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Open justice in the technological age

In the 2013 Redmond Barry Lecture, the Hon Chief Justice Marilyn Warren AC discusses changes to the traditional relationship between the courts and the media in recent times, and the trend towards direct court engagement with the community to ensure accountable and open justice in the digital world.

The Hon Marilyn Warren is the Chief Justice of Victoria. In her ten years in that role she has adopted a number of innovative approaches to promoting openness and accessibility in the Victorian justice system, including the development of a Supreme Court communications strategy and reform of the court’s civic engagement.

This Redmond Barry Lecture was held on 21 October 2013.

Transcript

Introduction

The concept that justice must be done and must be seen to be done is a fundamental tenet of Australian democracy. Historically, this meant that most court rooms, most of the time, were open to the public. In reality, for most of the last half century, relatively few members of the public have used that open door and court reporters have acted as the intermediary between the justice system and the wider community. With the rise of new media technologies the traditional methods of guaranteeing open justice for the community are rapidly changing. Open justice now increasingly means the ability of the community to access information about the courts through the internet and social media. There are implications from this development for the traditional relationship between the courts and the media. There are challenges driving the courts towards direct community engagement in order to preserve the operation of open justice.

Open justice in legal and political theory

The rationale behind the concept of open justice is an important democratic and constitutional principle. Nineteenth-century English philosopher Jeremy Bentham was among the first to articulate a theoretical basis for what he called the ‘sturdy’ English tradition of holding court proceedings in public and for what we now call ‘open justice’. Deeply suspicious of the only arm of democratic government not to be held publicly accountable through elections, Bentham championed the practice of open courts as an important check on the performance of judges. He reasoned that judges would only act in a fair, unbiased and just manner if their actions were subject to public review and criticism. He wrote:

Environed as he sees himself by a thousand eyes, contradiction, should he hazard a false tale, will seem to rise up in opposition to it from a thousand mouths…without publicity, all other checks are fruitless.

Bentham also suggested that ‘publicity’ prompts judges to educate themselves in the prevailing ‘public morality’ so as to avoid public accusations of incompetence. For Bentham, it was therefore ‘publicity’, or open justice, that raised the quality of justice dispensed by judges and in turn made the judiciary worthy of its standing as a democratic institution.

Australian and English jurisprudence has made this link between open justice and the legitimacy of the judiciary as a democratic institution more explicit. Lord Atkinson emphasised that the public trial was the ‘best security’ for winning public confidence in the impartiality and efficiency of the justice system. The High Court of Australia has said that open justice is an essential aspect of the constitutional character of the courts and ‘tends to maintain confidence in the integrity and independence of the courts’.

Because the courts are a branch of democratic government, and openness is a fundamental feature of democracy, public access to court proceedings is a basic democratic right which the courts should actively support. Secondly, public confidence is vital to the legitimacy of the judiciary as an institution and to the maintenance of the rule of law. Public confidence is important to the judiciary because judges are separate from the Parliament and the Executive – the government of the day. The community cannot simply remove judges they are unhappy with through the ballot box. Thus, the authority of the judicial branch is based on public confidence in the ability of judges to uphold the rule of law in an objective and impartial manner, free from outside influence. In order to be convinced of the probity of the actions of judges, the public must be able to observe and understand the judicial process. It is therefore the duty of judicial officers to maintain public confidence in the institution of the judiciary by facilitating access to information about courts and court proceedings.

These two fundamentals – openness and public confidence – are the starting point and the purpose of the court’s relationship with the media. They also underpin and drive reform of the court’s relationship with both the media and the community. Faced with declining dedicated traditional media coverage and intense public scrutiny under the gaze of interactive and fast-paced new media forums, the courts have found it necessary to develop strategies of direct community engagement to preserve both open justice and public confidence in the judiciary.

