Douglas, Michael --- "Disrupted justice: How technological change is expanding open justice" [2017] PrecedentAULA 17; (2017) 139 Precedent 10

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DISRUPTED JUSTICE

HOW TECHNOLOGICAL CHANGE IS EXPANDING OPEN JUSTICE

By Michael Douglas

The principle of open justice, encapsulated in the maxim that ‘justice should be seen to be done’, is said to predate Magna Carta.^[1] Centuries later, it is fundamental to common law justice: in Hogan v Hinch, French CJ recognised that an essential characteristic of courts is that they sit in public.^[2] But the concept of ‘public’ has changed over time.^[3]

The fact that courts are open to the public is of little use to most people. Apart from the physical limitations of courtrooms, people have jobs. They rely on the media to be their eyes and ears.^[4] Court reporting has become essential to the realisation of open justice, and courts recognise this.^[5] In a 2015 speech to the Judicial Conference of Australia, Chief Justice Wayne Martin AC observed that:

‘It is vital for the Courts to recognise and appreciate that the media are exactly what the word connotes, that is, the medium by which the principle of open justice is effectively communicated to the community which we all serve.’^[6]

As technology has changed, so has that medium. Today, open justice is mediated not only by mass media, but social media too.^[7] Courtrooms are more accessible than ever before. For the most part, this should be celebrated. But the expansion of open justice also poses real challenges for courts.^[8] Traditional aspects of justice are being disrupted.

DISRUPTION?

In recent years, the term ‘disruption’ has been bandied about with reckless abandon. It has been favoured by the Prime Minister, by faux-business gurus on LinkedIn, and seemingly by anyone who wants to comment on some kind of societal change.

The trend can trace its origins to the work of Harvard Professor Clayton Christensen. In the 1990s, Christensen’s theory of ‘disruptive innovation’ described how smaller companies with fewer resources can challenge incumbent businesses by focusing on overlooked market segments.^[9] In recent years, Christensen has lamented the ubiquitous misuse of his theory.^[10] This is yet another act of heresy.

Courtroom justice is being ‘disrupted’ in the sense that traditional institutions are being challenged and replaced by something new.^[11] This is not a prescriptive claim. Whether we like it or not, disruption is occurring. We should consider what should be done about it.

CHALLENGES FOR JUDICIAL CONTROL

The media is not free to report on everything that goes on in court. Through exercise of inherent, implied, or statutory powers, courts depart from open justice by orders concealing information or restricting publication.^[12] They do so to balance competing public interests.^[13] Commentators have questioned whether orders departing from open justice can be effective in an online world.^[14]

Consider the 2014 case of a suppression order granted in the Supreme Court of Victoria prohibiting publication of bribery allegations against several prominent foreign politicians, including Malaysian Prime Minister Najib Razak. The order was made under the Open Courts Act 2013 (Vic) in criminal proceedings involving subsidiaries of the Reserve Bank of Australia. The purpose of the suppression order, which was sought by the Department of Foreign Affairs and Trade and purported to apply throughout Australia, was to prevent damage to Australia’s international relations. Australian media organisations initially complied, but a month after the order was made it was published on Wikileaks. Its details were widely reported in the international press, including on internet news websites that any Australian could access. Australian media organisations then applied to have the suppression lifted. In DPP (Cth) v Brady (Brady),^[15] Hollingworth J revoked the order, determining that its continuation was no longer necessary or desirable.

Despite her Honour’s pains to stress that the decision should not encourage illegal leaks,^[16] Melbourne academic Jason Bosland argues that it cannot be denied that the decision has that potential.^[17] A person seeking to publish suppressed information could simply leak the information to Wikileaks and then apply for the order’s revocation, relying on the principles that futile orders should not be made, and that orders that become futile should not be sustained.^[18] Breach of confidence jurisprudence supports the proposition that courts will not provide relief to suppress information where that information is already in the public domain.^[19]

Brady is the first Australian case in which a suppression order was revoked on the basis that it had become futile after its breach online.^[20] It will not be the last. In rare cases, when the story is salacious enough, orders departing from open justice will be deliberately breached, putting leakers at risk of criminal sanctions. Technology has made this possible by mitigating the risk for would-be leakers. Anyone with access to supressed information, a connected device, and the will to blow the whistle can download TOR (free software enabling anonymous communication) and go to work. [The author Googled ‘how to anonymously leak information’ while writing this article. A lot of information is readily available and comprehensible by a layperson. He hopes that ASIO will forgive him.]

