Stepniak, Daniel --- "The Broadcast of Court Proceedings in the Internet Age: the Role" [2004] ALRCRefJl 26; (2004) 85 Australian Law Reform Commission Reform Journal 33

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Reform Issue 85 Summer 2004/05

This article appeared on pages 33–37 & 60 of the original journal.

The broadcast of court proceedings in the Internet age: The role of courts

By Daniel Stepniak*

Views on whether the broadcast of court proceedings is desirable remain as polarised today as they were with respect to the taking of the first courtroom press photographs in England over 90 years ago¹ and the filming of cinema newsreels in American courtrooms some 70 years ago.² In large measure, responses to this issue depend on how it is perceived.

If discussed in terms of whether television networks ought to be permitted to record and broadcast court proceedings, the issue tends to evoke images of sensationalist coverage of high profile criminal cases. As such the broadcast of court proceedings is likely to be denounced as a disruptive, distracting intrusion with a potential to adversely affect the rights of parties to proceedings and to hinder and misrepresent the administration of justice. On this basis it is often criticised for turning solemn judicial proceedings into reality-TV public entertainment.

If, on the other hand, the broadcast of court proceedings is considered in terms of recording and broadcasting technologies’ potential to facilitate greater transparency, accountability and understanding of the law, judicial process and decisions, then the prospect and desirability of such broadcasting is far less likely to be so readily dismissed.

As the media access perspective has dominated the discussion of this issue, it is not surprising that the term ‘broadcast of proceedings’ is deemed to be virtually synonymous with the broadcast of highlights of proceedings to entertain television viewers. Freed of the limitations imposed by its association with media interests, ‘broadcast of proceedings’ becomes relevant and meaningful to the full spectrum of judicial proceedings, and the focus moves beyond newsworthy facts to issues of public policy, law and procedure.

Closer inspection reveals the perceived motivation of those who control the recording and broadcast to be the element which polarises opinion on this issue. The nature of ratings and entertainment driven commercial broadcasting makes it difficult to accept that if permitted to record and broadcast judicial proceedings, television networks would have the vested interest to provide extended, balanced coverage of a wide range of court proceedings, including appeals, in an informed, non sensational manner, designed to promote public understanding and objective analysis of laws and judicial decisions.

However, if courts or other organisations committed to promoting greater public understanding and informed commentary on law and judicial proceedings were to take responsibility and control for the broadcast of court proceedings, then the likelihood that such broadcasts would address the lack of public understanding of judicial proceedings and consequent low levels of public confidence in the judiciary no longer sounds incredulous.

Advances in communication technology, and in particular the proliferation of audiovisual recording and the growth and ready utility of the Internet, have largely removed concerns relating to the disruptive and distracting effect of recording equipment and have lessened public unfamiliarity with and fear of even unobtrusive cameras and microphones. Such developments have coincided with a growing public recognition of the need to address low levels of public understanding of and confidence in the judiciary. The employment of the latest technology to address these concerns has the capacity to drastically alter the nature of the debate regarding courtroom broadcasting. In view of the public’s increasing use of the Internet, audiovisual transmission of court proceedings via that medium need no longer be reliant on the interest of media networks nor on their willingness and ability to undertake such recording and broadcasting in a manner consistent with the interests of the administration of justice.

Somewhat surprisingly, this crucial development appears to be largely overlooked in the ongoing international debate of cameras in courts, which remains preoccupied with seeking to establish evidence as to the adverse or beneficial effects of such broadcasts.

A global overview

An increasing number of courts around the world permit proceedings to be recorded and broadcast by media networks. This may in part reflect a trend towards greater transparency and accountability by public institutions. It may also be due to an increasing judicial acknowledgement that public respect for and confidence in courts is more appropriately promoted through increased accountability and informed debate than through the traditional reliance on the maintenance of mystique, and restraint of public debate.

The facilitation of broadcasting to maximise the size of the public audience witnessing and scrutinising controversial trials has been a feature of international tribunals. Perhaps most notably, the International Criminal Tribunal for the Former Yugoslavia records its own proceedings and makes the resulting footage available to broadcasters without imposing any condition on its use. South African courts have also permitted broadcasting in an endeavour to build public confidence in a judiciary, which in the eyes of the black majority had been tarnished through its association with Apartheid regimes.

While all American state jurisdictions and some federal courts permit at least limited broadcast of their proceedings, the Justices of the United States Supreme Court remain vehemently opposed to their proceedings being broadcast—though largely on the basis of their preference for anonymity.³ In contrast to America’s highest court, the Supreme Court of Canada has for the past decade permitted its proceedings to be routinely recorded. Canadian provincial courts have also begun to adopt guidelines and regulations governing such coverage.