New media

It is probably stating the obvious to say that we are in the midst of a communications revolution. Internet accessibility has increased to an average of 28.7 per cent globally, representing more than a 400 per cent increase in the last ten years. Not only are computers commonplace but we can tweet, blog, text, participate in online forums, and receive alerts and emails on our iPhones and tablets. Nationally, the number of people now using smart phones to access social media increased to 67 per cent (up from 53 per cent in 2012) while the use of tablets to access social networks almost doubled nationally from 18 percent in 2012 to 35 per cent this year.

The decentralisation of the press into a variety of new media forums is starting to have a noticeable effect on the circulation and revenues of traditional print and television media. Newspapers in particular have a declining and ageing readership as younger viewers seek online content through Twitter and online news sites.

In 2011, The Age had over 197,000 weekday newspaper subscriptions. Today The Age weekday newspaper circulation stands at just over 142,000. The Age Twitter account has over 150,000 followers. The weekday Herald Sun has circulations figures of just over 416,000 and the Herald Sun Twitter account has just over 62,000 followers. Reduced circulation figures have led to  redundancies and restructures at newspaper outlets.

What constitutes open justice is now moving away from the ability of a citizen to sit in a court or read a newspaper or view the television news. The courts must look to new media forums if they are to reach a wider cross section of the community and effectively inform them about the justice system.

The citizen journalist

There is likely to be a number of consequences stemming from this shift towards new media for the traditional relationship between the courts and the media. It seems likely that the courts will lose some if not eventually all of the expertise of dedicated newspaper court reporters. At the beginning of 2012, the ABC halved its court coverage commitment to one reporter. Also in 2012, very senior and experienced legal affairs reporters at The Age and Herald Sun retired. There are now very limited numbers of specialist legal affairs reporters.

At the same time the ubiquitous nature of portable digital devices has given every citizen the opportunity to publish information. These ‘citizen journalists’ are able to blog or tweet about court cases or post a message on Facebook. They might write for a private online publication or simply enjoy stimulating debate on their own personal blogs and social media sites.

Characteristics of social media

There are a number of common characteristics of the new media that distinguish its product from traditional journalism. One of the key differences between the traditional court reporter and the citizen journalist is that the citizen journalist is unlikely to be subject to any form of editorial control or commercial pressures and is most probably not bound by any ethical code. Typically, the citizen journalist will publish their work immediately without deference to an editorial opinion regarding the newsworthiness or accuracy of the content.

Another key difference is the mode of expression used by citizen journalists. Traditional news mediums have criticised the ‘vehement’ and ‘caustic’ discourse of new media, which they claim also frequently contains factual errors and defamatory content.

Some commentators have also suggested that the internet has created an ‘anonymity problem’. Not only is the language used sometimes offensive, but there seems to be a belief among participants in online forums that any kind of information should be distributed without restraint and that the customs and etiquette of society do not apply to the digital world. Some blogs and tweets are written as if the author is having a personal chat with a friend over coffee. However, the potential audience for online content is in the millions. Moreso, once uploaded on to the internet the reach of the material is seemingly infinite.

In addition to their informal nature, new media outputs are permanent, and therefore remain searchable in the internet long after they are published. They are also often interactive and additive, so that an initial publication may be changed and added to. Furthermore, each contribution to the original content is traceable and permanent. This means the author immediately loses control of the public message as soon as a comment or tweet is posted.

The rise of new media has also been described as a process of decentralisation. Traditional media are typically associated with concentrations of persuasive influence in a limited number of corporate hands. They possess ‘immense power’ to ‘shape people’s understandings and therefore their opinions’ but they are also a well-defined and readily identifiable group. In contrast, new media actors are commonly individuals or are part of small groups. Because they are not attached to a large organisation, new media actors are essentially controllable only to the extent that their access to social media can be restricted. It is also difficult to trace the identity of online publishers and keep track of what is being said.

These changes have affected the traditional relationship between the courts and the media and in turn the court’s efforts to protect fundamental aspects of the justice system: openness, public confidence in the judiciary and the right to a fair trial.

