Tag Archives: Fourth Estate

The main national security laws affecting journalists and sources

By MARK PEARSON

[with research assistance from Virginia Leighton-Jackson]

Among more than 50 national security laws and amendments passed in Australia since 9/11, these four stand out as presenting the greatest threat to journalists …

ASIOActScreenshot

  1. ASIO Act 1979

Section 25A focuses on ASIO powers and access to computer networks, with one warrant now covering an entire computer network using third party computers to access target systems.

Section 34 gives ASIO powers to seek ‘questioning’ warrants and ‘questioning and detention’ warrants (detention for up to seven days) with five years’ jail possible for any revelation of the existence of the warrant itself or of any operation related to the warrant for up to two years after the warrant has expired. There are no public interest or media exemptions to the requirement, although disclosures of operational information by anyone other than the subject of a warrant or their lawyer requires the discloser to have shown ‘recklessness’ (s. 34ZS (3)).

Section 35P provides for up to five years in jail for ‘unauthorised’ disclosure of information related to a ‘special intelligence operation’ – and up to 10 years if the disclosure ‘endangers the health or safety’ of anyone or will ‘prejudice the effective conduct of a special intelligence operation’. Amendments partially exempting ‘outsiders’ (journalists) were proposed in 2016, but grave concerns remained over the impacts on journalists for ‘reckless’ disclosure that might endanger safety and jeopardise an operation and the implications for their sources.

Section 92 provides for 10 years’ imprisonment for anyone who identifies an ASIO officer or affiliate (or anyone connected with them) other than any who have been identified in Parliament (such as the director-general). Former ASIO employees and affiliates can be identified if they have consented in writing or have generally made that fact be known.

  1. Crimes Act 1914 (Cth)

Section 3ZQT makes it an offence to disclose the fact that someone has been given notice by the Australian Federal Police (AFP) to produce documents related to a serious terrorism offence. Journalists could face up to two years in prison for doing so.

  1. Telecommunications (Interception and Access) Act 1979

After amendments in 2015, the Act requires telecommunications providers to retain customers’ phone and computer metadata for two years so they can be accessed by criminal law enforcement agencies (State and Commonwealth) on the issue of a warrant. Information required to be stored includes: subscriber/ account information, the source and destination of a communication, the date, time and duration of a communication or connection to a service. A ‘journalist information warrant’ scheme was designed to prohibit the disclosure of journalists’ confidential sources without special precautions. These require approval of the Minister, who may act on the advice of a ‘public interest advocate’, though the processes are secret and disclosure of the details of any warrant for telecommunications data can incur imprisonment for two years.

  1. National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (‘NSI’)

National security has long been cited as one of the exceptions to the principle of open justice, but new laws give judges and magistrates more reason to close a court in a terrorism trial. The NSI Act allows for evidence to be suppressed in court hearings if it contains disclosures prejudicial to national security. Part 3 of the Act allows prosecutors and courts to use national security information in criminal proceedings while preventing the broader disclosure of such information, sometimes even to the defendant. Section 29 gives courts the power to decide whether to close the court for such matters.

Other laws to consider when covering a national security story:

Discrimination and vilification laws

Laws apply at state, territory and Commonwealth levels prohibiting racial and religious discrimination and the vilification of people because of their race, religion, or other factors. They vary in their scope and application, with debate over whether the law against offensive behaviour because of race, colour or national or ethnic origin in Section 18C the Racial Discrimination Act (Clth) would apply to discriminatory media coverage of Muslims. All media codes of practice and ethical codes counsel against discriminatory or vilifying coverage. Social media comment moderation presents special challenges.

Defamation

If you are about to publish something damaging to someone’s reputation, ensure you work carefully within one of the main defences – truth (evidence to prove both the facts and their defamatory meaning), honest opinion / fair comment (based on true provable facts on a matter of legitimate public interest), or fair report (a fair and accurate report of a court case, parliament or another protected public occasion or document).

Contempt of court

The sub judice period (limiting prejudicial coverage about a suspect) starts from the moment someone has been arrested or charged. From that instant you should take legal advice before publishing anything other than what has been stated in open court, with special care to avoid any material giving an assumption of guilt (or even innocence), visual identification of the accused if their identification might be at issue, witness accounts, character background, confessions or prior charges or convictions. You can also face contempt charges over refusing to reveal a source or provide your data or notes when ordered to do so, thus techniques for source protection are paramount.

