Principle Of Open Justice Research Articles

Is Social Media Challenging the Authority of the Judiciary? Rethinking the Effectiveness of Anonymised and Super Injunctions in the Age of the Internet

AbstractWhile freedom of expression has a long and well-established constitutional foundation as a self-governing concept, the right to privacy is a relatively recent norm in the constitutional orientation of the United Kingdom. Until the Human Rights Act 1998, the right to privacy had little standing constitutionally. Following on from this standard-setting, notably, both rights have taken on added importance in our modern technological society. Nevertheless, the formulation of privacy into a legal doctrine of human rights seems to have presented a fundamental tension in relation to freedom of expression. As a matter of legal logic, the courts, through a consideration of the law, examine the substantive legal issues in terms of a balancing process, whereby the interest in privacy is balanced against the interest in freedom of expression. It is a matter of broad principle for the courts to rely on injunctions as ancillary instruments of equity in doing justice in this field. Significantly, while the elementary norm of an injunction is that it commands an act that the court regards as an essential constituent to justice, unfortunately, many contend that judges have gone beyond this point, and this is shifting opinions. In fact, serious concerns have been frequently expressed about the extent to which the rich are easily able to invoke the discretion of the court to grant injunctions in a fashion that remains an antithesis to the principle of open justice and also undermines the exercise of freedom of speech. While this suspicion is not entirely new to matters of procedural law, the recent case, PJS v News Group Newspapers turned on this controversy. Therefore, the aim of this paper is to examine the complexity of celebrity privacy injunctions in the age of the internet and question its relevance, as we outline the extent to which social media is challenging the authority of the state (judiciary) in this direction.

Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics

This article explains a collaborative and critically reflective journalism research project stemming from the wish of an incarcerated forensic mental health patient to be named in public communication about his case. The authors are academics and journalists who embarked upon a combination of journalism, legal processes and academic research to win the right to name Patient A in a radio documentary and in academic works—including this journal article and research blogs. As a case study, it explains the theoretical and ethical considerations informing the journalism and the academic research, drawing upon traditions of documentary production, the principle of open justice and the ethical framework of ‘mindful journalism’. It concludes by drawing lessons from the project that might inform future practitioners and researchers embarking upon works of journalism and research involving vulnerable people and a competing set of rights and public interests.

Homeland: The Development of the Principle of Open Justice to Protect South Africans from Abuse of their Asylum System

Homeland: The Development of the Principle of Open Justice to Protect South Africans from Abuse of their Asylum System

Legal Ethics and the Media: Are the Ethics of Lawyers and Journalists Irretrievably at Odds?

Descriptions of the relationship between lawyers and journalists range from ‘uneasy’ and ‘sometimes prickly’ to ‘strained and often combatant’. This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles that guide lawyers’ interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist’s lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. This the pre-edited version of this article published under the same title in 'Legal Ethics', Volume 15, Part 1 (Hart Publishing, 2012) which has been published in final form at: Ingenta Connect

OPEN JUSTICE OR OPEN SEASON? DEVELOPMENTS IN JUDICIAL ENGAGEMENT WITH NEW MEDIA

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.

Legal Ethics and the Media: Are the Ethics of Lawyers and Journalists Irretrievably at Odds?

Descriptions of the relationship between lawyers and journalists range from ‘uneasy'1 and ‘sometimes prickly'2 to ‘strained and often combatant’.3 This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles that guide lawyers’ interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public.

Does the Open Justice Principle Require Cameras to be Permitted in the Courtroom and the Broadcasting of Legal Proceedings?

Does the Open Justice Principle Require Cameras to be Permitted in the Courtroom and the Broadcasting of Legal Proceedings?

Open justice, the media and reporting on preventive supervision and detention orders imposed on serious sex offenders in Victoria

This article is concerned with the extent to which the media should be able to report judicial proceedings in which Victorian courts are asked to make supervision or detention orders in respect of sex offenders who have completed their custodial sentence, but who are regarded as posing an unacceptable risk of re-offending. After describing the nature and purpose of the supervision and detention regimes, the article critically examines the reporting provisions that were contained in the Serious Sex Offenders Monitoring Act 2005 (Vic), which fi rst introduced the notion of preventive supervision in Victoria, and compares them with the reporting provisions that are contained in the recently enacted Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). Particular regard is paid to the principle of open justice, which ordinarily entitles the media to publish information about judicial proceedings, including names. The article also identifies several procedural hurdles which confront media organisations that wish to challenge suppression orders made under the scheme. Finally, the article makes some tentative observations about whether these publication regimes are compatible with Victoria's Charter of Human Rights and Responsibilities.

The Sins of the Media: The Sabc Decision and the Erosion of Free Press Rights

In South African Broadcasting Corporation Ltd v National Director of Public Prosecutions, the Constitutional Court of South Africa dismissed an appeal against a decision of the Supreme Court of Appeal (SCA) denying the national public broadcaster the opportunity to record and broadcast proceedings of a five-day criminal appeal. The majority of the Court held that the SCA’s exercise of discretion (including the formulation of a legal test) could only be interfered with if it was a ‘demonstrable blunder.’ Not only did the majority fail to appreciate that, for sound constitutional reasons, no deference ought to be due to the SCA’s decision, it granted more than the usual deference by making use of a novel ‘demonstrable blunder’ standard. Though some of the possible reasons underlying the majority’s use of this new form of appellate review (including a fear that full media access might trivialise the court processes) may have been understandable, such reasons were either legally irrelevant or untenable. The SABC decision is part of a trend whereby the courts and the legislature, often dismayed by incidents of apparent unprofessional conduct by the media, have progressively eroded the constitutional right to a free press. This disquieting trend is based on a misunderstanding of the role of a free press in a constitutional democracy and could ultimately serve to exacerbate any lack of adequate press coverage of the government and the judiciary. Nevertheless, a proper understanding of the ‘open justice principle,’ recognised by the Constitutional Court in SABC as a constitutional imperative, represents a potential solution to the observed diminution of free press rights.

Achieving the Aims of Open Justice? The Relationship Between the Courts, the Media and the Public

This article begins by outlining what the principle of open justice is intended to achieve. It then investigates the nature of the relationship that exists between the courts and the media, and between the media and the public, and suggests that these relationships are not always conducive to realising the aims of open justice. While the reporting role of the traditional news media will undoubtedly persist, at least for the foreseeable future, it is argued that, since courts now have the means to deliver to the public a fuller and truer picture of their work than the media can, they should seize the opportunity to do so.

The Reporting of Crown Court Proceedings and the Contempt of Court Act 1981

Ever since the enactment of the Contempt of Court Act 198 1, concern has been expressed’ about the use of orders under sections 4 and 11 restricting the media’s ability to report court proceedings in accordance with the principle of open justice.* However, the absence of any empirical survey of these orders has hampered a proper evaluation of their worth. This article seeks to elucidate the operation of reporting restrictions at Crown Court level by presenting and analysing the results of a survey of nine Crown Courts during the period 1982-89. The findings are prefaced by an exposition of the legal framework.