An argument for more open courts in the digital era

By MARK PEARSON

My submission in response to the Supreme Court of Queensland’s comprehensive issues paper Electronic Publication of Court Proceedings argues that the advent of digital technologies means the courts should be more open to the public than ever before.

A committee of judges of the Supreme Court released the issues paper in June, seeking views on the potential for the audio-visual recording of court proceedings and possible livestreaming or broadcast of all or part of the proceedings.

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Whatever the outcome of the process, the report stands as an excellent contribution to the literature in the field and a useful resource for students and academics for its comparative and comprehensive coverage of the topic and for the currency of the material.

It backgrounded the fundamental principles of both open justice and the right to a fair trial before considering the potential impact of electronic publication on various personnel, particularly jurors, witnesses and judges. It reported upon international and interstate developments in the field and discussed recent experiences in both Queensland and other jurisdictions where some level of recording or publication has been permitted.

The ultimate outcome of the process will inevitably also be influenced by both human and technical resources available for recording, editing and courtroom management of the logistics.

My own submission was relatively brief and addressed a select few of the issues and suggested one approach for a way forward fully embracing open justice in the digital era.

  1. Changing notion of open justice for the public and the media

The issues paper addressed the principle of open justice  and quite rightly highlights the importance of proceedings being conducted in open court. It portrayed the media’s right to report upon proceedings as “an adjunct of the right to attend court”, using the oft-quoted expression of the media being the “eyes and the ears” of the general public in the courtroom.

While this traditional approach holds true, the advent of the Internet and social media mean that there are now many more “eyes and ears” of the general public witnessing and relaying information about court processes than there were in days of yore. Ordinary citizens, bloggers and ‘citizen journalists’ offer their own versions of courtroom events via microblogs on Facebook and Twitter as well as through extended blogging and commentary media.

Thus I suggested there were two key questions that could help shape the court’s deliberations:

  1. Does modern technology provide a cheap and simple mechanism for streaming ALL court rooms via a single website or interface? and
  2. Should the mainstream news media be privileged in certain situations by being allowed to film in the courtroom and broadcast sections of such footage?

The first question turned the tables on much of the report which seemed preoccupied with reasons for restricting access and publication. My question suggested the default situation should be to allow as much public access to court proceedings as possible so that citizens could ‘virtually’ visit a courtroom just as easily as they might attend physically. It suggested that, just as all citizens might wander randomly into a public court in session in the Supreme Court building, citizens should be able to tune in online to those same proceedings from the comfort and convenience of a remote location. The final point of my submission suggested a system for making this possible. My own view is that recording more generally in society has become ubiquitous and that its potential to impact on judges and potential witnesses would be minimal given a. the extent to which people realise their words and behaviour are now being recorded in all walks of life; and b. the fact that wholesale livestreaming of all courts would be accommodated as a basic procedure – just an accepted facet of what is done there.

My second question positions the mainstream media as a select group with special commercial and public interest needs for providing their audiences with edited footage in cases with a high level of newsworthiness. As explained below, such a level of access can be addressed on a case by case basis and the presiding judge could indeed retain the discretion on the level of access allowed and the conditions of its use.

  1. Concerns over selective reportage

On several occasions the paper expresses concern over the potential for the media’s highly selective use of camera angles, audio and sections of proceedings. I suggest this is the very nature of the news media and the government, the executive and the judiciary have voiced concern at this phenomenon in the centuries since the media first took on the role as the Fourth Estate in a democracy. It is the price for media freedom in systems where editors and news directors (rather than politicians and judges) decide upon the newsworthiness of a story. There are already numerous devices available to the courts to address the potential for sensationalised or inaccurate reporting in the domain of contempt of court (in its sub judice, disobedience and scandalising iterations) and via the loss of the fair and accurate reporting defence to resulting defamation actions. Further, media outlets need to be aware that such privileges might be withdrawn for selected outlets if they are not accompanied by the due level of responsibility detailed by the presiding judge in the granting of such permissions.

  1. Production standards required for mainstream media

While all mainstream media would prefer the highest quality of recorded material, all news media now broadcast both online and on radio and television much more citizen-generated content which is sometimes of the poorest amateur quality. The news priority of the material now takes precedence over the production quality of the audio and vision. Highly blurred and pixellated material now finds its way into even the most expensively produced programs if that is the only actuality available to help tell a compelling story. This means that if the general livestreaming option is the only one available to the media, and if they are allowed to record and rebroadcast it, then they will do so if the material is newsworthy enough.

  1. A relatively cheap and simple system of implementation

This preliminary discussion backgrounds my very simple proposal which I believe would address both the need for open justice and the concerns over the potential for interference with the administration of justice and the opportunity for accused persons to get a fair trial. It is as follows:

  1. Install inexpensive webcams in all courtrooms showing only the judge in the frame.
  2. Livestream all courtrooms using this single camera angle to a designated court website where citizens can access any courtroom at any time.
  3. Feature the kind of alert light found in radio studios positioned prominently inside and outside the courtroom to light with the sign “Court open and broadcasting”.
  4. Install a similar light and sign at the bench so the judge can control whether the recording is on or off (ie, whether the court is open or closed) and personnel are advised accordingly.
  5. Deal with mainstream media requests for special permission to film proceedings on a case by case basis, with the presiding judge determining the conditions attached to any permissions.
  6. Restrictions: As detailed above, my own view is that there are measures available to the courts to address any misreporting or sensationalised reporting based on the livestreamed material. However, if the court were concerned at the potential for the selective recording and rebroadcasting of any of the material it could feature an on-screen warning “© Supreme Court of Queensland: Not to be recorded or rebroadcast without the permission of the presiding judge”.

In short, this simple and relatively inexpensive solution would dispense with the need for editing because the livestreaming control would rest simply with the judge’s decision on whether to close or open the court for the complete trial (or for a given segment).

It would allow a mechanism for justice to be truly ‘open’ – both in the physical courtroom and in the virtual one – with all the ensuing public benefits of education and allowing justice to be seen to be done.

© Mark Pearson 2015

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.

1 Comment

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One response to “An argument for more open courts in the digital era

  1. Pingback: Queensland judicial committee recommends some filming of proceedings and a new court information officer | journlaw

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