A reduction in dedicated coverage of the courts

I will address each of these aspects in turn, starting with the challenges for the court’s traditional mode of relating with the media. With the decline in the number of court reporter roles, the courts are losing the main source of dedicated and coherent media coverage of court proceedings and justice sector matters. Court reporters have traditionally developed strong relationships with court media liaison officers in order to gain access to information, interviews and assistance. Due to their high professionalism, experience and interest in an ongoing relationship with the courts, court reporters exercise care with the accuracy of information they publish. Court reporters are also typically assigned to particular courts for long periods of time and so build up a body of research and knowledge about the legal system. The quality of reporting produced is often very high. The court reporters are also acutely aware of the risk of contempt and compliance with suppression orders. They are familiar with the courts’ register of suppression orders.

The explosion in new media means the courts can no longer rely solely on the traditional media to interpret complex court proceedings and guarantee open justice for the public. The courts will have to devise strategies to reach the public in a more direct manner if they are to effectively implement the open justice principle.

Secondly the courts are losing personal and local connections with journalists that have a vested interest in performing a gatekeeping role over the quality and accuracy of reporting on the courts. The internet and social media attract large numbers of citizen and professional publishers on a global scale. There is the consequence that the courts are now faced with unknown entities that often have little ethical or commercial incentive to render a considered, fair and accurate report of the courts or legal issues. As the boundaries of the court-media relationship are no longer clearly defined, it has also become more difficult for courts to identify who they should engage with and how they should engage in order to deliver a targeted and coherent message to the public.

Public confidence

The court reporters and traditional media that remain are taking up new media tools and using them to complement traditional electronic and print modes of communication. Coupled with the content produced by the blogs, tweet and online comments of citizen journalists, traditional and new media are now working together to create a fast-paced, active and responsive 24-hour news cycle on high profile cases and justice sector matters.

The courts are facing more scrutiny than they ever have before. Court decisions are now constantly reviewed, questioned and critiqued by a myriad of different sources and commentators. On the face of it, this would seem to mean that new media has enabled the full and proper operation of the open justice principle. But if the purpose of open justice is to maintain public confidence in the judiciary, then the problems of accuracy and objectivity already highlighted, might hinder rather than help public understanding of the judiciary. This problem is exacerbated by the minimalist nature of some types of social media.

The social media platform Twitter limits its contributors to 140 characters a post. It is extremely difficult for journalists, whether they are professional or untrained, whether or not they are subject to editorial and ethical constraints, to reduce complex legal issues into a fair and accurate report of 140 characters. The space constraints also mean that Twitter contributors tend to focus selectively on the most sensational aspects of the story without providing any context to the sensational and sometimes inflammatory tweet. Sensationalism and selectivity in reporting of the courts is nothing new and was occurring long before the rise of social media. But Twitter does present a new challenge for the courts, especially given concerns that traditional media might focus more explicitly on the sensational elements of stories in an attempt to arrest the decline of the print and television medium.

Recently the Court of Appeal heard the appeal of Adrian Bayley against his publicised sentence for the rape and murder of Jill Meagher. Upon the Court of Appeal announcing its decision, Twitter posts stated that the Court had dismissed the appeal after only 10 minutes of deliberation. These posts were misleading and misrepresented the thorough, considered and objective nature of the judicial process.

On publishing its judgment, the Court said:

After the hearing of the application the court adjourned at the end of argument for a short period. We then announced our decision, namely refusal of the application and that we would publish our reasons at a later time. This was not an unusual course in criminal appeals, especially since the introduction of the criminal appeal reforms. The court was in a position to dispose of the application expeditiously because of the materials filed and the prior preparation and discussion of the court members during the days beforehand. After hearing argument from counsel on both sides over some time the court was in a position to determine the matter. This was a case where the applicant was sentenced to one of the sternest sentences for this type of offending. There were also questions raised by the applicant as to the construction of the Sentencing Act 1991. We were assisted by submissions from counsel on both sides. We refused leave to appeal.

