How technological change is expanding open justice
26th Apr 2018
Today, open justice is mediated not only by mass media, but by social media too. 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.
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. They do so to balance competing public interests. Commentators have questioned whether orders departing from open justice can be effective in an online world.
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 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, Melbourne academic Jason Bosland argues that it cannot be denied that the decision has that potential. 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. 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.
THE ‘FAIR’ TRIAL IN THE DIGITAL ERA
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, 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.
Another solution is to do away with juries in favour of judges as arbiters of fact. Jurors can, and sometimes do, ignore directions. Exposure to publicity can have a significant impact on juror decision-making. 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. The research suggests that judges may be just as fallible as jurors.
‘FAKE NEWS’ AND ‘ALTERNATIVE FACTS’ ABOUT LAW
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.
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. 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. 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. 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. Online anonymity is a barrier to the courts combating ‘alternative facts’ about law.
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, following the practice of courts around the world. 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. 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.
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. 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. 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.
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’. 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.
A longer version of this article was first published as ‘Disrupted Justice: How Technological Change is Expanding Open Justice’ (2017) 139 Precedent 10.
Michael Douglas is a Senior Lecturer at UWA Law School, where he specialises in private international law and media law. He is a Consultant at Bennett + Co within the firm’s commercial litigation and dispute resolution practice, editor of the Media and Arts Law Review, and reporter for the New South Wales Law Reports.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
 L J Moran, ‘Mass-Mediated “Open Justice”: Court and Judicial Reports in the Press in England and Wales’ (2014) 34(1) Legal Studies 143.
 The Honourable JJ Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147, 166.
 See generally M Douglas, ‘The Media’s Standing to Challenge Departures from Open Justice’ (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.
 Re Hogan; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288, 296  (McLure P).
 See, eg, R Ackland, ‘Wikileaks Gag Order: Open Justice is Threatened by Super Injunctions’, The Guardian (online), 30 July 2004
  VSC 246.
 Ibid, .
 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.
 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) 32(3) Sydney Law Review 503.
 Cf Attorney-General v Guardian Newspapers (No. 2)  1 AC 109.
 (2010) 241 CLR 237.
 Ibid, 246-7 (French CJ, and Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
 For example, R v K (2003) 59 NSWLR 431; R v Benbrika (Ruling Nos 35.01-35.11)  VSC 142.
 N Mehrkens Steblay et al, ‘The Effects of Pretrial Publicity on Juror Verdicts: A Meta-Analytic Review’ (1999) 23(2) Law and Behaviour 219.
 R McEwen and J Eldridge, ‘Judges, Juries and Prejudicial Publicity – Lessons from Empirical Legal Scholarship’ (2016) 41(2) Alternative Law Journal 110.
 R v Obeid  NSWSC 1815; see NSW Supreme Court, Twitter (15 December 2016)
  FCWA 17, .
 Plaintiff M70/2-11 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
 See above note 11, 52.
 High Court of Australia, Recent AV recordings (2017)
 For example, the Supreme Court of the United Kingdom: Supreme Court, Supreme Court Live (2017)
 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).
  VSC 139.
 Ibid, .
 See S Rodrick, ‘Achieving the Aims of Open Justice: The Relationship Between the Courts, the Media and the Public’ (2014) 19(1) Deakin Law Review 123.
 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.
 M Kirby, ‘The Judges’ (The Boyer Lectures, ABC Radio, 1983).