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'Court TV - Coming To An Internet Browser Near You' Daniel Stepniak University of Western Australia Law School 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 1 SOME ISSUES FLOWING FROM RECENT DEBATES The role of the media in reporting court proceedings The extent of openness required by “open justice‟ Whether the broadcast of court proceedings is justified or required If it is, whether it is appropriate for courts to rely entirely on the media 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 2 THIS PAPER‟S OBJECTIVES ARE TO: Challenge certain assumptions on which the cameras in courts debate has been premised Establish why courts need to move from seeing the issue in terms of permitting the media to record and broadcast proceedings to assuming primary responsibility for the facilitation of public access to audio visual recordings of court proceedings Propose that the streaming of proceedings provides a viable, proven, and beneficial method for courts to play such a role. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 3 THE ENHANCEMENT OF OPEN JUSTICE Why the present level of access is arguably insufficient Low level of public attendance Reasons for decisions written for lawyers Restrictions on electronic media coverage 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 4 OPEN JUSTICE – A MEANS TO AN END „Justice is done in public so that it may be discussed and criticised in public ….so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification‟ per Lord Scarman 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 5 INFORMED CRITICISM Open Justice is required for informed criticism, which in turn is essential to the maintenance of public confidence Reminds courts and lawyers that at times „justice according to law‟ falls short of „substantive justice‟. In responding to inappropriate and uninformed criticism of the judiciary, there is a need to include measures designed to ensure public and media access to sufficient information required for informed debate. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 6 OPEN JUSTICE AND THE INTERNET Increasing accessibility to information – eg. Internet – threatens to undermine „practical obscurity‟ on which regulation of media reporting is premised. This has implications for Regulation of media reporting Role of courts in facilitating publication of court proceedings 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 7 EXTENDED COVERAGE v‟s MEDIA INTERESTS The inescapable reality that the media‟s interests and motivation in seeking to record and broadcast court proceedings do not always coincide with the interests of the administration of justice and the right to a fair trial. Reconciling desirability of extended coverage with this reality 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 8 WHY COURTROOM TELEVISING HAS BECOME SYNONYMOUS WITH MEDIA INTERESTS Media‟s championing of such coverage Reliance on „media rights‟ Absence of evidence substantiating potential benefits 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 9 THE FAILURE OF COURT TV TO LIVE UP TO EXPECTATION FLOWS FROM FLAWED ASSUMPTIONS AS TO THE MEDIA‟S ROLE. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 10 DETERMINATIVE FACTORS 1. The recognition of a legally enforceable right to record and broadcast and/or access audio-visual footage of court proceedings (a culture of rights) 2. The availability of technology capable of ensuring that such coverage is compatible with judicial proceedings, and 3. Above all, the presence of judicial attitudes deeming such coverage to be in the interests of the administration of justice and not merely a media right. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 11 DEVELOPMENTS AND CHANGING ATTITUDES UK NZ Australia Canada US 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 12 STREAMING OF COURT PROCEEDINGS BY US COURTS Florida Mississippi Washington State Indiana Michigan New Hampshire Minnesota 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 13 “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.” - Chief Justice John Doyle. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 14 SPECIFIC REASONS WHY A/V COVERAGE SHOULD NOT BE LEFT TO THE MEDIA a) Lack of media interest in providing in depth coverage of a range of proceedings. b) Lack of media resources to cover all the cases about which the public ought to be informed. c) The unreasonableness of expecting the mass media to act as a de facto reporting service for courts. d) The unreasonableness of expecting the media to adequately and correctly report on cases which are often lengthy, highly specialised, complex and difficult to follow, without court assistance and information. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 15 e) From time to time the media does something which suggests that they cannot be trusted “…too many members of the media, if left unchecked, are prepared to publish anything, whatever the consequences may be.” – Former Chief Justice of the Family Court of Australia, Alastair Nicholson. 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 16 OPTIONS A court committed to facilitating public access to recordings of court proceedings may do so without relying on the media by: Arrangement with a public broadcaster – eg. The Supreme Court of Canada and the Supreme Court of Washington State, and/or by Recording and streaming own proceedings (and providing footage to media) - eg. The Supreme Court of Florida 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 17 STREAMING AS A MEANS OF ADDRESSING CONCERNS WITH CURRENT REPORTING A means of redressing current less than open administration of justice 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 18 An acceptable means of broadcasting proceedings because it: removes the need for courts to rely entirely on media interest and capacity for specific proceedings to be broadcast, ensures that the public may access archived recordings of proceedings at any time, eradicates concerns relating to disruptive recording, selective, sensationalist or misleading coverage, enables the public to view entire, unedited proceedings, and most importantly enables the court to retain control of the recordings 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 19 'Court TV - Coming To An Internet Browser Near You' Daniel Stepniak University of Western Australia Law School 23rd AIJA Annual Conference on 'Technology, Communication, Innovation', Museum of New Zealand, Wellington, 7-9 October 2005 20