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Daniel Stepniak and Paul Mason[*]
In the past few years Australian and overseas courts had begun to recognise that, in view of the public’s reliance on the electronic media as a major source of public information,[1] open justice may require that the electronic media and, in particular, television cameras, be granted greater access to courts. Ironically, just as courts set about determining how to regulate such access, significant developments in information technology are changing the picture once again.
Australian Bureau of Statistics figures indicate that by May 1999, an estimated 1.5 million Australian homes were connected to the Internet and that 2.2 million Australians use the Internet every day.[2] Current government commitments to provide all school children with access to the Internet appear to underline the technology’s role as a key source of information and education.
This technology has had a profound impact on public access to the law, legal practice and the courts. Australia is said to have the ‘largest amount of legal materials available on the Internet of any country’.[3] Access statistics relating to the AustLII databases reveal over 1 million hits each week.[4]
Australian and overseas courts have utilised the Internet in case management and court management systems, electronic filing, real time transcription, electronic trials, which can be conducted in courtrooms such as Western Australia’s District Court’s digital courtroom, and judicial support systems such as the Tasmanian Supreme Court’s ‘Comments on Passing Sentence’ service. Overseas evidence suggests that, once the infrastructure is in place, video transcripts of proceedings actually save money. The Victorian Law Reform Committee notes that, ‘in 1992 the California Judicial Council found that a video-recorded courtroom could save US$41,000 per year’.[5]
In recognition of its phenomenal growth and seemingly limitless potential as a medium of public communication, information and education, the Internet is set to radically alter the nature of the ‘cameras in court’ debate.
Since the mid-1990s the Federal Court of Australia has been at the forefront of innovations designed to facilitate accurate reporting of court proceedings and to promote greater public awareness and understanding of the judicial process. The Federal Court became the first Australian superior court to:
• permit sound and vision of a judgment to be recorded for broadcast (Friends of Hinchinbrook Society Inc v Minister for Environment & Ors [1997] FCA 55);
• permit the live broadcast of a judgment (Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors [1998] FCA 397); and
• broadcast proceedings via cable television (Ryan v Great Lakes Council [1999] FCA 177).
It is not altogether surprising that the Court should also take the lead in utilising the Internet as a medium for the publication of judgment summaries, transcripts and the audio-visual streaming of proceedings. The Federal Court had already begun to utilise Internet technology when in December 1998 a report commissioned by the Court recommended that:
In view of the public’s increasing utilisation of the Internet as a source of information, it is recommended that the Court considers the impact of this technology and its employment, not only in facilitating awareness of the Court’s proceedings and the publication of the Court’s judgments, but also its potential to enable greater public and media scrutiny and to publish audio-visual educational materials, judgment summaries, and ultimately, audio-visual recordings of the Court’s proceedings.[6]
In August 1999 the Federal Court became the first Australian court to broadcast live, sound and vision of a judgment on the Internet (AOC/Big Flights Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042. Justice Lindgren’s judgment in that case, which concerned the copyright in film of the Melbourne Olympic Games, was broadcast live by Sky News. The success of this live streaming, arranged and evaluated by a law student with significant experience and expertise in both television and Internet radio,[7] has led the Court to set up a ‘Video Archives of Judgment Summaries’ web-page, from which live streaming video/audio and archived broadcasts may be accessed (http://www.fedcourt.gov.au/videoarchive.htm).
The High Court of Australia has also embraced Internet technology, becoming one of the first courts to make its decisions publicly available on the web and to adopt media- neutral citation and paragraph numbering. In adopting a form of citation and paragraph numbering which synchronises the text of electronic reports with the more traditional printed law, the High Court may be said to have acknowledged both the legitimacy and increasing usage of electronic research and retrieval of case law. In December 1999 the High Court announced that it would transmit audio coverage of its proceedings via the Internet by the end of the current financial year. This initiative is in response to community concerns regarding restricted public access to the Court. As cost cutting has led to the Court being closed on weekends and holidays, the Internet appears to provide a needed alternative form of community access to the Court. The Court has yet to address the issue of whether to permit live or delayed streaming. Visual as well as audio streaming may also be considered if remaining concerns about the impact of visual coverage and the low video quality permitted by currently utilised narrow-casting technology is redressed.
