Herszberg, Arieh --- "Live Streaming Civil Trials in Victoria: How open should the Court's (Virtual) Doors Be?" [2022] JCULawRw 8; (2022) 28 James Cook University Law Review 123

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Live Streaming Civil Trials in Victoria: How Open Should the Court’s (Virtual) Doors Be?

Arieh Herszberg^[1]*

I Introduction

Open justice is the principle that justice should ‘be seen to be done’ by ensuring court processes are transparent.^[1] This research note focuses on the literal meaning of access to justice as the availability and openness of the justice system rather than the legal definition – equal access to legal services.^[2] By narrowing the scope of access to justice, this paper acknowledges the lack of effect live streaming trials will have on receiving equal and appropriate legal services and assistance.^[3] Its coverage is limited to Victoria. The focus of live streaming civil trials is an extremely topical area especially in the post COVID-19 pandemic (‘COVID-19’) world where, in Victoria and nearly all workplaces (where possible), businesses are offering remote capabilities. With no precise legal definition, community understanding indicates a way to improve community members’ knowledge and awareness of the civil justice system.

This paper argues that while live streaming trials in civil proceedings may provide greater access to justice and community understanding of the civil justice system (‘the aims’), it is misguided to suggest that live streaming trials alone is sufficient to improve the aims. Ultimately, rather than proposing a binary assessment of the benefits and obstacles of live streaming trials, the paper considers the question of the viability of live streaming trials in improving the aims as coaxing an examination into whether and how that can become an effective tool for enhancing them.

II Live Streaming Trials: Improving the Aims?

A Access to Justice

Live streaming trials likely improves access to justice through remote communities in Victoria. People, likely journalists, those interested in civil proceedings and those affected by the hearing, can stream trials in places like Towong and Yarriambiack. Where travel time, road conditions, or disability may make the trip to the courthouse essentially impossible,^[4] live streaming trials ensure that those living in remote Victoria can access proceedings. This remote access alleviates concerns about ableism and the rural-city divide. Indeed, the Supreme Court of Victoria (‘SCV’) should prioritise routinely streaming of proceedings concerning rural and regional Victoria.^[5]

While this argument remains compelling, the SCV must consider the digital divide: in 2016–17, 13% of households in Victoria held no connection to the internet, with these statistics increasing for rural homes.^[6] Thus, those who would require and enjoy digital inclusion and live streaming trials the most are statistically the most unlikely to have reliable internet in Victoria. However, digital inclusion is a rapidly evolving space. Data from the National Broadcasting Network and the wave of remote working and learning from the COVID-19 pandemic may shed light on this issue.^[7] The recommendation is that the stream does not require considerable bandwidth, improving its accessibility in rural communities.

Lastly, live streaming trials confirm virtual attendance for those unable (perhaps due to COVID-19 social distancing orders), unwilling (specifically in Victoria due to COVID-19 anxiety or trauma), incapable (because of full day work commitments), or interstate/overseas to physically attend court.^[8]

B Community Understanding

Live streaming trials enhance community understanding of the civil justice system. School or university classes can view trials through the online platform, allowing pauses, comments, and notes.^[9] Here, community members will see civil justice cases as they are, without media edits made for dramatic effect or to serve a particular bias.^[10] While courts should not follow the media’s role in providing information,^[11] this is a court-run stream, unlike the media’s coverage. Ultimately, live streaming trials improve the transparency of the civil justice system, promoting respect for it.^[12] People watching the stream would understand the difficulties and complexities inherent in trials. Indeed, these benefits encourage trust and community understanding, potentially debunking any myths surrounding the operation of the civil justice system.^[13]

However, it is likely that the number of people live streaming trials, especially during civil hearings, will be low and therefore of doubtful usefulness in improving the aims and general community awareness substantially.^[14] Nevertheless, relying on active, inquiring community members should not dissuade the SCV from routinely live streaming trials as that may well be an economical approach for, potentially, improving the aims. Hence, while live streaming may enhance the aims, the barriers surrounding it persist.