More broadly, Brady illustrates the challenge that globalisation and the internet pose to courts of limited jurisdiction.^[21] A court’s authority to decide is essentially territorial, depending on the amenability of the purportedly-bound person to the court’s command.^[22] Thus, the suppression order in Brady did not survive its illegal publication by Wikileaks.

The internet presents a challenge for judicial control, particularly in respect of matters of open justice. Online sharing might render some non-publication orders futile. But that will not always be so; Brady was an extreme case. As recognised in R v Perish, ‘[t]he inability of a court to remove all offending material does not necessarily lead to a conclusion that the provision of the relief sought would be futile’.^[23] The disruption lies in the direct challenge to the understanding of the scope of judicial power that is ingrained in our legal culture. It is increasingly well-understood that the architecture of the internet makes it hard for any branch of government – including the judiciary – to control the flow of information.^[24] Media law concepts, like the ‘futility’ of an order departing from open justice, are forced to adapt to this reality.^[25] When the internet rails against suppression orders so vigorously,^[26] the broader objective of open justice – the maintenance of public confidence in the judiciary – is undermined. As attitudes change with the technology, far fewer orders departing from open justice will be strictly ‘necessary’ or ‘desirable’. Legal institutions must adapt.

THE ‘FAIR’ TRIAL IN THE DIGITAL ERA

One such institution is the jury trial. The impact of the internet on juries, and its role in facilitating prejudicial publicity, has been thoroughly discussed by commentators.^[27] It was the subject of attention from the former Standing Council on Law and Justice.^[28] The basic idea is that juries should decide cases on the basis of the evidence before them, and not on the basis of what they find through Google News or Facebook.^[29]

The debate continues over what should be done about jurors’ exposure to information online. The traditional solution is a direction to the jury. In Dupas v R,^[30] a serial killer sought to undo a murder conviction by appealing to the substantial publicity that surrounded him and his previous crimes. In finding that the publicity would not preclude a fair trial, the High Court held that the trial judge’s directions relieved the potential for jury prejudice.^[31]

Another solution is to do away with juries in favour of judges as arbiters of fact. Jurors can, and sometimes do, ignore directions.^[32] Exposure to publicity can have a significant impact on juror decision-making.^[33] It might be argued that judicial experience makes one better at behaving impartially and better at turning a blind eye. However, recent work by McEwen and Eldridge appeals to empirical legal scholarship in challenging this argument.^[34] The research suggests that judges may be just as fallible as jurors.

The technology itself is not causing these difficulties – it is human nature to be curious about these sorts of things. Rather than maintaining the fiction that jurors will comply with directions to disconnect, perhaps courts should accept that they will not and adapt their principles. Whether or not this occurs, in a world of mobile devices, the 24-hour news cycle, and social media addictions, the nature of the ‘fair’ trial is already changing. So is democracy.

‘FAKE NEWS’ AND ‘ALTERNATIVE FACTS’ ABOUT LAW

Attacks on the mainstream media were a core part of Donald Trump’s presidential campaign. His jabs at so-called ‘fake news’ have continued into his presidency. When media reports of his inauguration ceremony did not align with Trump talking points, Kellyanne Conway spoke of the administration’s ‘alternative facts’. NBC journalist Chuck Todd retorted, ‘Alternative facts are not facts. They’re falsehoods.’^[35]

The newsmedia does not have a monopoly on the truth, and clearly, neither does a head of state. Does the judiciary? In Australian courtrooms, judges have purported to influence the account of the court proceedings that is consumed by the general public, to varying degrees of success.

