tory, ap­par­ently weren’t be­ing shared among jour­nal­ists.

“So I had to be speak­ing to one and then to another, and I thought that it may be pru­dent to have ev­ery­body here present be­fore me at one shot so that I do not have to re­peat my­self; nei­ther does any other court have to re­peat them­selves that it is not ac­cept­able in re­la­tion to the blog­ging — the blog­ging — that you al­low it to con­tinue dur­ing the cur­rency of a trial.”

She also ex­plained the court’s rea­sons for re­strict­ing the com­ments, which she said can im­prop­erly in­flu­ence jurors.

Af­ter a trial is con­cluded, she added, online com­ments about it are per­mit­ted.

The judge added that fu­ture vi­o­la­tions could re­sult in con­tempt-of-court pro­ceed­ings.

“This, quite frankly, Mr. DPP, is go­ing to be my last warn­ing,” she said.

Gary Eleazar, a re­porter from BVI News, asked if com­ments posted on Face­book are af­fected by the re­stric­tion.

“No: That is so­cial media,” the judge re­sponded. “So­cial media — What­sApp, Face­book, In­sta­gram — I can’t con­trol. Those are the in­di­vid­u­als’ per­sonal in­di­ca­tions of their per­sonal opin­ions. What I’m say­ing is that you have con­trol over the blogs that you can put, in terms of the of­fi­cial re­port of ‘This is what hap­pened in court,’ and then you see all the blogs that come af­ter. That is what I’m ask­ing.”

The DPP spoke next, echo­ing many of the judge’s con­cerns. “To be­gin, it must be pointed out that these are not ad­ver­sar­ial pro­ceed­ings,” Mr. Ra­jban­sie said, ex­plain­ing that the jour­nal­ists had been sum­moned be­cause they play an im­por­tant role in re­lat­ing court pro­ceed­ings to the public. Though the DPP com­mended jour­nal­ists who have han­dled their du­ties re­spon­si­bly, he said that oth­ers have not met an ac­cept­able stan­dard. Like Ms. Byer, he sin­gled out BVI News and VINO, show­ing printed copies of ar­ti­cles and read­ing aloud sev­eral online com­ments he said were in­ap­pro­pri­ate or had been posted while tri­als were in progress. The DPP also aired other com­plaints about the two sites and sug­gested that BVI News had re­ported in­for­ma­tion that could have led to the iden­ti­fi­ca­tion of a child in­volved in a court case, an al­le­ga­tion that BVI News re­porter Ho­race Mills later de­nied.

Mr. Ra­jban­sie then quoted from a let­ter he said he re­ceived from VINO owner Ju­lian Wil­lock fol­low­ing a dis­cus­sion with VINO Editor Reuben Stoby, who at­tended Fri­day’s pro­ceed­ing. Mr. Wil­lock’s let­ter, he said, falsely ac­cused him of threat­en­ing to shut down VINO.

“No one said any­thing that we’re go­ing to close down Vir­gin Is­lands News Online,” the DPP said, adding, “And it is a threat that I do not take lightly.”

The DPP also said that VINO had been cited in another court mat­ter and “told to pay $1,500 in com­pen­sa­tion.” He did not pro­vide de­tails but said, “What is in­ter­est­ing, this took place in court and we ex­cluded the public and all other per­sons to pro­tect [VINO] when the dis­cus­sion was tak­ing place, be­cause we did not want other news­pa­pers to sen­sa­tion­alise this is­sue, which then it­self could have been con­tained in the court.”

The DPP then is­sued a strong warn­ing: “Let me say to all of you, and to VINO in par­tic­u­lar, when I is­sue a threat it will be car­ried out. When any­one threat­ens me as the di­rec­tor of public pros­e­cu­tions — per­son­ally or my cham­bers — I will not take it lightly. And rest as­sured I un­der­stand full well con­tempt-of-law pro­ceed­ings, as well as slan­der, defama­tion and li­bel.”