III The Barriers Blocking the Court’s Virtual Doors

Importantly, if the SCV relies on live streaming trials, the aims are contingent on internet mishaps. Despite the valid arguments surrounding consistent connection to the internet and the necessary materials, a powerful position remains about people hacking the stream.^[15] For example, in the infamous Novak Djokovic hearing, pranksters played loud music and streamed pornography through the Federal Circuit and Family Court’s expired live stream. Thus, the SCV will need to invest in technological defences and training, leading to increased costs. These costs may lead to the SCV deciding that live streaming trials is too expensive.

However, this argument is weak as technology and live streaming save money as the infrastructure costs are one-off payments and eliminate costs of court reporters.^[16] Even though the view of live streaming saving money stems from 1992 research regarding video transcripts,^[17] rendering a kindred argument for live streaming trials ostensibly obsolete, the position and principle remain valid – investing in training and technology saves money for the court, specifically in administrative costs.^[18]

Further, people may virtually record the stream. Here, the SCV must put barriers in place, especially in sensitive cases where the parties’ privacy is paramount – as would be the case, for example, with undercover officers, child witnesses, and in family matters.^[19] Similarly, spectators at the court may not want the stream to show their faces. The SCV should consider these privacy factors when determining the routineness and appropriateness of live streaming trials.

Moreover, live streaming may distract those participating in the court hearing. The camera and microphone in the courtroom may distract the participants and the judge. Nonetheless, cameras, microphones, and other gadgets necessary to stream are quiet, small, and unnoticeable.^[20] Rather, live streaming may coerce lawyers to create multiple arguments for the court and the public. Indeed, the most significant concern surrounding live streaming trials is that the process assists in theatrics,^[21] ultimately distracting from the essence of the civil justice system.

This concern is supported by a comprehensive 2020 study which concluded that 5% of participants believed that live streaming alters participants’ conduct.^[22] Nevertheless, while recognising the validity of this problem, it seems more likely that live streaming trials ensure that all participants are performing at their best.^[23] Live streaming may deter witnesses from lying, due to the added pressure of a live stream, and can encourage lawyers to perform at their best as potential clients may view the stream.

A further barrier to live streaming includes the likely disjunct between what occurs in court and what appears on the stream. This disparity may provide a different outcome from what the public watching the live stream believes and the court’s decision, risking a loss of public trust in the judicial process.^[24] Indeed, when examining this disparity, it is clear that the streaming consists of the court process and the formal statements, ‘with its static and inevitably limited camera angles’.^[25] Thus, live streaming provides an incomplete viewpoint on what materialises in the courtroom. This paper considers ways to rectify these obstacles.^[26]

IV How to Make Live Streaming Trials a Viable Tool for Enhancing the Aims

Firstly, the SCV could draft rules regarding live streaming trials. The model guidelines outlined by the Supreme Court of India would be an appropriate first draft for the SCV model rules.^[27] For example, any proposed draft model rules should assuage concerns regarding privacy factors, determining which circumstances are relevant. To address that concern the Indian model guidelines require a 10 minute delay for the stream to ensure compliance with specific requirements. Yet, this paper argues that no hesitation should be present. That would better ensure that there is no compromise of the access to justice because a delayed stream is not consistent with how court proceedings are regularly conducted in public.^[28] This paper also recommends implementing de la Mare’s practical guidelines accompanying the draft model rules.^[29]

Second, additional information could complement the stream. For example, provision could be made to label the people in court with their correct titles, offering an online function where the audience can distinguish lawyers from witnesses, judges, and spectators. However, a valid query remains as to whether this would be an appropriate use of court funding – or whether the money to implement it would be better used to, for example, reduce the backlog of cases before the court/s.

Additionally, the SCV could adopt live streaming trials through appropriate technology to assist public viewing with minimal distractions and interruptions.^[30] For example, live streaming could offer translation assistance and live captions, ensuring that those for whom attending court may be difficult can understand the operation of the civil justice system.^[31] Further, a notice on the SCV website outlining how to watch the stream, at what time, on which website, the type of proceeding (for example, negligence claims), the litigants involved, and the case’s history (if relevant) would improve understanding of the trials.

There could also be a web link to relevant written documents.^[32] This would appeal to a broader community of scholars and bloggers, ensuring that they have access to skeleton arguments and written openings. These recommendations provide an appropriate way for technology accompanying live streaming trials to support community understanding of the civil justice system.