Courts often publish media releases on matters of significant public interest. For example, in December 2016, the Supreme Court of New South Wales tweeted a link to a summary of the decision to sentence Eddie Obeid to five years imprisonment for wilful misconduct in public office.^[36]

In other cases, the judgments themselves have been framed to influence reporting. In the baby Gammy case, an Australian couple entered into a commercial surrogacy arrangement with a Thai woman. As a result, twins were born in Thailand. The baby girl was brought to Australia, but her twin brother, Gammy, was not. It was widely and falsely reported that the couple had abandoned baby Gammy because he had Down syndrome. In Farnell v Chanbua, Thackray CJ criticised the media and clarified that those reports were untrue.^[37] The Court departed from usual family court practice and allowed publication of the details of the case, subject to strict conditions. Media outlets were permitted to publish the story only if they did not contact any of the persons involved, and were only able to use file footage as part of any story.

It is easier for courts to control what is not published, as opposed to what is published. Inertia favours reporting bad news: as Gleeson CJ once observed, a bridge collapse is news, but a bridge that remains standing is not.^[38] When sensationalist coverage is disseminated online, it encourages contrarian commentary by the general public via social media. Writing extra-judicially, Chief Justice Marilyn Warren AC described the vitriol of anonymous comments on an ABC story on the ‘Malaysia solution’ case.^[39] She observed that a story can take on a life of its own online, which might perpetuate misunderstanding of the role of courts by the general population.^[40] Online anonymity is a barrier to the courts combating ‘alternative facts’ about law.

A free press is essential to our democracy, and so courts should not be positively directing journalists what to write. The same can be said for anonymous keyboard warriors. Courts might legitimately intervene where a report is not fair and accurate,^[41] but only in the absence of other competing public interests, not where the report amounts to a comment on the facts.^[42] The law will not protect ‘alternative facts’, but it will support alternative commentary. Some courts are moving proactively and utilising technology to encourage more constructive commentary.

THE EVOLUTION OF ‘PUBLIC’ PROCEEDINGS

Advances in technology have made it possible for the courts to engage directly with the community without relying on newsmedia organisations, changing what it means for courts to sit ‘in public’. Since 2013, the High Court has published audio-visual recordings of its proceedings on its website,^[43] following the practice of courts around the world.^[44] Similarly, it is standard practice for superior courts to publish their full judgments and sentencing remarks online, working together with institutions like AustLII.

Judges differ on whether the expansion of open justice is desirable. Before joining the High Court, Justice French articulated the legitimate concerns that broader coverage could negatively impact those participating in proceedings, and could even undermine the public confidence that open justice is supposed to serve.^[45] Average citizens are unlikely to read an entire judgment, even in respect of cases that are of interest to them; mainstream media would only take soundbites of recorded proceedings that serve their story. These concerns are an impediment to more open justice. For example, in R v Williams, an application to film Carl Williams’ sentencing was rejected out of concern that coverage would not present an accurate, impartial and balanced account of the proceedings.^[46]

Some courts are adapting to encourage balanced reporting by making the law more intelligible to laypersons. The move to plain English is an older example of this, as is the trend towards judges providing introductions to and summaries of reasons.^[47] More recently, courts like the Supreme Court of New South Wales have created a social media presence to disseminate matters of public interest.

If the relationship is there, the media can be an ally in the courts’ mission to engage with the public.^[48] A number of Australian jurisdictions, including South Australia, Victoria and Western Australia, are allowing journalists to broadcast coverage of court proceedings in real-time via social media like Twitter. Moves like these make our judicial processes more transparent, building the public confidence on which the courts depend for their authority.^[49]

In the 1980s, Justice Kirby commented on the judicial aversion to broadcasting court proceedings. He said that people would grow impatient at ‘adherence to the old technology of information’.^[50] The technology has changed, but the impatience remains. When public impatience manifests online, it can undermine judicial control and traditional approaches to the principle of open justice. If courts adapt their approach and make the most of the technology, they can undermine the ‘alternative facts’ of the trolls. They can expand open justice in a way that serves the ends of the principle, while catering for the realities of our time.