Even in Britain, the routine broadcast of judicial proceedings appears imminent and inevitable. Since 1992, Scottish courts have permitted the broadcast of proceedings, albeit under strict conditions. Even though photography in English and Welsh courtrooms has since 1925 been prohibited by legislation banning the in-court use of cameras, for more than 20 years Britain’s highest court, the Appellate Committee of the House of Lords (which has deemed itself not bound by the statutory prohibition), has occasionally and increasingly permitted the broadcast of its decisions—most notably the 1999 appeals against extradition by former Chilean dictator General Augusto Pinochet. The British government has recognised that the blanket prohibition on courtroom photography is increasingly difficult to justify in light of: advances in technology, which have virtually eliminated potential distraction and disruption during recording; freedom of media and expression guaranteed by the European Convention on Human Rights, incorporated into British law by the Human Rights Act 1998; and the government’s judicial reforms which have emphasised the promotion of a culture of rights through enhanced access, transparency and public involvement in the legal and judicial process. In September 2004, the Lord Chancellor announced that the Court of Appeal would undertake a pilot program during which television networks would record appeal hearings as if for the broadcast of various types of programs. A consultation paper designed to trigger a public debate was published on 15 November and a three-week experiment commenced the following day.⁴ The resulting programs will not be permitted to be broadcast but will be evaluated by the judiciary as part of a review of the statutory ban. It is expected that on the basis of this experiment and the concurrent public consultation, courts in England and Wales will shortly move towards allowing at least limited and restricted broadcast of proceedings.

Much closer to home, New Zealand courts undertook a successful three-year experiment with radio and television broadcasting and still photography of court proceedings, and since 2000 have routinely permitted the broadcasting and photographic media coverage of proceedings.⁵ Notably, it was New Zealand’s judiciary which took the lead in introducing the broadcast of proceedings, despite initially concerted opposition from the legal profession, police and a sceptical public.

The broadcast of Australian court proceedings, though not prohibited by legislation, is rarely permitted. The prevailing judicial view appears to still hold that current media coverage is sufficient for the public scrutiny required by the principles of open justice. On this basis any potential benefits flowing from the broadcast of proceedings continue to be deemed insignificant and not worth the perceived potential detrimental effect on parties and the judicial process. Though courts in several states have permitted the broadcast of proceedings on an ad hoc basis, only Western Australian courts have developed and implemented specific guidelines for such coverage. In 1995 the Federal Court of Australia commissioned a study of courtroom televising which recommended controlled and incrementally introduced broadcasting.⁶ The Court on occasion permits segments of proceedings to be broadcast and continues to pioneer innovations such as the provision and occasional broadcast of judgment summaries. Such measures are intended to promote public access to and understanding of courts, and to enhance the accuracy of media reporting.

‘Effects of broadcasting’ as the deciding factor

While an increasing number of courts worldwide permit at least some categories or segments of judicial proceedings to be broadcast, the issue of whether such broadcasting is appropriate remains in dispute. The discernible trend is for courts to accept that a judge may exercise his or her discretionary powers to permit the broadcast of proceedings when persuaded that such recording and transmission will not adversely affect the rights of parties and the administration of justice. Thus those seeking to record and broadcast proceedings are in fact asked to establish that the recording will not distract participants, disrupt proceedings, or adversely affect the decorum of the court; and that the subsequent broadcasts will not deter witnesses and parties testifying, unduly embarrass and intrude into the private lives of litigants, excessively fuel public curiosity, or have an adverse effect on public morality. Placing such an onus on broadcasters initially appears sensible and warranted, but does not withstand closer scrutiny.

As broadcast proceedings cannot be replicated sans the broadcasting, the assessment of the effects of recording and broadcasting proceedings can only be measured in terms of subjective perceptions. Consequently while the findings of numerous studies and experiments have invariably concluded that fears of negative effects were unfounded or capable of being addressed through appropriate regulation, the absence of empirical evidence causes the evidence to remain inconclusive. In this context the onus placed on those seeking permission to broadcast may be said to amount to a virtual prohibition.

The burden of establishing the absence of any negative effects may also be said to be inconsistent with classic judicial formulations of the principle of open justice, which appear to recognise and accept the effects of publicity. The concerns cited to deny a presumption in favour of the broadcasting of proceedings are the very same concerns which have long been accepted as a price worth paying for the attainment of the benefits of open justice. In the House of Lords decision Scott v Scott,⁷ Lord Atkinson observed:

‘[T]he hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent to both parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect.’⁸