Suppression orders

Courts have special powers to issue suppression orders in national security cases. These might prohibit identification of certain people, restrict coverage of certain parts of a hearing, or even ban coverage of the total proceedings. Reporters and bloggers have been fined and jailed for breaching such suppression orders.

Sources:

Australian Human Rights Commission 2008, A Human Rights Guide to Australia’s Counter-Terrorism Laws, AHRC, Sydney, <www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws>.

Evershed, N., Safi, M., 19.10.2015, “All of Australia’s National Security Changes since 9/11 in a Timeline”, The Guardian Australia, available: http://www.theguardian.com/australia-news/ng-interactive/2015/oct/19/all-of-australias-national-security-changes-since-911-in-a-timeline

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© Mark Pearson 2016

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.

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Journalist Peter Greste explains why it is important to cover Islam ethically

By MARK PEARSON

Australian journalist Peter Greste – released last year after 400 days in an Egyptian jail – has outlined why it is so important for journalists to be fair and accurate in their coverage of Islam and Muslim communities.

I interviewed Greste for our Reporting Islam project on the eve of him receiving an Honorary Doctorate from Griffith University for his service to journalism and delivering the annual Griffith Lecture at the Queensland Conservatorium in Brisbane last December.

Greste started reporting on the Islamic world in 1995 as Kabul correspondent for the BBC.

“I think it is absolutely vital that journalists anywhere understand as much as they can about Muslims and the Islamic world largely because when we talk about that world we speak about it as if it is in the singular when in fact it isn’t,” Greste said.

“It’s an incredibly complex, multifaceted group of individuals, of sects, of smaller schools of thought.

“The greatest danger is that we conflate everything into one.

“We’ve got to be very careful to understand the subtleties and nuances of the Islamic world and make sure we avoid that same mistake.”

The interview will appear as part of a set of research-based resources colleague Associate Professor Jacqui Ewart and I are developing with our team as part of our Commonwealth-funded Reporting Islam project.

The project is national in its ambit, funded under a competitive grants scheme, facilitated by the Attorney General’s Department and managed by the Queensland Police Service who have contracted us to undertake the work as independent researchers.
Stage 1 of the project was conducted over the 2014-2015 financial year involving a review of the literature on news media coverage of Islam and Muslim people, case studies of media reportage across media types at national and community levels, interviews with experts in the field, distillation of international studies to develop a schema for assessing reportage against world best practice in the area, and a compilation of a report on these findings with recommendations for the development of a suite of resources and training programs.

We are now in Stage 2 of the project (2015-2016) which requires the development and trial of a suite of research-based training and education resources for Australian media practitioners and students to encourage more mindful reporting of Muslims and the Islamic faith.

Credits:

Camera: Ashil Ranpara, Griffith University School of Humanities, Languages and Social Science

Production: Henry Cook, Griffith Learning Futures

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality; and on journlaw.com from November 13, 2014 titled: International studies point to best practice for reporting Islam and stories involving Muslims.

© Mark Pearson 2016

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.

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Freed journalist Peter Greste gets honorary doctorate then calls for free speech in the age of terror

By MARK PEARSON

The Australian journalist jailed for 400 days in Egypt called for greater freedom for the media during the war on terror after being awarded an honorary doctorate by Griffith University tonight (December 4).

Journalist Peter Greste receives his honorary doctorate at Griffith University

Journalist Peter Greste receives his honorary doctorate at Griffith University

Greste received an Honorary Doctorate from Griffith University for his service to journalism before delivering the annual Griffith Lecture at the Queensland Conservatorium in South Bank Brisbane.

His arrest with Al Jazeera colleagues, Mohamed Fahmy and Baher Mohamed, by Egyptian authorities on false terrorism charges, triggered international demands for their release from 2013 to 2015.

“If I’d known it was this easy to get a doctorate I would have been arrested years ago,” he joked. “It’s a great honour to receive this award. I take it as a mark of recognition, not just for what we went through but also for what it represents…for those 400 days of prison.’

