Law, Justice and Journalism

Archive for April, 2012|Monthly archive page

Court reporting in Germany

In Journalism, Law on April 24, 2012 at 3:49 pm

By Professor Lorna Woods

Of recent months, the issue of restrictions on the reporting of details in court cases has been the subject of some debate in the UK, with issues ranging from TV cameras in court through to anonymity and even super injunctions.

The UK is not alone in needing to balance the conflicting interests of public justice and freedom of expression on the one hand and other interests in the fair administration of justice and individuals’ reputational and privacy rights on the other.

This issue has come before the German courts recently in respect of a rape case involving a celebrity, in which sexual practices read out in court were then reported by a media publisher and a website operator.

The court upheld the celebrity’s claim for an injunction on the basis that, in the balancing act between freedom of expression and privacy, the reporting on the case was salacious; the sexual details reported had little connection with the alleged crime.

It is the focus on the sexual details unconnected with public interest in knowing about the crime or judicial proceedings that seem to have been fatal to the freedom of expression claim.  It seems, however, that the German appeal court distinguished the revelation of facts in court, where the numbers of people attending and hearing the evidence are limited, to the unlimited exposure in the media.

On this basis, the court held that public court proceedings did not give the press the right to report on everything that was said in court.  This distinction is unlikely to be workable in an environment where there are cameras in court, specifically if there is live broadcast.

For a more detailed note (in English) of the cases, see: the Merlin newsletter, IRIS 2012-4:1/17

“In the 21st century, open justice should be online justice”

In Events, Journalism, Justice, Law on April 3, 2012 at 7:46 pm

By Judith Townend

“In the 21st century, open justice should be online justice,” David Banisar, Article 19.

The Guardian has succeeded in its legal bid to gain access to court documents in extradition proceedings (listed at the end of this post).

The Guardian has been seeking access to documents used to justify the extradition of two Britons, Jeffrey Tesler and Wojciech Chodan, to the US. After they were sent to Texas, the pair pleaded guilty to taking part in a decade-long conspiracy to channel bribes worth $180m to Nigerian officials and politicians. (Guardian, 3.04.12)

In a judgment handed down today (Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420) the Master of the Rolls, Hooper LJ and Toulson LJ granted appeal of an Administrative court decision which dismissed the Guardian’s claim for judicial review, following a District Judge’s refusal of access to certain documents.

“Although I disagree with the reasoning of the courts below, I recognise that this decision breaks new ground in the application of the principle of open justice, although not, as I believe, in relation to the nature of the principle itself,” Toulson LJ [90].

Brid Jordan, Reynolds Porter Chamberlain LLP, who acted for the Guardian, explains

The Court of Appeal has ruled that where documents have been placed before a judge and referred to in the course of open proceedings, the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.

The campaigning organisation Article 19 made a submission in the case (embedded below) which the judgment praised for its “helpful and interesting survey of the approach which has been taken by courts in other common law countries“.

The Court of Appeal judgment comes a month on from the Centre for Law, Justice and Journalism event, Justice Wide Open. In a comment piece for the Guardian marking today’s judgment, Article 19’s senior counsel David Banisar (left) said that the CLJJ event had

…revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything; the FOIA only has limited application to the courts.

Crucially, Banisar flagged up that in the Guardian’s case,

…the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules.

He argued that taking today’s decision forward, the UK should now adopt a similar approach to the US courts – one of “proactive disclosure”.

This blog post opened with the final sentence of Banisar’s piece: In the 21st century, open justice should be online justice.” That is the central tenet of the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Age’ project, which we launched with the Justice Wide Open event on 29 February 2012. For more information please visit the project page here. A publication with contributions from the speakers at the event is forthcoming.

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Sir Nigel Rodley on General Comment 34, Article 19, ICCPR

In City University London, Comment, Events, Law on April 2, 2012 at 11:06 am

By Professor Lorna Woods

On 7 March 2012, Professor Sir Nigel Rodley of the School of Law and Human Rights Centre at Essex University and a Member of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights gave a seminar on General Comment 34 on Article 19 of the ICCPR. The following is a summary.

General comments are commentaries on the scope of the rights to which they relate. While not limited to being a summary of the decisions on that Article, they are in part based on that case law.

Originally, general comments were introduced as it was difficult to reach consensus in the country-specific reports and evaluations carried out. While concluding that observations may now be possible, in the post-cold-war environment, general comments are established and have persuasive stature.

General Comment 34 replaces General Comment 10, a much shorter document. The revisiting of the general comment was triggered by the problem of how to deal with “defamation of religion”, which had led to political tension. Rather than leave this issue as a political one, transforming the issues into technical legal questions operates to diffuse this tension.

The new general comment was adopted in the summer of 2011. The new general comment reflects a mixture of points drawn from concluding observations, case law and other elements. So this general comment is not just codification of what went before. There was no case law, for example, on defamation of religion.

General Comment 34 (GC34) refers to Article 19 (1) and (2) of the ICCPR, made up of two separate rights: the right to opinions and the right to freedom of expression. Article 19 (3) constitutes the “clawback” clauses and relates only to Article 19 (2).  General Comment 34 starts by providing a conceptual view of Article 19 ICCPR and its value. Paragraph 2 of the GC34 states:

“Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.”

This is one of the first attempts to delineate the conceptual underpinnings of Article 19 and to identify the “infrastructure” aspect of the right, a point which has developed further in paragraph 4.

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