Michael Douglas is a Lecturer at the University of Sydney Law School, researching private international law and media law. EMAIL [e-mail].

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^[1] Terry v Persons Unknown [2010] EWHC 119, [106] (Tugendhat J).

^[2] [2011] HCA 4; (2011) 243 CLR 506 [20].

^[3] See her Honour J Gibson, ‘Judges, Cyberspace and Social Media’ (2015) 12 The Judicial Review 237, 246-7.

^[4] Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109, 183 (Donaldson MR); Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781, [5] (Einstein J).

^[5] See, eg, Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153, 164 (Malcolm CJ).

^[6] The Hon Chief Justice W Martin, ‘Freedom of the Press and the Courts’ (Speech delivered at the Judicial Conference of Australia Colloquium 2015, Adelaide, 9 October 2015).

^[7] L J Moran, ‘Mass-Mediated “Open Justice”: Court and Judicial Reports in the Press in England and Wales’ (2014) 34(1) Legal Studies 143.

^[8] The Honourable JJ Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ [2006] UNSWLawJl 19; (2006) 29(2) University of New South Wales Law Journal 147, 166.

^[9] C M Christensen and J L Bower, ‘Disruptive Technologies: Catching the Wave’ (1995) 73(1) Harvard Business Review 43.

^[10] C M Christensen, M Raynor and R McDonald, ‘What is Disruptive Innovation?’ (2015) 93(12) Harvard Business Review 44; C M Christensen, M Raynor and R McDonald, ‘The Disruption Debate’ (2016) 94(3) Harvard Business Review 16.

^[11] For Christensen, the rise of ADR mechanisms like arbitration might be a better subject for a title like ‘Disrupted Justice’.

^[12] See generally M Douglas, ‘The Media’s Standing to Challenge Departures from Open Justice’ [2016] AdelLawRw 4; (2016) 37 Adelaide Law Review 69; Australian Law Reform Commission, ‘8. Fair Trial – Open Justice’, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Report No. 129 (2016) 231-7.

^[13] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288, 296 [33] (McLure P).

^[14] See, eg, R Ackland, ‘Wikileaks Gag Order: Open Justice is Threatened by Super Injunctions’, The Guardian (online), 30 July 2004 <https://www.theguardian.com/commentisfree/2014/jul/30/wikileaks-gag-order-open-justice-is-threatened-by-super-injuctions>; R Burd, ‘Is There a Case for Suppression Orders in an Online World?’ (2012) 17 Media and Arts Law Review 107; D Barnfield, ‘Effectiveness of Suppression Orders in the Face of Social Media’ (2011) 33(4) Bulletin 16; cf I F Buckley, ‘In Defence of “Take-Down” Orders: Analysing the Alleged Futility of the Court-Ordered Removal of Archived Prejudicial Publicity’ (2014) 23 Journal of Judicial Administration 203.

^[15] [2015] VSC 246.

^[16] Ibid, [80].

^[17] J Bosland, ‘Wikileaks and the Not-So-Super Injunction: The Suppression Order in DPP (Cth) v Brady’ (2016) 21 Media and Arts Law Review 34, 58-9.

^[18] Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513, 525; see generally N Witzleb, ‘Equity Does Not Act in Vain: An Analysis of Futility Arguments in Claims for Injunctions’ [2010] SydLawRw 22; (2010) 32(3) Sydney Law Review 503.

^[19] Cf Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109.

^[20] See above note 17, 58.

^[21] PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2012] HCA 33; (2012) 247 CLR 240, 247 [16] (French CJ and Gummow, Hayne and Crennan JJ).

^[22] Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548, 564 (Mason and Deane JJ).

^[23] [2011] NSWSC 1102, [44] (Price J).

^[24] On this idea, note the work of Lessig, eg Lawrence Lessig, ‘Code is Law: On Liberty in Cyberspace’, Harvard Magazine (online) (1 January 2000) <http://harvardmagazine.com/2000/01/code-is-law-html> .

^[25] See I F Buckley, above note 14.