Blogs and comments online regarding high-profile cases highlight the intensity of the public review of the judiciary in the technological age. There is evidence of the ‘anonymity problem’ and lack of editorial control. The Malaysia Solution case demonstrates the point. In this case, the High Court held that the federal government’s legislative solution to the asylum seeker issue was invalid. The ABC routine online report on the case attracted about 170 comments, some of which quickly descended into criticism of other commentators and the judiciary. One comment said:

Sorry but we have the courts basically saying that anyone who rocks up to Australia can waste our courts time and get legal aid…we have people smugglers using legal aid thanks to the courts…our courts are making a mockery of policy….and its time to get the courts out of the process.

Other comments sent via Twitter referred to the courts as being ‘out of touch’, arrogant or unaware of the needs of the community. This train of commentary illustrates how a story can take on a life of its own on the internet. Some of the commentary also demonstrates a lack of understanding of the role of the courts in our democracy and the independence of the judiciary from government policy making. This misunderstanding is perpetuated by the permanence and popularity of online content.

The Australian Survey of Social Attitudes conducted in 2007 supports the conclusion that the public’s knowledge and experience of the courts is quite limited. The survey shows that although the Australian community places high value on the work of the courts, it generally has low confidence in them, particularly with regards to sentencing and criminal matters. Perhaps reflecting the community’s concerns regarding sentencing decisions, the survey concluded the public has more confidence in the courts’ ability to protect the right of defendants in criminal trials than the ability to protect the rights of victims. This finding points to the need for more community education and communication on the part of the courts to explain judicial decision-making processes.

These are some of the challenges that social media and the internet have posed for the courts in educating the community about the judicial process. But the story is not entirely negative. There are a number of benefits associated with new media reporting of the courts and in particular the use of new media technologies by the courts themselves.

Opportunities for the courts

Firstly, new media forums enable a wider range of views to reach the public domain than those disseminated by the commercial media. Through the internet and websites, academics and community groups, who might not otherwise be approached by the mainstream media, are able to publish resources and information about court decisions.

Secondly, new media has increased opportunities for the courts to engage with the community directly and deliver information in an unmediated form to the public through the internet, Twitter or blogs. The opportunity for the public to see what the courts do unmediated by journalists and editors will enhance public education about the role of the judiciary. It also enables the courts to reach younger generations.

Thirdly, there are arguments that instantaneous reporting from the court room will increase accuracy of reporting and public interest in court proceedings. If journalists tweet, file or blog from the court room, they can inform the public of what occurs at court more quickly than traditional media forums. Journalists can potentially engage more public interest in court proceedings if they are given updates as events occur. This could increase the openness of and access to the courts.

A fair trial

Openness is only one aspect of maintaining public confidence. Another purpose of the open court principle is to protect trial fairness by preventing abuses of judicial authority. In countries sharing the common law tradition, trial by jury is one of the ultimate democratic protections. Paradoxically, in some cases, openness can operate to impair trial fairness by making it difficult to find an impartial jury. Pre-trial publicity about the events before the court may unfairly influence jurors in favour of or against an accused.

Courts have responded by recognising that, in some cases, the open justice system should yield to concerns of fairness. The courts therefore sometimes limit pre-trial publication of information through suppression orders.

Typically, these orders are made to ensure a fair trial. For example, if the media publish information about the prior criminal history or other criminal charges of the accused it will be prejudicial. Sometimes court information is suppressed to protect the identity of a protected witness or an undercover police officer or the disclosure of security information. There can be many other reasons such as protecting the identity of victims, often in sex cases.

The question is how the tension between concerns for both fairness and openness are to be resolved – how much and what kind of information needs to be suppressed to preserve a fair trial? In answering these questions, the courts must find a way to preserve all the values at stake to the maximum extent to ensure confidence in the justice system.

