Media Freedom and Contempt of Court

Eric Barendt

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351558662
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

The essays discuss the restrictions imposed by contempt of court and other laws on media freedom to attend and report legal proceedings. Part I contains leading articles on the open justice principle. They examine the extent to which departures from that principle should be allowed to protect the rights of parties, in particular the accused in criminal proceedings, to a fair trial, and their interest in being rehabilitated in society after proceedings have been concluded. The essays in Part II examine the topical issue of whether open justice entails a right to film and broadcast legal proceedings. The articles in Part III are concerned with the application of contempt of court to prejudicial media publicity; they discuss whether it is possible to prevent prejudice without sacrificing media freedom. Another aspect of media freedom and contempt of court is canvassed in Part IV: whether journalists should enjoy a privilege not to reveal their sources of information.

Part I
The Open Justice Principle

[1]

Courts, Transparency and Public Confidence – To the Better Administration of Justice

THE RIGHT HONOURABLE BEVERLEY MCLACHLIN, P C*

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.¹

I INTRODUCTION

The words are those of 19^th Century English Philosopher Jeremy Bentham, warning against secrecy in the administration of justice. These words are as true and relevant today as they were when they were uttered well over a century ago. The open court principle is thus a fundamental element of the law of many countries including Canada², the United Kingdom³, the United States⁴, Australia⁵ and New Zealand⁶. In these countries, openness is a principle of constitutional significance.⁷ Internationally, it has also been recognised as a norm of great importance. For example, Article 14 of the International Covenant on Civil and Political Rights guarantees the right to a public hearing in both criminal and civil matters.⁸ Openness signifies that the public and the press have free access to the courts of justice and are entitled to attend and observe any hearing. It signifies that court records and documents are available for public examination. The rule of openness entails that reasons for judgment are public and, therefore, subject to the scrutiny of the parties, the media, the bar, legal scholars and, ultimately, the populace. And, under the open courts principle, the public and the press may freely discuss and publish accounts of court proceedings, hearings, examinations and decisions.

Much has changed since Bentham’s time. The courtroom scene, however, remains remarkably similar. An observer from the 19^th Century would have no difficulty recognising the players in the modern courtroom. Behind the bench sits the judge. At the counsel table sit the lawyers. The witness sits in the witness box and the parties listen from pews behind the bar. Sometimes members of the public, perhaps people with a special interest, perhaps casual observers, join the parties in the audience. And occasionally, usually in the public seats but sometimes at a special bench to one side, one finds a member of the press. This is how things were in Bentham’s time, and this is how, by and large, they remain.

Yet, although we cannot see it, something has changed in the courtroom scene – and changed profoundly. In the old days, only those who bothered to attend the court and the class of literate newspaper readers followed court proceedings. While in principle, most courts were open to the public, as a practical matter they were closed to all but those who attended or read the papers. Today, television and the Internet have expanded the audience of court proceedings exponentially. At the flick of a button or the press of a key, virtually anyone can tune into the courtroom world. Courtroom drama has become a mainstay of the 6 o’clock suppertime news, and is there to greet us when we rise in the morning.

The technological advances of recent decades have put new pressures on the open court principle and have created new dilemmas for the courts, the media and the public. The open courtroom remains as essential today as it was in Bentham’s time. Yet the omnipresent and immediate reach of modern dissemination networks makes it increasingly apparent that openness may exact costs – costs that require judges and the media to reassess the means by which they further the principle of open justice. How, in the face of mass dissemination, can we preserve the right to privacy of litigants and witnesses? How, in the face of immediate dissemination of police information, can we preserve the right to a fair trial by an impartial jury? And how, in the face of the attraction of sensationalisation, can we ensure that the public obtains a balanced and accurate impression of how the justice system functions? These are questions of fundamental importance for the justice system and, more broadly, for society as a whole. If we care about justice and our society, we should consider them. In the balance of this article I propose first to briefly examine these questions, exploring in more detail the harms that may be the unintentional costs of the open court in the modern age of technology. I will then turn to the open court principle with a view to establishing the core values it represents and distinguishing them from more peripheral concerns. Finally, I will attempt to build on the conclusions of these inquiries and suggest how judges can act to preserve the open courts principle without sacrificing privacy, justice and balance. I will suggest that the answer lies first, in recognising the tensions that exist between the open court principle on the one hand and the interests of privacy, justice, avoidance of sensationalism and security on the other hand; and second, in working out the appropriate balance contextually as issues arise — all for the better advancement of justice.

II ‘Costs’ of Open Justice

A Privacy

The first cost of the open court principle is to privacy. When a matter is submitted to the courts of justice, the parties cannot expect that the details of their dispute shall remain private. Traditionally, the courts have indicated that the embarrassment that results from having one’s affairs subjected to public viewing is an insufficient justification for curtailing the openness of court proceedings.⁹ Under the open courts principle, the public may attend any court hearing, consult any court document and examine any judgment, regardless of whether intimate or embarrassing details of one’s life would thereby be revealed. Openness comes, therefore, at a cost to privacy.

That cost is not negligible. The right ‘to be let alone’¹⁰ and to define a protected sphere of individual autonomy within which neither one’s neighbours nor the state can intrude without permission, is an important aspect of fundamental human dignity. In Canada, as in other countries, we have come to recognise that the right to privacy has constitutional dimensions.¹¹ The facility with which modern media and communication networks can intrude into people’s lives has increased our awareness of the importance of our interest in privacy. In the past, technical barriers to the mass collection and distribution of information offered limited but effective protection of the privacy of participants in the justice system. Now that protection has disappeared.

In Bentham’s day, the open court principle meant limited loss of privacy. In the era of 21^st century technology, it can mean an enormous loss of privacy. More and more, parties and witnesses protest that their legitimate expectations of privacy are being trampled on and their lives and reputations damaged by the open court principle. Recognising the potentially embarrassing and sometimes damaging nature of the publicity that may attend judicial proceedings, they are increasingly seeking to limit the application of the open court principle. Courts are consequently seeing an ever-increasing number of applications for publication bans, in camera hearings and orders sealing court files to protect the privacy and reputations of those who appear as litigants and witnesses.

The law has long recognised that while the core values served by the open court principle must be respected, the principle may be limited where sensitive privacy concerns arise. For many years, courts have uncontroversially protected the privacy right of litigants in disputes involving trade secrets on the ground that the revelation of the secrets in open court would defeat the very purpose of seeking recourse to justice. More recently, we have come to recognise the importance of protecting the privacy of victims of sexual abuse. The concern here is both in...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THE OPEN JUSTICE PRINCIPLE
• PART II CAMERAS IN THE COURT-ROOM
• PART III PREJUDICIAL MEDIA PUBLICITY
• PART IV JOURNALISTS’ PRIVILEGE NOT TO REVEAL SOURCES
• Name Index