Abstract
The principle of open justice underpins the trial procedures of common law systems but is subject to exceptions, including name suppression orders that in the main seek to ensure trials are fair. A degree of tension between the judiciary and the media is inevitable when publication of information is prohibited or postponed, but a relationship of interdependence tends to subsist between the courts and traditional media. The emergence of new media has disrupted the status quo, challenging both the traditional media's unique news publication capacity and the courts' practical ability to suppress information. This article focuses on the potential for juries being adversely influenced by digital information extraneous to the trial process, and is structured as follows: relevant principles are identified; the relationship between traditional media and the courts, and impact of new media are then outlined; responses to the challenges presented by new media follows, and conclusions are drawn. The article draws on Australasian precedent, in particular, recent developments in New Zealand case law and legislation relating to information suppression.
Highlights
This article focuses on the potential for juries being adversely influenced by digital information extraneous to the trial process, and is structured as follows: relevant principles are identified; the role of traditional media and the impact of new media on judicial control of information are outlined; responses to the challenges presented by new media follows, and conclusions are drawn
Despite the challenges to curial secrecy presented by contemporary information and communication technology, Australasian courts are engaging with these challenges, albeit with varying degrees of effectiveness and plausibility
‘If courts continue to attribute to jurors the ability to put prejudicial material out of their minds, it may be expected that, over time, this will have a liberating effect on the law of contempt.’[178]. In contrast, legislative measures to criminalise curious jurors seem disproportionate
Summary
The principle of open justice underpins the trial procedures of common law systems but is subject to exceptions, such as name suppression orders,[2] that in the main seek to ensure trials. Where information is already in the public domain, generally it will not be appropriate to grant a suppression order,[5] even if that information could adversely affect jury decision-making. This article focuses on the potential for juries being adversely influenced by digital information extraneous to the trial process, and is structured as follows: relevant principles (open justice, fair trial, freedom of expression, and privacy) are identified; the role of traditional media and the impact of new media on judicial control of information are outlined; responses to the challenges presented by new media follows, and conclusions are drawn. 12 See Slater (Unreported, District Court at Auckland, Harvey J, 14 September 2010) and Slater v Police (Unreported, High Court of New Zealand, White J, 10 May 2011) in which a blogger was convicted of breaching name suppression orders. 15 Simon Mount, ‘The Interface between the Media and the Law’ [2006] New Zealand Law Review 413, 414 observes: ‘In terms of news content, the defining characteristic of the past 25 years has been greater willingness, among the electronic media, to push the traditional boundaries.’
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