Good morning. Today an inquest will open into the deaths of five of the babies that Lucy Letby was found guilty of murdering, marking yet another legal milestone in a case that has been difficult for journalists to report on – not just because of the trauma involved, but because readers often see speculation online that the media cannot legally discuss.
In England and Wales the laws around contempt of court, and instructions from the courts to preserve the anonymity of victims and their parents, have made the reporting fraught in a way that is not mirrored in the US. Indeed, while the legal process continued, UK users were for a period blocked from accessing a 13,000-word article about the case in The New Yorker magazine – throwing into sharp relief the legal constraints on UK reporting.
For this newsletter, I spoke to David Banks, a media lawyer and former journalist, about what the Letby case tells us about the legal framework governing reporting – and how that framework is increasingly colliding with a social media ecosystem that appears to operate by very different rules.
Five big stories
Epstein-Mandelson scandal | The Metropolitan police have formally launched a criminal investigation into allegations Peter Mandelson leaked Downing Street emails and market sensitive information to child sex offender Jeffrey Epstein.
Ukraine | Volodymyr Zelenskyy accused Russia of violating an agreement with Donald Trump to hold off from attacking Ukraine’s energy systems in the depths of a freezing winter, as Vladimir Putin’s forces carried out large-scale airstrikes on Kyiv.
Grok AI | Elon Musk’s X and xAI companies are under formal investigation by the UK’s data protection watchdog after the Grok AI tool produced indecent deepfakes without people’s consent.
UK news | As much as half of some British beaches’ coarse sediments consist of human-made materials such as brick, concrete, glass and industrial waste, a study has found.
Prisons | The most dangerous extremist prisoners in England and Wales will be held in “supermax-style units” similar to those used in US jails, David Lammy has told MPs.
In depth: ‘The law was never designed for millions of individual users posting instantly’
That New Yorker article about the Lucy Letby trial was a particularly stark example of a problem readers increasingly encounter, prompting the question: “If I can see this being discussed, analysed and speculated about online, why isn’t it being reported by mainstream media?”
That information gap, Banks argues, is where mistrust, conspiracy and disinformation can thrive – particularly in emotionally charged cases. But in many instances, it exists not because journalists are unwilling to report, but because they are legally prohibited from doing so.
***
A line journalists cannot cross
Historically, the offence of contempt of court was a broad and rather woolly common-law principle: nothing should be published that might prejudice a trial that was “pending or imminent”. That vagueness came under pressure in the 1960s when newspapers attempted to investigate the thalidomide scandal while civil cases were still being contemplated.
Banks explains that those attempts were repeatedly shut down by the courts, even though no case had yet been heard. The issue eventually reached the European court of human rights, which ruled that the old common-law approach was incompatible with freedom of expression. The result, in 1981, was the Contempt of Court Act, intended to strike a balance between free speech and the right to a fair trial.
“What the law is trying to prevent,” Banks says, “is material that creates a substantial risk of serious prejudice. You’re not gagged from reporting that something has happened, or from covering proceedings – but you cannot publish material that goes to the substance of what the jury is going to be asked to decide.”
That distinction matters. Journalists can describe what happens in court, provide background, and even include colour from the courtroom. What they cannot do is speculate on motive, publish disputed evidence, or reveal previous convictions – material that might tilt a jury before it has heard the case.
“In the US,” Banks notes, “previous convictions would be published without a second thought. Here, jurors are not supposed to know them, because they are asked to decide one thing only: did this person commit this offence?”
***
When social media breaks the system
Those rules, however, were drafted for a media landscape that no longer exists.
Examples such as the Southport stabbings and the Liverpool victory parade car-ramming attack show how quickly speculation and misinformation about suspects’ motives, identities and backgrounds can spread online, while established media organisations are still checking what they can legally say.
“The law was built to restrain a relatively small number of powerful publishers,” Banks says. “It was never designed to cope with millions of individual users posting instantly, often from outside the UK.”
Traditional media organisations are visible, reachable and sanctionable. Social media users are not – or at least not in any consistent way. Attempts to prosecute individual posters can look arbitrary or vindictive, and risk feeding a narrative in which they are cast as “free speech martyrs”. Tommy Robinson was jailed for 18 months after admitting contempt of court, and previously claimed cases against him are “politically motivated”.
