commentary Twitter coverage of the AFACT v iiNet trial is breathing
new life into court reporting. Thanks to ZDNet.com.au's Liam Tung and The Australian's Andrew Colley, we're watching
the case unfold live rather than having to wait for end-of-day summaries.
People are clearly engaged — "hooked"
even — comparing
it with watching a football grand final
realistically given the pace, a cricket test match.
Given this interest in what would normally be seen as a dry
Federal Court case, why don't we take the next logical step and
stream it all live to the internet, video and audio? Short answer?
It isn't allowed.
The rules that prevent live TV and radio coverage also prevent
online streaming. In NSW, section 9
of the Court Security Act (2005) forbids "recording devices" except
in very specific circumstances, and they're defined as "any device that is capable of being used to record images or
sound (or both)", including mobile phones.
Similar laws apply elsewhere. Judges can grant exceptions, but
Maybe it's time to change all that. But to do so, long-standing
fears need to be countered.
In 1935, Bruno Hauptmann, a German carpenter,
was charged with the kidnapping and murder
Augustus Lindbergh Jr, the 20-month-old son of famous US aviators
Charles and Anne Morrow Lindbergh.
The trial for what became known as "The Crime of the Century"
"Flemington [New Jersey], a peaceful town of 2500 with a one-man
police force, was simply not prepared to deal with the 64,000
sightseers and 16,000 automobiles that descended on it," wrote
Louis Seidman in the Georgetown Law Journal.
"The media and the spectators constantly disrupted court
proceedings. Elaborate telegraph equipment was installed inside the
courthouse, and although the trial judge prohibited the taking of
pictures inside the courtroom itself, his order was openly flouted.
Indeed, sound and motion picture equipment was plainly visible in
the balcony of the courtroom throughout the trial."
In a decision which remains controversial today, Hauptmann was
found guilty, sentenced to death, and went to the electric
In 1937, the American Bar Association adopted Canon 35 of its
Judicial Ethics, stating that taking photos and radio broadcasts
are "calculated to detract from the essential dignity of the
proceedings, degrade the court and create misconceptions".
Television was added to the ban in 1963 — although ABA canons have
no force in law and by 1983 some 26 US states had already
with TV coverage.
Australia's first televised court proceedings came in February
1981, when a single camera broadcast Mr D Barritt SM's findings in
the first Coronial Inquiry into the Death of Azaria
In his 1993 paper Televising Court Proceedings, Ian
Ramsay outlined the arguments against televising trials. The
presence of cameras might discourage witnesses or even prevent
people bringing their cases to court in the first place. Lawyers
would be more likely to grandstand. Television can present a
distorted view. The TV production process can be a distraction.
These fears are probably misguided. The evidence suggests
there's little behavioural change. A 1978 survey of Washington
state judges found that once they've actually participated in a
televised trial the majority (80 per cent) have a positive view.
"There was unanimous agreement that television coverage is not
of itself inconsistent with the right to a fair trial," Ramsay
Now there are cases you wouldn't want streamed. Criminal trials
where identifying the accused is part of the argument, or where
witnesses are under protection. Cases involving national security.
The particularly personal nasties of the Family Court. Anything
But AFACT v iiNet is a typical Federal Court case, not a
criminal trial. Unlike fictional courtroom dramas, it's all
documents and procedures and quoting laws and mumbling barristers
passing notes. It's a million miles from the mutant circus of Judge
Judy — although that's not
a real courtroom anyway.
Courtrooms are already fitted with microphones for
transcriptions. Video cameras are now unobtrusive and need no extra
lighting. Bandwidth gets ever cheaper, as do the means for
publishing the documents.
It's our right to watch court proceedings, to see that justice
is being done. Why should that right be limited to those who can
afford to travel and sit in a courtroom all day, or pay someone to
do it for them?