Media summoned to court over online comments
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.