Lex Ferenda

Marcel Berlins has a perceptive piece in today’s Guardian about Internet publishing and fair trials. He wonders about the future of the ‘fade factor’ in relation to the publication of pre-trial information (i.e. that material published in year X is unlikely to be a cause for a finding of prejudice in year Y) - if the juror can just Google the defendant, is there much of a difference between a new and an old article that discusses matters not properly before the court?

Berlins mentions that research has been commissioned. Good. I wonder how they will address the question of searchable, open-access news archives vs ‘difficult’ deep-web and subscription sources. Not to mention Wikipedia-type pages (which will keep changing, as opposed to a newspaper!) On the other hand, any notions of fade factor etc have developed in response to previous ‘new media’ (like mass-circulation newspapers); so it’s not entirely a new issue. I have a feeling that they’ll be able to identify an underlying principle. That said, there seems to be a perverse glee in ‘getting around’ publication bans (a fun and less serious example is early publication of Canadian electoral results, as discussed before - or indeed the great Irish one of finding a drink on Good Friday) so that has to be a factor - I can easily imagine a Spartacus or Googlebomb effort to make sure that a juror could find excluded material through a simple search!

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