^[26] For example, B Keane, ‘Finally, Court Lifts Absurd Securency Injunction’, Crikey (online) (15 July 2015) <https://www.crikey.com.au/2015/07/15/finally-court-lifts-absurd-securency-injunction/>.

^[27] For example, L Findlay, ‘Courting Social Media in Australia’s Courtrooms: The Continuing Tension between Promoting Open Justice and Protecting Procedural Integrity’ (2015) 27(2) Current Issues in Criminal Justice 237; L Bartels and J Lee, ‘Jurors Using Social Media in Our Courts: Challenges and Responses’ (2013) 23 Journal of Judicial Administration 35; R Burd and J Horan, ‘Protecting the Right to a Fair Trial in the 21^st Century – Has Trial by Jury Been Caught in the World Wide Web?’ (2012) 36(2) Criminal Law Journal 103; J Barrett, ‘Open Justice or Open Season? Developments in Judicial Engagement with New Media’ (2010) 11(1) Queensland University of Technology Law and Justice Journal.

^[28] Standing Council on Law and Justice (SCLJ), Communiqué (5 October 2012) <http://webarchive.nla.gov.au/gov/20141215114059/http://www.lccsc.gov.au/sclj/archive/former_sclj/communiques/2012_communiques.html> .

^[29] For discussion of the principles, see The Hon Chief Justice M Warren, ‘Open Justice in the Technological Age’ [2014] MonashULawRw 5; (2014) 40(1) Monash University Law Review 45, 53-6.

^[30] [2010] HCA 20; (2010) 241 CLR 237.

^[31] Ibid, 246-7 (French CJ, and Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

^[32] For example, R v K [2003] NSWCCA 406; (2003) 59 NSWLR 431; R v Benbrika (Ruling Nos 35.01-35.11) [2009] VSC 142.

^[33] N Mehrkens Steblay et al, ‘The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review’ (1999) 23(2) Law and Behaviour 219.

^[34] R McEwen and J Eldridge, ‘Judges, Juries and Prejudicial Publicity – Lessons from Empirical Legal Scholarship’ (2016) 41(2) Alternative Law Journal 110.

^[35] See P McGeough, ‘Alternative Facts, Fake News and Trump’s War on Mainstream Media’, The Sydney Morning Herald (online) 23 January 2017 <http://www.smh.com.au/world/alternative-facts-fake-news-and-trumps-war-on-mainstream-media-20170122-gtwmdl.html> .

^[36] R v Obeid [2016] NSWSC 1815; see NSW Supreme Court, Twitter (15 December 2016) <https://twitter.com/NSWSupCt/status/809211607389609984>.

^[37] [2016] FCWA 17, [50].

^[38] The Hon Chief Justice M Gleeson AC, ‘Public Confidence in the Courts’ (Speech delivered at the National Judicial College of Australia, Canberra, 9 February 2007) 13-14.

^[39] Plaintiff M70/2-11 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144.

^[40] See above note 30, 52.

^[41] Cf Defamation Act 2005 (NSW) s29.

^[42] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512; cf [2007] HCA 60; (2007) 232 CLR 245, 262 (Gummow, Hayne and Heydon JJ).

^[43] High Court of Australia, Recent AV recordings (2017) <http://www.hcourt.gov.au/cases/recent-av-recordings> .

^[44] For example, the Supreme Court of the United Kingdom: Supreme Court, Supreme Court Live (2017) <https://www.supremecourt.uk/live/>.

^[45] Justice RS French, ‘Radio and Television Broadcasting in the Magistrates Courts – Is There a Future?’ (Speech delivered at the Association of Australian magistrates’ Conference, Fremantle, 10 January 2006).

^[46] [2007] VSC 139.

^[47] See above note 46, [39].

^[48] See S 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.

^[49] See further L Findlay, ‘Courting Social Media in Australia’s Courtrooms: The Continuing Tension between Promoting Open Justice and Protecting Procedural Integrity’ (2015) 27(2) Current Issues in Criminal Justice 237.

^[50] M Kirby, ‘The Judges’ (The Boyer Lectures, ABC Radio, 1983).