***
Does the law need to change?
We actually know very little about the influence of media coverage on juries. It is a criminal offence for jurors to disclose what happened in the jury room, even after a verdict has been reached, which makes meaningful research into jury behaviour extremely difficult.
“There’s an assumption that publicity is prejudicial,” Banks says, “but we don’t really know how jurors process information in high-profile cases – because we’re not allowed to ask them.”
We do know that breaches happen. One juror was jailed after Googling a defendant and printing out the results for fellow jurors – a breach that was only discovered because a print-out was found by court staff. Banks says it would be naive to assume it was an isolated incident.
“It’s inconceivable that others aren’t doing the same thing,” he says. “They are maybe just better at hiding their tracks.”
The US takes a different approach. First amendment protections mean publications cannot be restrained, and juries are largely trusted to disregard what they may have seen or read. But that trust is underpinned by a far more rigorous jury-selection process, with potential jurors questioned in detail about their beliefs, experiences and prior knowledge of a case – something that does not happen to anything like the same extent in England and Wales.
***
Privacy law – an increasing complication
Alongside contempt of court, privacy law has increasingly reshaped what journalists can report.
Cliff Richard won a landmark case against the BBC after the broadcaster filmed a police search of his home. The police were investigating allegations of sexual assault but Richard was never charged with any offence and has always denied any wrongdoing. Separately, an unnamed banker successfully sued after a publisher reported the mere existence of a regulatory investigation into their affairs. Both cases had a chilling effect on reporting.
Banks says that even an arrest is no longer automatically reportable.
“If someone is arrested in public – at a protest, for example – there’s no expectation of privacy,” he says. “But if police turn up at your door at six in the morning and no one sees it, that’s now treated as a private event.”
The attempt to balance rights is clear. An allegation can be career-destroying, even if unproven. But historically, reporting accusations has also served a public and investigative function, enabling other victims to come forward.
That dynamic was seen clearly in the case of ex-BBC broadcaster, Stuart Hall, whose initial arrest led to a cascade of further allegations and convictions. He was convicted of indecently assaulting 13 girls, one as young as nine, between 1967 and 1985, having made public denunciations of his accusers before the trial.
Privacy has also shaped reporting on Letby. Courts ordered that victims and their parents remain anonymous, and journalists covering the Thirlwall inquiry had to be accredited, and watch a delayed video feed designed to stop them accidentally disclosing any identifying details.
***
The ever present spectre of libel
Libel law remains another powerful constraint.
It still amazes me that in the 1950s, Liberace successfully sued the Daily Mirror for implying that he might be – career-ruinously at the time – homosexual. He never came out publicly, though his relationship with Scott Thorson was the basis for the 2013 movie Behind the Candelabra.
What astonishes is not that Liberace may have misled the court, but that the Mirror chose to describe him as “a deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother love” – and then doubled down on it, defending the report in court rather than issuing an apology.
When it comes to libel, deep pockets matter too. Before he was sanctioned by the UK government, writing about Roman Abramovich’s ties to Vladimir Putin often prompted swift and expensive legal threats. After Russia’s full-scale invasion of Ukraine, Abramovich was among those selected by Putin to attend peace talks in Istanbul.
Banks notes that the rise of “no win, no fee” arrangements has widened the pool of potential libel claimants, increasing the legal risk around contentious reporting. But that doesn’t stop reporters when an organisation has a sound basis for making claims – the Guardian recently successfully defended a potentially costly libel action by the actor Noel Clarke.
***
Journalists must navigate an evolving legal framework
The Guardian’s legal team runs regular refresher sessions on media law – the kind of training that we are able to have partly because of the unique way we are funded. People making regular contributions or one-off donations to the Guardian aren’t just supporting our journalists, but the people who allow the journalism to happen.
Up to this point in my conversation with Banks I was feeling quietly pleased with myself: nothing he’d said had come as a surprise. “You have to carry all of this in your head,” Banks says. “Contempt, libel, privacy, data protection, youth anonymity, sexual-offence reporting – the list only gets longer.”