“We fought hard for our own freedom, but I think it’s important that people also see the bigger picture of due process and freedom of speech.

“I’m being recognised more for the things we came to represent, than anything that I’ve done.”

He argued large parts of the media had given up on their public responsibility to keep the public informed with fair and accurate reporting. The war on terror was a battle of ideas and journalists were active participants.

The media should be properly be part of a functioning democracy in its role as the fourth estate, checking the functioning on the other arms of government.

“In the war of terror we seem to be losing sight of that key idea,” he said. “Governments the world over are using that ‘t’ word to clamp down on those freedoms.”

He gave recent examples from other countries of journalists being arrested on trumped-up terror charges just as he and his two colleagues had been in Egypt.

Australians should not feel smug because of legislation introduced in recent years targeting those disclosing special intelligence operations, the Foreign Fighters Bill and metadata retention laws.

These restricted the reporting on important events, the main story of the era about international terrorism, and seriously damaged the confidentiality of journalists’ sources.

“It makes confidential whistleblowing almost impossible without risking a prison term,” he said.

“Each has an effect on journalists being able to do the job the public demands of us.”

However, he criticised news media organisations and journalists for not being proactive enough in fighting the introduction of such laws.

“We the media have become increasingly slack in challenging and questioning governments,” he said.

He said journalists should not accept the rhetoric of governments engaged in the war on terror. Rather, questioning that misuse of language would be “one of the most patriotic things to do”.

“Panicked and hyped up language” played into the hands of Islamic State, he said.

“We the media have a responsibility to uphold our end of the bargain as well.”

He said the #FreeAJStaff hashtag calling for the release of him and his colleagues attracted billions of supporters and indicated a high level of public belief that journalism was fundamental to democracy.

During his 400-day detention in an Egyptian prison he studied international relations with Griffith University.

Greste turned 50 this week. He grew up in Brisbane and has reported on political events all over the world. As a correspondent, between 1991 and 1995, he reported from many locations including London, Bosnia and South Africa where he worked with Reuters, CNN, WTN and the BBC.

Following the September 11, 2001 attacks, he returned to Afghanistan to cover the war there. In 2011, he received a prestigious Peabody Award for his BBC documentary Somalia: Land of Anarchy. In December 2013, his employer Al Jazeera sent him from his base in Nairobi to Cairo to cover the bureau for three weeks. It was then he was arrested. 

In June 2014, after more than six months in Cairo’s infamous Tora Prison, a court found Greste and his colleagues guilty and sentenced them to seven years imprisonment.

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O'Neill.

Peter Greste with his Griffith lecturers Dr Dan Halvorson and Professor Andrew O’Neill. Photo: Michael Cranfield

He said presenting the Griffith Lecture on December 4 was a way of validating what he and his colleagues went through retrospectively. “It’s a way of applying meaning to what we went through. Those 400 days weren’t wasted.

“I learned a lot about myself in prison but that time has also given me the credibility to talk about those issues around press freedom. I feel a responsibility to talk about these issues, partly because so many of my friends, so many journalists, fought so hard for me, that’s why people backed us.”

While his colleagues Mohamed Fahmy and Baher Mohamed were pardoned by the Egyptian president Abdel Fattah el-Sisi in September, Mr Greste still carries a criminal conviction and an outstanding prison sentence which his legal team is fighting.

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© 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.

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Dangerous journalism – new threats to journalism in the Middle East: @MartinChulov #jeraa2015

By MARK PEARSON

Almost every nation in the Middle East has the surveillance capability rivaling that of the Five Eyes group of countries, Guardian Middle East correspondent Martin Chulov (@MartinChulov) told the Journalism Education and Research Association of Australia 40th anniversary conference in Bathurst today (November 30).

The Guardian's Martin Chulov addressing #jeraa15

The Guardian‘s Martin Chulov addressing #jeraa2015

“The digital dragnet is very much a tool of persecution,” he said.

He explained how the Internet and social media in the region had shifted from communication forms of change and liberation to tools of suppression.

“Regimes simply ended up doing social media better than the young activists in the region,” he said.

This presented enormous risks to journalists and their sources.

