Court Broadcasting

Open justice is a key feature of our legal system and civic life. It entails that proceedings should (mostly) be held in public. Broadcasting, which increases visibility, not only aligns with open justice but can enhance it. It elevates us from the baseline requirement of courtroom doors being open and the public allowed in. Courts, which have a leading role in open justice discourse and outcomes, should consider increasing their use of broadcasting, and seek to implement it where practical and appropriate. 

The aim is computerised open justice: increasing public visibility, using streaming media and digital publication, as an extension of the traditional approach of permitting physical access and reporting by the media. With the now widespread availability of the internet and shift in how the public accesses information, calls for the court-public relationship to be refreshed by allowing more streaming warrant greater attention. 

There are of course boundaries. Some matters need to be heard privately to protect the administration of justice, vulnerable individuals, and confidential information. Open justice is not absolute, and there are instances where maximum transparency would frustrate the court’s other objectives.

In Australian courts, there is also the issue of consistency across jurisdictions. There is no general prohibition against or mandate for broadcasting. Except for the High Court of Australia, broadcasting has been ad hoc and driven by judicial discretion. The High Court and Supreme Court of Victoria are the most active broadcasters. The remaining superior courts take a more conservative approach.

Practical Considerations

We should first be aware of the controversies surrounding the practice of court broadcasting. One argument against it is that cameras in the courtroom and the knowledge of being broadcast is distracting to participants, diminishing the court’s ability to administer justice. There are also concerns that broadcasting invites tabloid journalism, misrepresentation, and media spectacles, like those seen with the OJ Simpson and Depp v Heard cases.¹ More recently, the Bruce Lehrmann defamation trial² livestream sparked controversy when a politically motivated individual rebroadcasted it against court orders. It also came to the Court’s attention that some viewers were posting abusive comments about Mr Lehrmann’s barrister on social media, prompting Justice Lee to warn viewers the livestream may be terminated if the behaviour continued.

Some of these risks can be mitigated when broadcasting is executed carefully under an appropriate framework. Because of streaming’s potential to undermine court objectives, the court must as a prerequisite have full control of each element of production, including the ability to:

• Disallow two-way communication between the court and the public over the streaming platform.
• Mute or terminate the broadcast, and delay publication, at the court’s discretion.
• Use existing courtroom infrastructure (e.g., microphones and audio-visual link equipment) and back-of-house operators so that the production is inconspicuous and less likely to distract participants.
• Stick to an austere production style; the goal being to provide the freedom to view as opposed to maximising views.
• Perform social media monitoring, especially during high-profile trials. 

These measures would allow courts to broadcast regularly while preserving the administration of justice and solemnity of proceedings. The overall message is that broadcasting requires planning and implementation with due care and skill. We need not look further than the Novak Djokovic visa appeal case,³ a virtual hearing that was plagued by technical issues and was hijacked by pranksters, to see how improper implementation can quickly lead to farce and undermine public trust in the justice system.

Conclusion

Online broadcasting, where appropriate and thoughtfully implemented, is the contemporary expression of open justice, but its use by Australian courts is inconsistent. More uniformity is needed across jurisdictions, perhaps in the form of a general policy (with appropriate exclusions) together with a practical framework for delivery. The High Court’s policy of publishing Full Court hearings and live streaming Special Leave to Appeal Applications, while being jurisdiction-specific and not intended to set legal precedent for other courts, is the open justice benchmark we should be aiming for across Australia.

_{[1] The People of the State of California v Orenthal James Simpson (L.A. Sup. Ct, No BA097211, 3 October 1995); John C. Depp, II v Amber Laura Heard (Fairfax Cir. Ct, No CL-2019-2911, 1 June 2022).}

_{[2] Lehrmann v Network Ten Pty Limited [2024] FCA 369.}

_{[3] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3.}