Lastly, to ensure viability, the SCV could study developments and feedback (within the pilot program of live streaming trials) to ensure meeting the aims. This review should utilise design methods and processes to harness technology to achieve an optimal result. For example, the SCV could send a virtual feedback sheet to those watching and implement a user-testing table of the live streaming trials processes and links. Predominantly, these avenues for feedback should be asking: Is it usable? What are we lacking? How can we do better?

Figure 1: The Process of Ensuring Live Streaming Trials Are a Viable Way to Improve the Aims

V Conclusion

Significant barriers block the door to a conclusion that live streaming trials enhance the aims. Nevertheless, if they are implemented in line with the recommended steps and the proposed process, they are likely to prove to be an appropriate way to improve achievement of the aims. Indeed, while Victoria is recovering from the COVID-19 onslaught that brought the State to its knees, the Supreme Court of Victoria should be actively considering ways to improve attainment of the aims. One way is by considering the proposals in Part IV of this paper and developing the live streaming of trials.

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^* Editor of the Monash University Law Review and paralegal at one of Melbourne&#82[1]s top international law firms.

^[1] R v Sussex Justices; Ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256, 259 (Lord Hewart CJ). See also Scott v Scott [1913] AC 417, 463 (Lord Atkinson). See especially Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J) (‘Russell’), citing McPherson v McPherson [1936] AC 177, 200 (Lord Blanesburgh for Lord Macmillan and Lord Wright).

^[2] Robert Rubinson, ‘A Theory of Access to Justice’ (2005) 29(90) Journal of the Legal Profession 89, 121. See generally Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35(4) Sydney Law Review 674, 675.

^[3] Richard Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019) 70.

^[4] Justice Kenneth Martin, ‘Open Justice in Western Australia’ (2014) 88(11) Australian Law Journal 779, 779–80.

^[5] See, eg, Herridge v Electricity Networks Corporation [No 4] [2019] WASC 94, [3] (Le Miere J).

^[6] Australian Bureau of Statistics, Household Use of Information Technology, 2016–17 (Catalogue No 8146.0, 28 March 2018). See also Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings (Catalogue No 4430.0, 24 October 2019).

^[7] See also Amanda M Chu, Thomas W C Chan and Mike K P So, ‘Learning from Work-From-Home Issues During the COVID-19 Pandemic: Balance Speaks Louder than Words’ (2022) 17(1) PLOS One 1, 1–2.

^[8] Consider the anxiety and trauma Victorians have endured since the onset of COVID-19 in March 2020: see especially Victoria M E Bridgland et al, ‘Why the COVID-19 Pandemic is a Traumatic Stressor’ (2021) 16(1) PLOS One 1, 1, 6, 10. As such, live streaming trials are an appropriate method of ensuring virtual attendance for those who are unwilling or cannot attend physically due to COVID-19 social distancing orders.

^[9] New South Wales Law Reform Commission, Open Justice: Court and Tribunal Information (Consultation Paper 22, December 2020) 268 [12.24]. Further, despite being outside the scope of this research note, if the Supreme Court of Victoria allows for the live streams to be recorded, schools and universities may also teach utilising the recorded content.

^[10] Elliot E Slotnick, ‘Media Coverage of Supreme Court Decision Making: Problems and Prospects’ (1991) 75(3) Judicature 128, 130–1, 139.

^[11] Sharon Rodrick, ‘Achieving the Aims of Open Justice? The Relationship Between the Courts, the Media and the Public’ [2014] DeakinLawRw 4; (2014) 19(1) Deakin Law Review 123, 141, 144, 159.

^[12] Daniel Stepniak, Audio-Visual Coverage of Courts: A Comparative Analysis (Cambridge University Press, 2008) 396.

^[13] See Jian Xu and Cong Liu, ‘How Does Courtroom Broadcasting Influence Public Confidence in Justice? The Mediation Effect of Vicarious Interpersonal Treatment’ (2020) 11(July) Frontier Psychology 1, 6, 10. See especially Chief Justice James Allsop, ‘Technology and the Future of the Courts’ [2019] UQLawJl 1; (2019) 38(1) University of Queensland Law Journal 1, 7.

^[14] James Fowkes, ‘Civil Procedure in Public Interest Litigation: Tradition, Collaboration and the Managerial Judge’ (2012) 1(3) Cambridge Journal of International and Comparative Law 235, 235–6.