In November 1999, the federal parliament officially commenced live Internet transmission of the proceedings of both houses of parliament and parliamentary committees. Seven channels are able to be accessed 24 hours a day, seven days a week via the federal parliament’s web page (http://www.aph.gov.au/index.htm). They provide live, unedited sound and vision of all parliamentary and committee proceedings. Repeats and video-on-demand services may in the future replace the music and still pictures of parliament which are currently streamed when parliament or committees are not in session. For some time federal parliament had considered means of securing more extended coverage of its proceedings to those provided by radio and television broadcasters. Both free-to-air and pay-television were found not to be viable options.
The Internet on the other hand provides federal parliament with scope for virtually unlimited coverage and enables the existing comprehensive recording of all parliamentary proceedings to be disseminated to the public, and not just politicians, their staff, parliamentary personnel and administrators linked to Parliament House.
The Internet is not seen by parliament as a replacement for radio and television broadcasting, but rather as a complementary medium. Previously only snippets of committee hearings had been broadcast and television coverage of parliament itself had also been largely restricted to question time and late night weekly summaries. The Internet is not only complementary in terms of the extent and range of coverage it offers but also because it provides communities which are unable to access radio and television broadcasts of parliamentary proceedings with Internet coverage.
Federal parliament’s use of the Internet clearly illustrates that it is ‘an ideal tool to provide information to the public’.[8] It also identifies problems which are equally applicable to the courts. Some are technical difficulties such as firewalls found in government buildings, which are designed to prevent streaming in order to avoid network congestion and to minimise costs. Perhaps more significantly Internet users who are charged by the volume they download rather than the time they spend connected to the Internet are likely to find using the federal parliament’s service expensive. This may affect the Internet’s potential to provide members of the public with access to legal proceedings.
Unlike Australia, cameras are banned from English and Welsh courtrooms by statute. Despite the prohibition of s.41 Criminal Justice Act 1925 (UK), there has been some advancement in courtroom technology in the United Kingdom that may lead to a reconsideration of the ban on electronic court reporting. Lord Woolf’s Report on Access to Justice[9] and the Lord Chancellor’s Department consultation paper on IT and civil disputes[10] stress the need for the law to embrace new technology and in particular the Internet.
Noting a ‘groundswell of interest and enthusiasm for the use of Information Technology in [the UK] justice system that has gathered momentum since Lord Woolf’s report’ the Victorian Law Reform Committee has suggested that while ‘[c]ourts in the UK have lagged behind their American and Australian counterparts in the use of technology … [they] may now be in a position to leapfrog the US and Australia’.[11]
Remote access to court proceedings around the world is possible via the Internet using a system, called Livenote, developed by a UK-based company. It provides verbatim court reporting in real time that can be viewed via the Internet. It operates by connecting the court stenographer’s machine to a computer, so that the transcript appears line by line on the computer screen of anyone connected to Livenote in or outside the courtroom. This technology is used in the Court of Appeal and the High Court in England and was utilised in both the Crown Office case against General Pinochet (R v Bartle and the Commissioner of Police for the Metropolis and others ex parte Pinochet, 24 March 1999) and in the case of Anthony Sawoniuk, the first war crimes trial in the United Kingdom since World War II.
Livenote can also be used to assist judges and counsel in proceedings. This has been particularly useful at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, Netherlands where proceedings are in three languages — English, French and Bosnian/Serb/ Croatian. The transcript is posted to all court participants’ laptops in their chosen language and is the official record of the Tribunal’s proceedings. Livenote is also a powerful litigation tool as the transcribed text can be annotated and coded once it is received on screen. This has proved invaluable to judges who are able to reorganise testimony given chronologically in a trial into issues and themes. For example, if three witness all gave testimony concerning the whereabouts of the defendant at the time a crime was committed, the judge would be able to search the transcripts of the witness’ testimony highlight the relevant passages and then, if desired, create a folder into which they could place these passages.
