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Say Bob mounts a civil lawsuit against Rob. Bob acts pro se. The case takes ages.

Bob considers telling the whole world about the case for a number of potential benefits (media coverage, supporters, raising public interest so that the court gives the case a higher priority, naming & shaming Rob etc.). So Bob creates a blog where he frankly opens his cards, publishes the court documents, speculates about what is going on etc.

Provided that none of the court documents are explicitly prohibited from publication, does Bob commit any wrongdoing?

(Any English-centric jurisdiction).

  • Does 'explicitly' mean in this particular case? Some classes of document are private in all cases (i.e. implicitly); it would be unwise to publish any of those. – Tim Lymington supports Monica Jul 4 at 9:11
  • @TimLymington "explicitly" means not only in this particular case but particular document in this case. Courts do sometimes place publication prohibitions on certain decisions which makes me assume that where such prohibition has not been applied the document can be published. What classes of documents are private in all cases? – Greendrake Jul 4 at 9:45
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There are three categories of document in a court file (which is likely to be electronic these days); public, private, and other. In England and Wales this is covered in rule 5.4 of the CPR which says that a statement of case (Claim Form, Defence, etc.) or an order or judgement made in open court can be obtained by anyone on payment of the relevant fee (which of course is not necessary if the documents are published by someone else). Some documents, mostly relating to mediation, can never be made public. Other documents are covered by the blanket rule "A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person", which allows the court itself to draw the line between open justice and breach of privacy which will discourage frankness in future cases. So Bob's "publishing the court documents" without permission is a breach of the rules and possibly a contempt of court.

Assuming "opening his cards" means setting out his own case and accepting that he may no longer change his arguments according to what happens in Court, I see nothing wrong with it. But "speculating about what is going on" may well breach the sub judice rule. If and when a jury is empanelled to try this case, they will be expected (indeed sworn) to make a decision based solely on what they hear in court, where the judge can disallow improper arguments, exclude 'evidence' that is unsupported, and so on. If Bob (who does not even have a lawyer's advice) publishes his guesses in a way that may affect a future juror, he has deliberately introduced bias and may be sanctioned or fined. He has the same rights in this regard as any newspaper; but they usually keep expensive legal teams to say what they can and cannot publish without prejudicing a trial.

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In the United States Bob would have a protected right, under the US Federal First Amendment, to discuss his case publicly, give his side of the matter, and speculate on things he does not know for certain.

The court can order that particular documents be kept confidential or "under seal". But unless it makes a specific order to this effect, Bob is free to reproduce them if he so chooses.

The court can order the parties, and non-parties such as newspapers, to refrain for publishing accounts of the case, ot to restrict such accounts in various ways, if there is reason to believe that otherwise a jury might be biased and a fair trail impossible. But such orders must be limited to the degree of restriction required for such a purpose. Such orders have been challenged in the past, in several cases by the press, and higher courts have overturned them when they were judged too broad. In any case the court must make a specific order (sometimes informally called a "gag order"). No such rule is in place by default in the absence of a specific order. If fairness can be preserved by locating the trial in a different area, or by careful jury selection, the court must generally do that rather than restrict speech.

Bob would be liable if he committed defamation on such a blog. If Bob makes statements of fact that are false, and that damage the reputation of someone, that person may be able to sue for defamation. Depending on the circumstances, such a suit might have to include evidence that Bob knew the statements were false, or that Bob was recklessly indifferent to their truth. This i9s known in US law as "actual malice".

Note the accurately reporting the content of court proceedings, even if people make allegedly false statements in testimony or to the court, is not defamation.

  • This answer is pretty much correct, as this has already happened almost exactly as the OP outlined. It's still online for the most part here: taubmansucks.com - WARNING: You will need HOURS if you are going to read that entire site. He posted every motion and every ruling regarding the case along with his own notes, and misc items. – mark b Jul 8 at 22:21

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