That such potentially detrimental effects of publicity should justify a continuing prohibition on broadcasting could, arguably, be justified if the requirements and objectives of the open administration of justice could be amply met without broadcasting. However, the principle of open justice does not merely require justice to be administered in courtrooms which members of the public may enter. As Lord Scarman observed in Harman v Secretary of State for Home Department,⁹ the purpose of subjecting the administration of justice to public scrutiny is ‘so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification’.¹⁰ It is an undeniable fact that very few people attend court proceedings. Instead, the vast majority of the population relies on the media, and overwhelmingly on television, for information regarding court proceedings. Some opponents of broadcasting continue to maintain that the judicial process is sufficiently transparent and the judiciary accountable to the public because proceedings are open to the public and media, and judges are required to publish reasons for their decisions. Such an argument appears to discount the reality that few members of the public personally attend and view proceedings and that judicial decisions are neither written for, nor reasonably capable of being understood by, the lay public. Courts have long recognised the public’s reliance on media reporting for scrutiny of judicial proceedings. In Richmond Newspapers v Virginia¹¹ the United States Supreme Court concluded that as information about trials was primarily obtained from the media, ‘this validates the media claim of functioning as surrogates for the public’.¹²

The crucial importance of the role which the media plays in thus maintaining public confidence in the judiciary, South Australian Chief Justice John Doyle argues, is too important to be left to the media. Noting that ‘confidence of the public in the courts depends upon the public having access to the courts, in the sense of being able to observe and understand what the courts are doing’, he argues that:

‘If the courts are going to leave it to others, the media in particular, to determine how much and what sort of information the public gets about their workings, then the courts are saying that they are content to leave it to others to shape the public understanding and perception of the courts. That to me is not acceptable. I believe that the courts are well placed to explain their function. I consider that experience shows that leaving that task to others is, in the long term, unsatisfactory.’¹³

Even if courtroom publicity were to be left entirely to the media, the courts would need to permit television, the most relied on source of public information, to record proceedings. As television is an audiovisual medium, denying television reporters the ability to record audiovisual material in courts is the equivalent of prohibiting in court note taking by press journalists.

Too important to be left to the media

Several reasons may be put forward as to why simply leaving the broadcasting of proceedings to the media is neither sufficient nor appropriate.

In contrast to the popular view that media networks insatiably seek access to record and broadcast court proceedings, Australian and overseas experiences reveal a lack of media interest in recording and broadcasting proceedings to which courts are prepared to admit cameras. Thus, even though it was undertaken in response to media requests, during the two years of the pilot program in the Canadian Federal Court of Appeal, only on four occasions did television networks request permission to record and broadcast cases.¹⁴ Similarly, in New Zealand’s three-year pilot project with audiovisual coverage of proceedings, the experiment initially almost floundered due to a lack of media interest,¹⁵ and ultimately the evaluation of the pilot only encompassed six trials and four sentencings.¹⁶ Lack of media interest in recording and broadcasting proceedings has been shown to be a problem even when there is clear public interest. When in 2002 the Western Australian Supreme Court permitted radio and television networks to record and broadcast the findings of a very high profile criminal appeal,¹⁷ television networks inexplicably chose to broadcast only several seconds of courtroom footage.¹⁸

One of the reasons cited for why the Judicial Conference of the United States decided to discontinue its experiment with television coverage was judicial disappointment with the media’s apparent lack of interest in broadcasting more than excerpts of proceedings or using footage as visual overlay for their reports.¹⁹ The New Zealand experiment also revealed the broadcast media’s interest to be almost totally confined to the coverage of criminal trials. Recently, Justice Michael Kirby noted the media’s lack of interest in reporting the High Court’s latest decisions of great political and legal significance, and suggested a pressing need for courts to promote public awareness of judicial issues.²⁰

Rather than seeing the media’s lack of interest in the broadcast of certain types of proceedings as evidence of the incompatibility of broadcasting and court proceedings, perhaps it simply should be recognised that commercial networks do not have a vested interest in broadcasts that are not likely to attract and sustain high ratings. Public broadcasters, such as those providing coverage of the Supreme Court of Canada and the Supreme Court of Washington State, on the other hand, have revealed that when divorced from commercial pressures, broadcasters are capable of providing an extended and continuing coverage of proceedings to the satisfaction of both the public and the courts.²¹

Extended coverage, which commercial networks are unwilling to provide, is also capable of being provided by Internet webcasting. Following the streaming by The Independent Media Centre (Indymedia), of an environmental case²² heard in the British Columbia Supreme Court—a court otherwise disinclined to permitting television broadcast of proceedings—a television news director is reported to have conceded that the nature and extent of information regarding the case streamed online by the Indymedia website was: ‘Something we would not have been able to do.’²³

Courts as webcasters

The Internet clearly provides a medium through which, at minimal cost, courts may be able to provide the public with an ability to form their own opinions as to issues, laws and proceedings of significant cases. Such audiovisual coverage is not dependent on media interest, nor is it subject to the media’s editorial control. It can be recorded, unobtrusively, utilising courts’ existing closed circuit or security cameras and audio recording equipment, and by the courts’ own staff—thus removing the ever present concern of recording restrictions being breached.