Once combined with the Internet this technology provides remote access to court proceedings anywhere in the world. Fee-paying clients are provided with real-time transcripts on an Internet site via modem from the courtroom. The client will be provided with a password allowing them access to the site. There is also the option of an Internet chat facility, allowing the expert witness to comment on the case as it happens via email to the relevant lawyer’s laptop. The future, however, could involve a combination of Livenote with digital cameras. This would allow pictures of the trial to be synchronised with the transcript of the text, thus providing a remote feed of courtroom proceedings directly to the clients on the Internet.
This new technology is likely to impact on the electronic media coverage debate in a number of ways. The first concerns the role of the media. The Internet’s proven capacity to broadcast sound and vision of court proceedings is likely to marginalise the issue of the regulation of media broadcasts of such recordings. Most significantly it could be said that the publication of audio visual recordings of court proceedings need no longer be dominated by discussions of whether the electronic media can be trusted to report fairly, accurately and without adversely affecting proceedings, participants and the administration of justice. Thus it could be said that individuals, able to hear and see court proceedings from the courtroom via an Internet site, would circumvent television companies completely. Consequently, opponents of audio visual coverage would no longer be able to base their opposition on the electronic media’s potential to edit, distort and sensationalise legal proceedings. The courtroom website would become an extension of the public gallery, allowing greater access to courts and making the judicial process more transparent. It is therefore likely that the focus of the debate will move to an updating of the concepts of open justice and open courts.
Secondly, arguments in favour of camera access have stressed potential benefits to the administration of justice. Opponents of courtroom televising, who have conceded these potential benefits, have continued, however, to point to media excesses and to emphasise the harm which could be caused by media abuses of such access. It is difficult to deny that the interests of the electronic media and the interests of the courts are sometimes at odds with each other. At times the electronic media will broadcast footage merely to attract the maximum number of viewers, while the courts seek to enhance public access to and understanding of the role of courts, the judicial process and court decisions by permitting the public to observe court proceedings. A careful and appropriate regulation of media coverage has been the imperfect but workable way of reconciling these interests — a solution which the Internet may make redundant.
Thirdly, Internet coverage of legal proceedings has created a worldwide audience. Currently very few televised cases have been seen outside their country of origin, the trials in the United States of OJ Simpson (The People of the State of California v Orenthal James Simpson unreported, Los Angeles Criminal Courts, Ito, J, 4 October 1995) and Louise Woodward (Commonwealth v Louise Woodward, Massachusetts Supreme Court, Justice Hiller B Zobel, 6 October 1997) being notable exceptions. If courtroom proceedings were available on websites, however, the potential global audience would have fundamental implications for notions of international justice. Arguably it could emphasise and strengthen the international concerns over human rights, terrorism and war crimes. Certainly international courts such as the International Courts of Justice, the ICTY, and the European Court of Human Rights would be able to be viewed by the very audience they were established to serve and protect.
This assumes, of course, that people want to watch gavel-to-gavel coverage of trials. Public attendance in local courtrooms could be said to suggest a distinct lack of community interest in court proceedings. It would also appear that people prefer to watch dramatised proceedings such as Judge Judy or highlighted, truncated versions of court cases rather than trials in their entirety. They want to watch OJ Simpson trying on a glove, Louise Woodward’s reaction to her guilty verdict. For the most part, and to the uninitiated, legal proceedings are tortuous affairs. This was borne out by the first trial at the ICTY. Court TV billed the trial of Dusko Tadic, indicted on 33 counts of crimes against humanity during the conflict in the former Yugoslavia, as ‘the trial of the century’. Their gavel to gavel coverage lasted only a week due to poor audience ratings — the trial lasted 14 months. How many people are likely to pay to view gavel to gavel coverage on the Internet when they can watch an edited version with commentary and explanation on nightly television news?
