Monday, 2 December 2013

Bloggers and Spent Convictions

The "Rehabilitation of Offenders Act (Jersey) 2001" in broad terms allows a person to rehabilitate themselves following a criminal conviction. The way it works is described as follows:
"After a given period of time following conviction, a conviction can be regarded as spent. The formula for calculating that period is complex, and can be made more complicated if another offence is committed before any prior convictions are spent. But the general principle involved is simple. People make bad choices, but they should not be forced to live with them forever."
But while that applies to employers, what is the position with regard to bloggers, for example, if the information in question is in the public domain?
The case of G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc. in New Jersey raised this issue where the Supreme Court looked into the difficulties in the "expungement" or "rehabilitation" of convicted criminals on libel and privacy claims.
This was not, in point of fact, a situation which could have originated in Jersey. Even with ROA (Jersey), any criminal conviction has to be declared before an election. In the case of GD, he was a candidate for election to the State Senate, and a flyer (by other campaigners) stated that he was "a DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school."
He brought a libel claim against this statement. Although he had a conviction for drug dealing he argued that because the record of his conviction was "expunged" and his conviction was - as a matter of law - deemed not to have occurred..
However, the New Jersey Supreme Court rejected this argument, holding that the expungement statute does not transmute a once-true fact into a falsehood. While answering a question on an employment form may not legally require you to declare an "expunged" or "spent" conviction, the fact of the matter was that the conviction existed, and libel dealt with actual facts.
The argument was that the case was public, and hence he had no reasonable expectation of privacy in the expunged conviction:
"G.D. pled guilty and was sentenced in a courtroom that was open to the public. The judgment of conviction in G.D.'s case was a court record available to the public for thirteen years before the entry of the expungement order. During all those years, the information concerning G.D.'s conviction was available to commercial data companies as well as to newspapers and other public organizations. The reality is that criminal-conviction information is disseminated well before the entry of an expungement order."
The Court concluded that:
"This is not a case in which a defendant peered through closed curtains into a bedroom or wrongly acquired a personal diary and made highly private information available to the public. A person has a reasonable expectation of privacy in the sanctity of his or her bedroom and personal diary from peeping toms intent on making private facts titillating fodder for the public. This case, however, deals with public acts, a guilty plea and sentence in a public courtroom, and public facts, court records available to the public over many years".
In the UK this kind of scenario is dealt with by Section 8 of the Rehabilitation of Offenders Act, which means that if a publisher - or blogger - says, of a rehabilitated person, that he or she is a convicted criminal, then any resulting libel action can be defended by proving the spent conviction. The exception is where it can be proven that publication was made with malice which must mean a dominant motive to injure the claimant. The establishment of motive is fraught with difficulties, and it seems very unlikely that this would be easily established in practice.
A case came up dealing with this - Mosley v News Group Newspapers Ltd in 2008, where Justice Eady ruled that:
"The extent to which material is truly "in the public domain" will ultimately depend upon the particular facts before the Court. In Attorney-General v. Greater Manchester Newspapers Ltd [2001] EWHC 530 (QB) the test was applied as to whether certain information was "realistically" accessible to members of the public or only "in theory"."
The question here is not whether the convictions are pronounced in public courtrooms but how many members of the public are present, and whether or not the story is reported widely or at all in the press. Clearly if it has been reported in the press, it is "realistically" accessible.
I tracked down at the library, the JEP reporting of the case heard by Richard Falle as Acting Magistrate in the case of HG, although only the bare bones are present. That is "realistically accessible". If it is on the Legal Information Website, as the Royal Court cases are under "unreported judgements", and easily searchable, that must also be deemed to be "realistically accessible", and will have been trawled by search engines.
Hugh Tomlinson QC comments that:
"In practice, many convictions are pronounced in public courtrooms where few, if any, members of the public are present and are not reported widely (or often, at all) in the press.  In contrast to the New Jersey position, they are not available on public websites.   It could, therefore, be argued that an old "spent" conviction does, in fact, attract a "reasonable expectation of privacy" as it is not "realistically accessible to members of the public".
"Secondly, it might be argued that as a matter of public policy (or perhaps the positive obligations of the State under Article 8), a "spent" conviction should be treated as attracting a "reasonable expectation of privacy" - the expectation would be "reasonable" precisely because the conviction is spent."
"Neither of these arguments are straightforward.  In any event, if "misuse of private information" was being invoked, the publication of spent convictions could, potentially, be justified as a matter of public interest."
The National Association of Reformed Offenders notes that:
"The situation is also complicated by online records of convictions. Once a conviction is online, and so in the public domain, the media can quote it in their outlets since they are not 'revealing' anything new, just stating a known fact. Nobody's data is being invaded if past news sources are quoted and privacy rights are not being compromised. This seems to be true even in the case of 'spent' convictions. If the conviction is on record, it is likely that in certain situations the media are able to justify the ability to publish these details even though it is spent. "


James said...

The question here is not whether the convictions are pronounced in public courtrooms but how many members of the public are present, and whether or not the story is reported widely or at all in the press. Clearly if it has been reported in the press, it is "realistically" accessible.

Actually, I'm not sure that's true. For the example you quote (HG) you had a location and a date to fix on: if you have either or neither, the ability for the public to track criminal convictions becomes very much harder. (In Jersey the date is more important; elsewhere, location comes more into play).

TonyTheProf said...

You raise an interesting point. Before Korris, the Magistrate’s court details were really only “theoretically available” to use Justice Eady’s terms, but after Korris, they were pinned down and transformed to “actually available” because anyone could very easily find the JEP archive at the library.

Which shows, I think, how Eady’s definitions are fluid, what is “theory” may become “actual” as information around it spills out.

But I do admire his judgement. I think it is a brilliantly commonsense approach to recorded data.