Since VINO was launched in 2010, the news site has re­peat­edly come un­der fire for the qual­ity of its jour­nal­ism and for anony­mous com­ments that it hosts. Last year Mr. Wil­lock was or­dered to pay $20,000 af­ter VINO was suc­cess­fully sued for defama­tion in a claim that fo­cused largely on anony­mous com­ments posted un­der­neath an ar­ti­cle. In spite of such crit­i­cisms, the site has con­tin­ued to main­tain that its cov­er­age is fair and bal­anced, and it has of­ten claimed to be the vic­tim of po­lit­i­cal per­se­cu­tion.

The DPP con­cluded on Fri­day by sug­gest­ing that VI jour­nal­ists form a media as­so­ci­a­tion in or­der to sel­f­reg­u­late their pro­fes­sion. “Be­cause quite frankly there are good re­porters in this room, good ed­i­tors-in-chief, and then there are those who are pulling down your noble pro­fes­sion,” he said, adding, “You have a re­spon­si­bil­ity, and I want to urge all of you to take your re­spon­si­bil­ity se­ri­ously.”

Af­ter the DPP spoke, Mr. Mills of BVI News said he felt “am­bushed” by the pro­ceed­ing. He then re­futed the DPP’s al­le­ga­tion that a BVI News ar­ti­cle could have iden­ti­fied a child in­volved in a re­cent court mat­ter. But the judge ex­plained, “Mr. Mills, we are talk­ing about in­fer­ences that are drawn in sit­u­a­tions where there are deal­ings with chil­dren — both the vic­tim and the ac­cused.”

“I re­ally did not in­tend to speak much longer, but I find that what has oc­curred here in the last hour is highly dis­turb­ing,” said Penn who rep­re­sented Is­land Sun, adding, “I stand now not as a lawyer for the Is­land Sun, per se, but as coun­sel at the bar — and as se­nior coun­sel at the bar.” Af­ter stat­ing that she sup­ports the court’s in­ten­tions and be­lieves that online com­ments need to be con­trolled re­spon­si­bly, the lawyer ex­pressed con­cern about the court pro­ceed­ing. “There are ob­jec­tive prob­lems with this process,” she said, “be­cause what has hap­pened here is that peo­ple have been brought be­fore the court in a crim­i­nal mat­ter. Ir­re­spec­tive of what the DPP says, it is a crim­i­nal pro­ceed­ing brought in the crim­i­nal ju­ris­dic­tion of the court on a sum­mons.”

Though she had not pre­vi­ously met Mr. Mills, she said, she agreed with his de­scrip­tion of the pro­ceed­ing. “He used the word that he has been ‘am­bushed,’ and he is ab­so­lutely cor­rect,” she said. “And I say that as se­nior coun­sel, My Lady; per­sons can­not be called to court, ir­re­spec­tive of who they are or what they do, with­out be­ing told what the na­ture of the com­plaint against them is.

“Part of why I say — and I’m deeply con­vinced — that we’re go­ing down a slip­pery slope is that the rights of the media prop­erly and fairly and ac­cu­rately ex­er­cised can­not be chal­lenged, and I was amazed at what I heard,” she said.

Ms. Penn closed by stress­ing the media’s duty to fol­low the law, re­port re­spon­si­bly, and have “moral fi­bre.”

Mr. Eleazar, of BVI News, asked for fur­ther clar­i­fi­ca­tion on the for­mal sum­mons the jour­nal­ists had re­ceived. The judge re­sponded, “How the court sum­moned the par­ties here was not as in the mat­ter to an­swer any charges against any of you; it was a means of en­sur­ing that you would at­tend by the process of hav­ing been served with a court process.”

Mr. Eleazar asked what would have hap­pened if one of the jour­nal­ists had not an­swered the sum­mons.

“I don’t know what po­si­tion I would have taken, Mr. Eleazar; I’m not go­ing to tell you that,” Ms. Byer re­sponded.

Fi­nally, Ms. Penn asked Ms. Byer how the court would dis­pose of the mat­ter. “There will be no or­der made, Ms. Penn, in this re­gard,” the judge re­sponded. “The par­ties were brought to court, they an­swered the sum­mons. The mat­ter has been dis­posed of. There is no fur­ther need to pro­ceed in this mat­ter.”

High Court Jus­tice Ni­cola Byer and

DPP Wayne Ra­jban­sie.

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