Twitter in court: Why not streaming video?

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.

Stilgherrian
(Credit: Stilgherrian.com)

People are clearly engaged — "hooked" and "addicted" even — comparing it with watching a football grand final or, more 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 they're rare.

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 of Charles 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" was chaos.

"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 chair.

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 experimented 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 Chamberlain.

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 writes.

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 involving children.

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?