The general position is that derogations from open justice can never be a matter of routine. The court will ask the question: is there nothing that can be done to relieve unfairness to an accused from prejudicial publicity?

Where information is already in the public domain, generally speaking the courts will not grant a suppression order. Some might argue that suppression orders have 'no place in the age of the internet where information may be distributed and disseminated widely, quickly and anonymously and published for domestic reading on overseas websites'.

Yet even then, judges are divided as to when an accused person should not be put to trial because of the prejudice of publicity.

Glennon was a former priest convicted of numbers of sex offences against children in multiple trials. A radio commentator, Derryn Hinch, breached suppression orders made by courts to protect Glennon’s right to a fair trial. The Victorian appellate court split 2-1 saying Glennon was prejudiced by the publicity. On appeal to the High Court of Australia the judges split 4-3 saying Glennon was not prejudiced and his next trial could proceed.

Dupas was a serial killer who was convicted of murdering a number of women. On his last conviction he appealed asserting he had been subjected to unfair publicity covering his earlier trials for murder and rape and the circumstances of the death of the victim. There were other aspects of his appeal. He wanted his prosecution stayed or stopped forever. However, again the Court of Appeal split 2-1 on the point saying Dupas’ trial should not be stayed. One of the judges said it was an extreme case but the community could not afford to acknowledge that the media could render an accused unable to be tried. Another of the judges had confidence in jurors to distinguish ‘between evidence on the one hand, and rumour, gossip, and whatever else the media may have reported, on the other’. The judge referred to the Farraday kidnapping, the Russell Street bombing, the Walsh Street murders and other well-publicised cases to make the point ‘that it should not be too readily assumed that juries find it 'impossible' … to discharge their responsibilities …’. Otherwise the judge suggested individuals such as Jack the Ripper, Charles Manson, Ronald Biggs and even Osama Bin Laden would not face trial. Dupas appealed to the High Court and failed. The High Court spoke of the social imperative of bringing people charged with criminal offences to trial.

Yet these cases were concerned with traditional media: newspapers and television. In a short time the courts have become more robust when it comes to digital media. In 2008 a judge prohibited the broadcasting of the television programme Underbelly until a trial, about to commence, was finished. Underbelly was a dramatised, colourful entertainment about the notorious individuals said to be participants in the Melbourne gangland wars of the 1990 and 2000s. The judge also ordered that Underbelly not be broadcast on the internet. The next night a television station showed the programme across Australia but not Victoria. Once broadcast Underbelly was available on the internet and so it was available to the world, despite the Court order. General Television Corporation appealed the order. The Court of Appeal essentially continued the restriction. However, it became notorious that Underbelly could be purchased interstate or downloaded. The Court was criticised and probably regarded as naïve in trying to protect fair trials relating to individuals portrayed or implicated in Underbelly.

In 2009, a judge ordered that major media organisations take down from their websites any articles relating to Tony Mokbel until after his trial for murder. The media groups appealed. The Court split 2-1 and lifted the order. The two judges said the internet was different from the traditional media: the internet is permanent, accessible, and information can only be found by searching. The view adopted was that the internet order went far beyond what was needed to protect the right of Mokbel to a fair trial.

These cases demonstrate the changes in approaches by the courts, but also the challenges the courts face in balancing open justice and the right to a fair trial in the digital age.

Nevertheless, the courts have an obligation to find ways to protect the right to a fair trial in spite of the challenges posed by new media. The Victorian approach has been to seek control of information flowing to jurors, rather than the flow of information to the public at large. This will be the main challenge in ensuring a fair trial in the digital age. There is an increasing risk that jurors will use new media tools to research information about defendants during a trial. In the United Kingdom there has already been a case of a juror exchanging messages on Facebook with an accused during a drug trial. The juror was convicted of contempt and sentenced to eight months jail.