He said journalists now faced risks they had not previously when they were viewed as non-combatants.

“We can no longer afford to be naïve,” he said.

“I’ve often found myself being in a situation where you don’t have the access of your organisation and are relying on your wits.

“We have to be very careful in calculating when to push forward and when to go back.”

Chulov said propaganda issued by Middle Eastern states was also a major risk to truth-telling about the region.

“There are far too many journalists in the region – even veteran correspondents – whose work is no more than dogma,” he said.

“I’ve lost count of the number of young reporters who have told me how disillusioned they have become with journalists who were once their heroes.

“Conflict reporting is not simply about muddying the waters. We should never be afraid of fact, no matter where it may lead us.”

Source protection had become a major issue. He said one of his sources was a senior figure in Islamic State.

“There has been no digital communication at all. We have to beware of street cameras and any digital communication at all.

“Every time I do go to see him I have to wonder whether it is going to be the last time for him and potentially the last time for me.

“Of course shrouding ourselves in secrecy does nothing to dispel the notion we are not spies in the first place.

“I’m on the bad boy list but I haven’t been hit so far. But I do try to ensure not everything I try to transmit is not secure.” This avoids a detectable regime.

Journalists also faced attacks on their reputations.

“If truth be told, it sometimes works,” he said.

“All of us who have covered the region for a living have regularly woken up to Twitter feeds full of bile.”

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© 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.

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UNESCO study by @julieposetti uses research to shed light on source protection in the surveillance era

 

By MARK PEARSON

UNESCO’s flagship publication World Trends in Freedom of Expression and Media Development was launched in Paris, London and New York this week, as part of events marking the International Day to End Impunity For Crimes Against Journalists.

SOURCES BOOK COVERIt features an important chapter highlighting 13 key recommendations from a global study on the protection of journalism sources in the digital age – ably chaired and written by University of Wollongong journalism educator Julie Posetti during her World Editors Forum/WAN-IFRA Research Fellowship in 2014-2015.

As the World Trends publication explains, the ‘Protecting Journalism Sources in the Digital Age’ study draws on research covering 121 UNESCO Member States, updating an earlier study of these countries by the NGO Privacy International in 2007.

The chapter shows how legal frameworks that support protection of journalistic sources, at international, regional and national levels, have come under substantial strain since then.

“They are increasingly at risk of erosion, restriction and compromise,” the report notes.

“This is a trend that signifies a direct challenge to the established universal human rights of freedom of expression and privacy, and one that constitutes a particular threat to the sustainability of investigative journalism.

“A recommendation for consideration from this research is the proposal of an 11-point research tool for assessing the effectiveness of legal source protection frameworks in the digital age.”

The Posetti study draws on surveys and long form interviews involving nearly 200 international experts from the fields of law, journalism, digital communications and civil society organisations.

Academics from Australia (Posetti and UoW colleague Marcus O’Donnell), Brazil and China contributed to the study, along with 11 research assistants from a range of countries.

I was honoured to serve on the eight-member international advisory panel. Other advisory panellists were: Julie Reid, Media Studies Senior Lecturer, Department of Communication Science, UNISA (University of South Africa); Lillian Nalwoga, President, Internet Society’s Uganda Chapter; Policy Officer, Collaboration on International ICT Policy in East and Southern Africa (CIPESA); Dan Gillmor, Director of the Knight Center for Digital Media Entrepreneurship at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication; Prisca Orsonneau, Lawyer at the Paris Bar, specializing in Media Law and Human Rights; Chair, Reporters Without Borders Legal Committee; Gayathry Venkiteswaran, Executive Director, Southeast Asian Press Alliance; Mario Calabresi, Editor-in-Chief, La Stampa; and Mishi Choudhary, Legal Director, Software Freedom Law Centre and SFLC.in.