It may also be suggested that the larger the audience, the greater the possibility that court participants may be adversely affected. There has been a large body of research undertaken to ascertain what effect, if any, electronic broadcast coverage of court proceedings has on court participants. While the research has proved to be inconclusive, opponents of audio- visual court reporting point to such research as reasons to keep cameras out of the courtroom. These arguments may well be strengthened by the Internet’s potential global audience.
There are a number of clear advantages to broadcasting proceedings on the Internet. The Internet enables a virtually limitless number of court proceedings to be broadcast simultaneously — irrespective of media interest. As discussed above, it also provides a means of ensuring that the footage is not edited by the media and truly permits court proceedings to be opened to public and not just media scrutiny.
The technology also appears to overcome concerns expressed by judges about the media’s lack of interest in broadcasting extended coverage other than in most sensational of cases. Such concerns were a crucial factor in the 1994 decision by the United States Judicial Conference to keep cameras out of federal courtrooms, in spite of the otherwise favourable evaluation findings of a three-year pilot project. Subscription television is not likely to be able to provide Australian courts with extended coverage. Australia simply doesn’t have sufficient cases available for broadcast to warrant a dedicated channel. Even in the United States, where cameras are currently permitted in some federal courts and in the courts of all bar two States, Court TV, a cable network with over 30 million subscribers, which specialises in the broadcast of court proceedings, was recently forced to begin broadcasting legal drama rather than court proceedings in peek viewing times in order to survive financially.
The impact of the Internet’s facilitation of public access to the text of legal materials has been summed up by Justice Kirby in the following terms:
No longer are legal materials the captive of ‘Judge & Co’, hostage to a university training and privy to the lawyers who can afford the leather bound books. Now the law is where it should be. At the fingertips of the citizenry … Law to the people is free and is accessible. And the people are beginning to respond.[12]
That the Internet is beginning also to provide public access to transcripts and even audio and visual recordings of court adds further credence to Justice Kirby’s prediction that, ‘free access to the law by the people — may yet be accomplished by the miracles of automated information technology’.[13]
References
[*] Daniel Stepniak teaches in the Law School at the University of Western Australia. Paul Mason teaches in the Centre for Media and Justice at Southampton Institute. The authors are jointly researching the electronic media coverage of court proceedings in Europe.
[1] See discussion in the Victorian Law Reform Committee Report, Technology & The Law, May 1999, para.12.27, at < <http://www.austlii. edu.au/au/other/col/1999/2/22.html#Heading268> >.
[2] Australian Bureau of Statistics, Use of the Internet by Householders, AGPS, Canberra, August, 1999.
[3] VLRC Report, above, ref 1 at para.11.40.
[4] See The Hon Justice Michael Kirby AC CMG, Text of speech titled ‘Free the Law — Beyond the “Dark Chaos”’ delivered at the ‘AustLII Law Via the Internet ’99 Conference’, held at the Law School of UTS in Sydney on 22 July 1999. See < <http://www.hcourt.gov.au> >; and VLRC Report, above, ref 1 at paras 11.34–11.40.
[5] VLRC Report, above, ref 1 at para 10.54.
[6] Stepniak, Daniel., Electronic Media Coverage of Courts, A Report prepared for The Federal Court of Australia, 1998, recommendation 48, p.xiv.
[7] Cameron, Hamish, ‘The Televising of Court Proceedings in Australia’, unpublished paper, submitted in the partial fulfilment of the requirements for the Research Project at the University of Technology, Sydney.
[8] VLRC Report, above, ref 1 at para 5.9.
[9] The Right Honourable the Lord Woolf, Access To Justice: Interim Report To The Lord Chancellor On The Civil Justice System In England And Wales, Lord Chancellors Department, 1995.
[10] Resolving and Avoiding Disputes in the Information Age, Lord Chancellor’s Department Consultation Paper September 1998 at < <http://www.open.gov.uk/lcd/lcdseafr.htm> >.
[11] Victorian Law Reform Committee, above, ref 1 at para 9.16.
[12] The Hon Justice Michael Kirby, above, ref 4.
[13] The Hon Justice Michael Kirby, above, ref 4.
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