As younger generations join the jury pool, reliance upon the internet for information gathering can only increase. Education and clear directions to juries will be the key to addressing these issues. Some judges propose new juror instructions that specifically itemise the types of prohibited new media activities. Others have suggested asking jurors to sign written pledges to avoid internet use during trial.

The courts’ response

The courts must develop constructive strategies to engage with new technology if they are to guarantee open justice for all members of the community. Open justice in the technological age means the ability of the community to view or access information about court proceedings through the internet or social media as well as through traditional print and electronic mediums.

Historically, the judiciary does not engage with and speak to the public on controversial legal issues. This is because of the role of the judiciary as independent and impartial enforcers of the rule of law. To protect the public’s perception of an impartial judiciary, a judge cannot engage in debate about a case which he or she is hearing. Further if judges were to regularly comment publicly on social, ethical or political issues a question would arise regarding their ability to remain impartial should a similar issue arise in their courts.

However, faced with the decline in traditional and dedicated reporting of courts as well as difficulties in maintaining public confidence in the judiciary, there is growing awareness that the courts need to rethink the way in which they educate and disseminate information to the public and journalists. This not only involves a recognition that traditional media technologies have changed, but also a recognition that, with the rise of social media, community expectations of the judiciary in terms of its style of communication have also changed.

Because of the highly interactive nature of new media, the public have access to and can contribute to the public debate in ways that were previously impossible. With new media, the community has been promised a future of consultation where their concerns are heard and responded to by public figures. The traditional reticence of the judiciary to speak out in the face of criticism may be leading to the increased devaluation of the courts in the mind of the community. Community concerns addressed to the judiciary might be seen by the general public to be gaining no response.

At the community ceremony to open the 2013 Victorian Legal Year the judiciary heard from two high school students as voices of the future. They urged the judiciary to take up new media technologies and speak directly to the public about issues.

They said:

As respected members of the justice system, we hope that you can start hearing the opinions of many Australians, young and old. You all have a role in standing up for the community and setting what is right, and now you have an opportunity to hear the voices of the people that you are protecting. If we start using the technology available, hopefully the people who make our laws will become more aware of the opinions of the people they are seeking to protect.

There is momentum amongst courts globally towards using the internet to speak directly to the public. Live web-streaming of trials is viewed as a way to fill the void left by the decline in traditional court reporters. It is also a way for the judiciary to ensure the public sees an accurate account of court proceedings in an age of decentralised new media. When web-streaming is used, the community can check for themselves what transpires in the courtroom and see in reality what the judiciary actually do when they administer the law. The Supreme Court of Victoria is now web-streaming sentencing remarks in criminal trials and proceedings in selected civil cases.

Courts are also engaging with social media accounts to publish information about judgments and legal and justice sector issues. The Supreme Court of Victoria uses both Facebook and Twitter to increase public understanding about the work of the Court. Court websites are also becoming the centrepiece of the judiciary’s communication with the public. The community can now download judgment summaries, judgments and webcasts of trials and sentences on most Court websites. The Supreme Court of Victoria also has a ‘retired judge blog’ feature on its website, for which a retired judge writes a monthly blog on topical cases that have been handed down by the Court. This represents a historic shift away from traditional judicial reluctance to explain or defend judicial decisions that are made in accordance with the rule of law.

Conclusion

This shift in the communications practices of judges are symptomatic of the challenges but importantly the opportunities that new media poses for democratic institutions in the technological age. The traditions of the judiciary, including the set up of the court room and even the robes that judges wear, have changed very little over the centuries. However, the means by which courts communicate and therefore open justice has changed dramatically. There is now an expectation that open justice involves the judiciary adopting new media technologies and engaging in a direct dialogue with the community. The judiciary must find a way to meet these expectations whilst at the same time preserve the fundamental aspects of the rule of law – fairness and judicial impartiality. Otherwise the judiciary risks being left behind and trapped by their own traditions. If so the courts risk a continued decline in the basis for judicial authority – public confidence.