Julie Posetti advises the full study will be published by UNESCO early next year but meanwhile she has blogged about the chapter in the World Trends Report here: http://blog.wan-ifra.org/node/16301. However, she has supplied these  13 recommendations and findings:

1. 84 UNESCO Member States out of 121 studied (69 per cent) for this report demonstrated noteworthy developments, mainly with negative impact, concerning journalistic source protection between 2007 and mid-2015
2. The issue of source protection has come to intersect with the issues of mass surveillance, targeted surveillance, data retention, the spill-over effects of anti- terrorism/national security legislation, and the role of third party internet companies known as ‘intermediaries’
3. Legal and regulatory protections for journalists’ sources are increasingly at risk of erosion, restriction and compromise
4. Without substantial strengthening of legal protections and limitations on surveillance and data retention, investigative journalism that relies on confidential sources will be difficult to sustain in the digital era, and reporting in many other cases will encounter inhibitions on the part of potential sources
5. Transparency and accountability regarding both mass and targeted surveillance, and data retention, are critically important if confidential sources are to be able to continue to confidently make contact with journalists
6. Individual states face a need to introduce or update source protection laws
7. It is recommended to define ‘acts of journalism’, as distinct from the role of ‘journalist’, in determining who can benefit from source protection laws
8. To optimise benefits, source protection laws should be strengthened in tandem with legal protections extended to whistle-blowers, who constitute a significant set of confidential journalistic sources
9. Source protection laws need to cover journalistic processes and communications with confidential sources – including telephone calls, social media, and emails – along with published journalism that depends on confidential sources
10. Journalists are increasingly adapting their practice in an effort to partially shield their sources from exposure, but threats to anonymity and encryption undermine these adaptations
11. The financial cost of the digital era source protection threat is very significant (in terms of digital security tools, training, and legal advice), as is its impact on the production and scope of investigative journalism based on confidential sources
12. There is a need to educate journalists and civil society actors in digital safety
13. Journalists, and others who rely on confidential sources to report in the public interest, may need to train their sources in secure methods of contact and information-sharing

Importantly, World Trends in Freedom of Expression and Media Development contains three other chapters on important media issues:

Countering Online Hate Speech provides a global overview of the dynamics of hate speech online and some of the measures that have been adopted to counteract and mitigate it, highlighting trends in good practices that have emerged at the local and global levels. There is a comprehensive analysis of the international, regional and national normative frameworks developed to address hate speech online, and their repercussions for freedom of expression, and there is emphasis on social and non-regulatory mechanisms that may be considered to help to counter the production, dissemination and impact of hateful messages online.

Fostering Freedom Online: The Role of Internet Intermediaries sheds light on internet intermediaries – the services that mediate online communication and enable various forms of online expression. It shows how they both foster and restrict freedom of expression across a range of jurisdictions, circumstances, technologies and business models. The report states: “According to the UN Guiding Principles for Business and Human Rights, while states have the primary duty to protect human rights, businesses have a responsibility to respect human rights, and both should play a role in providing remedy to those whose rights have been violated. This chapter applies the ‘protect, respect, and remedy’ framework to the policies and practices of companies representing three intermediary types (internet service providers, search engines, and social networking platforms) across 10 countries. The three case studies highlight challenges and opportunities for different types of intermediaries within the trend of their increasing importance.”

Safety of Journalists examines recent trends in the safety of journalists, presenting UNESCO statistics for 2013 and 2014, and tracking other developments up to August 2015. The report explains: “It follows the framework of the previous UNESCO report World Trends report, including physical safety, impunity, imprisonment of journalists, and a gender dimension of the issues. Additionally, the chapter examines the unprecedented trend of the strengthening of normative international standards, as well as new developments in practical mechanisms, improvement in UN inter-agency cooperation, greater collaboration with the judiciary system and security forces, and research interest in the subject.”

Related: See my piece from June 22 2015 in The Conversation : How surveillance is wrecking journalist-source confidentiality

© 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.

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Investigative reporter and foreign correspondent Jess Hill (@jessradio) talks media law and censorship

By MARK PEARSON

We were honoured to have investigative reporter and former Middle East correspondent Jess Hill (@jessradio) visit Griffith University to talk about foreign correspondence and the use of social media in journalism.

She was obliging enough to agree to this studio interview with me on media law, censorship and freedom of the press.

Thanks to Bevan Bache and Ashil Ranpara for their camera work, production and technical support.

[Recorded 2.4.14, 11:13 mins].

© 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.

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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.

Screen Shot 2015-08-17 at 3.47.25 pm

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.

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