Then he threw me a curveball, asking me how the Education Act 2011 applies to my job.
My wild stab was that it applied to the anonymity of children on school premises, but the act actually makes it illegal to name a teacher accused of abusing a pupil until proceedings reach a defined stage. Courts and police will not remind journalists of this restriction – it is simply something they are expected to know.
Banks points out that the legal bible for hacks – McNae’s Essential Law for Journalists – was about 200 pages long when he started training. The latest edition is more than 600 pages.
What can look like hesitation, silence or timidity from the press on some of the biggest and most sensational stories doing the rounds on social media is often something else entirely: journalists navigating a dense, evolving legal framework that does not apply equally to everyone posting online.
What else we’ve been reading
As Peter Mandelson’s political implosion pulls focus, an impassioned Marina Hyde asks us to keep our eyes fixed on the network of powerful men who enabled Epstein. Lucinda Everett, newsletters team
“Pie and mash bloggers can also be a little bit doctrinaire” is one of the surprising discoveries in this paean to London’s endangered traditional cuisine from Tim Dowling. Martin
Bought by celebrities, with some costing over £30,000 – we’re not talking about designer watches but personal protection dogs. Elle Hunt’s fascinating piece explores this growing market. Lucinda
We are so inured to widespread advertising and betting shops on the high street in the UK that it is engaging to read this Harper’s magazine take on the app-fuelled gambling problem in the US as a novel issue to be tackled. Martin
Guardian readers shared their greatest ever TV moments, including Mike, who reminded me of the Come Dine With Me episode in which Peter Marsh threw a wobbly about losing to his competitor and told her, “You have all the grace of a reversing dump truck without any tyres on.” Lucinda
Sport
Cricket | England beat Sri Lanka in the third and final Twenty20 international by just 12 runs.
Football | The Premier League transfer window has now closed and we have analysed what the moves mean for each club.
Winter Olympics | Lindsey Vonn said she is “confident” she can compete in the downhill despite revealing she has been managing a ruptured ACL after a crash last week raised fresh doubts over her participation.
The front pages
“Met investigation into Mandelson over alleged Epstein email leaks” is top story at the Guardian. The Mirror simply has “Inexcusable”, in reference to the latest Peter Mandelson revelations, and the Mail says “Evidence that damns Labour’s Dark Lord”. The FT leads with “Met launches criminal inquiry into Mandelson’s dealings with Epstein”, the Telegraph says “Brown accuses No10 of cover-up” and the i paper has “Police investigate Mandelson after No 10 hands over Epstein dossier”. The Times splashes on “Mandelson facing full criminal investigation” and the Sun runs “Princes of darkness” in reference to Andrew and the former cabinet minister. Mandelson has said none of the recently released Epstein files “indicate wrongdoing or misdemeanour on my part”.
Today in Focus
The people betting on catastrophic world events
Prediction markets allow you to put money on everything from the US attacking Iran to Jesus returning. Saahil Desai explains their dizzying rise.
Cartoon of the day | Ben Jennings
The Upside
A bit of good news to remind you that the world’s not all bad
Thirteen-year-old Austin Appelbee said he had tried to focus on the “happiest things” in his life to stay positive as he became an unexpected hero off the coast of Western Australia. After strong winds dragged his mother and two younger siblings out to sea near Quindalup, Austin tried to paddle back for help – but his kayak took on water. Undeterred, he swam roughly 4km through rough seas for nearly four hours.
“I thought I saw something in the water and I was really scared,” he told national broadcaster ABC. “I was just thinking in my head I was going to make it through. I was very puffed out, but I couldn’t feel how tired I was. Finally I just made it to shore and I hit the bottom of the beach and I just collapsed and then after that, I had to sprint two kilometres to get to the phone.”
A volunteer marine rescue vessel was directed to his family’s location after his call, and all three were successfully rescued.
Sign up here for a weekly roundup of The Upside, sent to you every Sunday
Bored at work?
And finally, the Guardian’s puzzles are here to keep you entertained throughout the day. Until tomorrow.