Perhaps the greatest obstacle to courts assuming such a proactive role in the dissemination of audiovisual recordings is the issue of whether this is an appropriate role for the courts. Former Governor-General and High Court Justice, Sir Ninian Stephen, urged the High Court of Australia to consider broadcasting its proceedings as a means of responding to public criticism based on a lack of understanding of the Court’s functions, and thus to help redress a loss of public confidence.²⁴ This call received a mixed response. While some judges may be uncomfortable with the notion of becoming their own publishers, perhaps the broadcast or webcast of proceedings will become more acceptable if digital age courts come to see broadcasting in much the same way that over a century ago Lord Young suggested reporting of court proceedings ought to be perceived—’as an enlargement of the audience which hears them in Court, but which is limited by the size of the courtroom’.²⁵

The same technology which can be utilised by courts to bring audiovisual recordings of proceedings to the public may also be used to permit public scrutiny of aspects of proceedings currently denied even to those who witness the proceedings in person. In particular, the ever-increasing reliance on written rather than oral evidence and submissions means that public galleries find proceedings largely incomprehensible. The result has been an even greater reliance on media scrutiny and on the media’s subjective interpretations. It is to be hoped that the arrival of the Internet and interactive digital television will open new possibilities for courts to play an active role in ensuring that open justice comes to mean more than unlocked court doors and media commentary on controversial human interest proceedings.

* Daniel Stepniak teaches in the Law School of the University of Western Australia. He is the author of the 1998 report, Electronic Media Coverage of Courts, prepared for the Federal Court of Australia, and of several other publications on the issue of cameras in courts.

Endnotes

1. M Dockray, ‘Courts on Television’ (1998) 51 Modern Law Review 593.

2. R Kielbowicz, ‘The Story behind the Adoption of the Ban on Courtroom Cameras’ (1979) 63 Judicature 14.

3. T Mauro, ‘The Camera-Shy Federal Courts’ (1998) 12 Media Studies Journal 60, 63-65

4. Department for Constitutional Affairs (UK), Broadcasting Courts, Consultation Paper 28/04, November 2004, <www.dca.gov.uk/consult/courts/broadcasting-cp28-04.htm> at 5 December 2004

5. New Zealand Ministry of Justice, The In-Court Media Coverage Guidelines 2003 <www.courts.govt.nz/media/mediacoverageguidelines.doc> at 15 November 2004.

6. D Stepniak, Electronic Media Coverage of Courts, Federal Court of Australia (1998).

7. [1913] UKHL 2; [1913] AC 417.

8. Ibid, 463.

9. [1983] 1 AC 280.

10. Ibid, 316.

11. [1980] USSC 154; 448 US 555 (1980).

12. Ibid, 572-3.

13. J Doyle, ‘The Courts and the Media: What Reforms are Needed and Why’[1999] UTSLawRw 4; , (1999) 1 University of Technology Sydney Law Review 25, 26-27.

14. AL Small, Cameras in the Courtroom Pilot Project: Preliminary Report and Survey Results, Federal Court of Canada (1997).

15. M van Baynen, ‘TV Firms Subdued Over Filming Trials’, The Press (Christchurch) 22 February 1995, 5.

16. K Allan, J McGregor and S Fountaine The Impact of Television, Radio and Still Photography Coverage on Court Proceedings: Final Report, Department for Courts, (1998) 5.

17. Button v The Queen [2002] WASCA 35.

18. C Smyth ‘Court Reporting: Televised Trials Reveal Justice’ The Australian (Perth) 12 June 2003, ‘Media Supplement’, 7.

19. RL Goldfarb TV or Not TV: Television, Justice and the Courts (1998) 88; L Greenhouse, ‘Disdaining a Sound Bite, Federal Judges Banish TV’ New York Times 22 September 1994.

20. M Kirby, ‘Law and Justice in Australia: Room for Improvement’, <www.hcourt.gov.au/speeches/

kirbyj/kirbyj_sep04.html> at 15 November 2004.

21. See discussion in: D Stepniak, Electronic Media Coverage of Courts (1998) 111-113 and 75 respectively.

22. United Mexican States v Metalclad Corp, 2001 BCSC 664.

23. C Wright, director of VTV’s News at Six, quoted by B Teodoro, ‘Cameras before the Courts’ (2001) 3(4) Thunderbird UBC Journalism Review Online Magazine, <www.journalism.ubc.ca/thunderbird/archives/2001.04/ cameras.html> at 15 November 2004.

24. N Stephen, ‘Address on the Occasion of the President’s Luncheon at the Law Institute of Victoria’, 19 August 1988.

25. McLeod v Justices of the Peace for Lewis (1892) 20 R 218.