Canadian CJ headlines ‘Courts and the Media: Challenges in the Era of Digital and Social Media’

By MARK PEARSON

Our book – Courts and the Media: Challenges in the Era of Digital and Social Media – edited by Patrick Keyzer, Jane Johnston and me – has been published by Halstead Press. Order details are here. The book was launched by Queensland Chief Justice Paul de Jersey (below) on March 29.

It stems from our symposium Courts and the Media in the Digital Era held on February 12, 2011, keynoting the Chief Justice of Queensland Paul de Jersey, News Limited chief executive John Hartigan (who has since retired) and shadow attorney-general Senator George Brandis.

We have chapters written by several speakers from that symposium as well as contributions from some other experts, including the Canadian Chief Justice Beverley McLachlin’s Supreme Court Oration on ‘Courts and the Media’, delivered in Brisbane on September 15, 2011. We thank Her Honour for agreeing to make it available to us as our opening chapter.

My own chapter looks at the intersection between the courts, the media and mental health and includes several developments that have happened since I presented the paper in February and wrote an article for the Pacific Journalism Review, published in May. (Thanks to research assistants Kiri ten Dolle and Annabelle Cottee for helping make it possible, along with some generous funding under the Australian Government’s Mindframe National Media Initiative!) You can get a sneak preview from my earlier blog.

The convergence of media and technologies have had resounding implications for the justice system, particularly with the advent of blogging and social media such as Facebook and Twitter. This, combined with broader, faster and more portable access to websites with Web 2.0 devices, has challenged traditional conceptions of jurisdiction, open justice and transparency while raising serious definitional questions about journalism and journalists. The release of tranches of documents by Wikileaks and subsequent legal action in recent months served to highlight many of those issues as pundits debated issues of confidentiality, espionage, whistleblowers, freedom of information, international relations, secret hearings, suppression, journalism, public interest and social media in the courtroom.

The papers presented at the Courts and the Media in the Digital Era Symposium and the chapters of this book address those questions from a range of perspectives – judicial, political,  administrative, journalistic, academic, and corporate – with some offering insightful hybrid views of each.

You will find a variety of voices in the chapters, reflecting the background of the authors and the circumstances of their contributions. Some bear the rhetorical hallmarks of keynote addresses, others reflect the meticulous research and documentation of academic scholarship, while some reflect a more conversational tone of a contribution to a conference panel. Such variation happens in such edited volumes, and in many ways it adds to their flavour and appeal.

While all chapters acknowledge the intersection of justice, journalism and new technologies as the focal point of the ‘Courts and the Media in the Digital Era’ theme, some are focussed less on the new media elements. All pay strong attention to the issue of open justice and its interpretations in laws and policy in the 21st century.

McLachlin CJ’s opening chapter explores the relationship between the courts and the media in the modern age by drawing upon the historical and philosophical traditions of open justice and itemising the shared interests of journalism and justice. Her conclusion foreshadowing the challenges posed by the communications revolution lays a suitable foundation for the subsequent articles to explore them in depth.

The keynote address by the Chief Justice of Queensland, the Hon Paul de Jersey, grapples with the competing interests at stake when the news media cover courts and explains several initiatives in his own jurisdiction to balance those interests in the digital era, including establishing free wi-fi in court houses, permission for journalists to tweet proceedings and the uploading of civil judgments and criminal sentencing remarks to the court webpage.

News Limited chief executive John Hartigan (who recently retired) proposed the following four reforms to enhance open justice: allowing cameras in courts for openings and sentencings; real time access to transcripts and court documents; rejection of the current suppression model and removal of take-down orders.

Co-editor Jane Johnston from Bond University surveys the international field to offer examples of the impact of social media on the courts and focuses on some recent Australian examples where tweeting from court has prompted differing judicial outcomes. She also reports on the attitudes of court information officers to social media.

Griffith University’s Jacqui Ewart draws upon her expertise as journalist, researcher and author of Haneef: A Question of Character, to analyse the implications of national security laws for coverage of anti-terror trials and to assess the new dynamic of social media in the mix.

Law academic Daniel Stepniak from the University of Western Australia traces the use of cameras in courtrooms and offers insights into the attitudes of the judiciary to audio-visual technologies in their various forms.

University of Technology, Sydney, law lecturer Geoff Holland illustrates the complex research issues at play when considering the influence of prejudicial publicity upon jurors, offering a comprehensive review of theories and cases.

Bond University legal scholars Elizabeth Greene and Jodie O’Leary apply this in the Web 2.0 environment and call for the introduction of the option of judge alone trials in jurisdictions that do not yet permit them to deal with extreme cases of prejudicial publicity.

Bond University journalism academic and leading ethics text author Roger Patching has kept abreast of the News of the World scandal and assesses the extent to which it has fuelled calls for a new tort of privacy invasion in Australia.

Federal Court director of public information Bruce Phillips traces that court’s use of technology through live broadcasts in the 1990s through live Internet streaming and more recently the use of social media for reportage from some cases.

Criminologists Alyce McGovern and Murray Lee examine the ways Australian police media units have embraced social media and conclude it has offered them a direct channel of communication with the public on a par with their more traditional media liaison.

Former court media officer, journalist and member of the Australian Press Council Prue Innes reviews courts’ use of suppression orders two years after her authorship of Report of the Review of Suppression Orders and the Media Access to Court Documents for Australia’s Right to Know Coalition and makes some other insightful observations about media access to court information.

Finally, academics Geraldine Mackenzie, Caroline Siranovic and Kate Warner from Bond University and the University of Tasmania share findings from their ARC Discovery project researching the association between Australian citizens’ media consumption habits and their level of confidence in the courts and the sentencing process.

Such a work, particularly in print format, could never provide a comprehensive account of the state of the courts-media-technology nexus as it stands today. And neither should it. That relationship is a dynamic, attempting to balance a range of rights and interests of all stakeholders against the important and historic notion of open justice.

While the technologies might change and fresh cases might test the boundaries, this book will have served its purpose if it helps us understand the core principles at stake and if it aids judges, policymakers and journalists as they try to adapt to each innovation and news scenario.

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* Mark Pearson is professor of journalism at Bond University and Australian correspondent for Reporters Without Borders. He tweets from @journlaw and blogs from journlaw.com

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2012

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