^[15] See also Joe McIntyre, Anna Olijnyk and Kieran Pender, ‘Civil Courts and COVID-19: Challenges and Opportunities in Australia’ (2020) 45(3) Alternative Law Journal 195, 198.

^[16] Daniel Stepniak and Paul Mason, ‘“Court in the Web”: The Impact of the Internet on the Cameras in Court Debate’ [2000] AltLawJl 28; (2000) 25(2) Alternative Law Journal 71, 71, 74.

^[17] Ibid 71, quoting Victorian Law Reform Committee, Technology & The Law (Report, May 1999) 187–8 [10.54].

^[18] Daniel Stepniak, ‘The Broadcast of Court Proceedings in the Internet Age: The Role of Courts’ (2004) 85 (Summer) Reform 33, 37. See generally Australian Institute of Criminology, Audiovisual Link Technologies in Australian Criminal Courts: Practical and Legal Considerations (Report, 2021) 1, 10.

^[19] See, eg, Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Report No 129, December 2015) 232–4 [8.58]–[8.63]. See Russell (n 1) 520 (Gibbs J). See also Open Courts Act 2013 (Vic) s 18(1).

^[20] Alex Kozinski and Robert Johnson, ‘Of Cameras and Courtrooms’ (2010) 20(4) Fordham Intellectual Property, Media and Entertainment Journal 1107, 1110.

^[21] David Bamford and Mark Rankin, Principles of Civil Litigation (Lawbook, 4^th ed, 2021) 372 [15.110].

^[22] Elizabeth G Thornburg, ‘Observing Online Courts: Lessons from the Pandemic’ 2020 54(3) Family Law Quarterly 181, 206. Cf Daniel Stepniak, ‘Technology and Public Access to Audio-Visual Coverage and Recordings of Court Proceedings: Implications for Common Law Jurisdictions’ (2004) 12(3) William & Mary Bill of Rights Journal 791, 801–2.

^[23] Kozinski and Johnson (n 20) 1112.

^[24] See especially Anne Richardson Oakes and Haydn Davies, ‘Justice Must be Seen to Be Done: A Contextual Reappraisal’ [2016] AdelLawRw 18; (2016) 37(2) Adelaide Law Review 461, 493.

^[25] Jane K Cowan and Julie Billaud ‘The “Public” Character of the Universal Periodic Review: Contested Concept and Methodological Challenge’ in Ronald Niezen and Maria Sapignoli (eds), Palaces of Hope: The Anthropology of Global Organizations (Cambridge University Press, 2017) 112.

^[26] Marilyn Warren, ‘Open Justice in the Technological Age’ [2014] MonashULawRw 5; (2014) 40(1) Monash University Law Review 45, 56. Additionally, the issue of undermining judicial sovereignty may be relevant. Here, the judge may be interested or follow what the public believes/wants the outcome to be as the judge, through the live stream, provides a public outcome of the result. However, this is a weak argument at best, as the judge must look away from these factors and the inclusion of a live stream ensures that the judge should be acutely aware that they must be free of any influence.

^[27] Tripathi v Supreme Court of India (2018) 10 SCC 639, [26] (Khanwilkar J).

^[28] Michael Legg, ‘The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality’ (2021) 49(2) Federal Law Review 161, 169, citing News Digital Media Pty Ltd v Mokbel [2010] VSCA 51; (2010) 30 VR 248, 259 [35] (Warren CJ and Byrne AJA).

^[29] Thomas de la Mare, ‘Coronavirus and Public Civil Hearings’ (2020) 25(2) Judicial Review 118, 131–2.

^[30] Legg (n 28) 168. See generally David Harvey, Collisions in the Digital Paradigm Law and Rule-Making in the Internet Age (Hart Publishing, 2017) 210.

^[31] See Victoria Government, Access to Justice Review: Volume 1 Report and Recommendations (Report, August 2016) 131.

^[32] Natalie Byrom, Sarah Beardon and Abby Kendrick, Rapid Review: The Impact of COVID-19 on the Civil Justice System (Report, June 2020) 73 [7.6]. See also Sigurd D’hondt, ‘Why Being There Mattered: Staged Transparency at the International Criminal Court’ (2021) 183 (October) Journal of Pragmatics 168, 175.