Reflecting on the Ethical and Legal Regulations Governing Court Reportage

Stephen Lamble in News As It Happens says court reporting has been a “staple” of newspapers since their earliest days. Reporting on court cases today requires adherence to specific legal and ethical regulations. Journalists are governed by self regulatory systems such as the MEAA Journalists’ Code of Ethics and laws including contempt of court. Legal regulations, particularly defamation and contempt of court, aim to balance the rights to a fair trial, to be considered innocent before guilty and to maintain a good reputation, with freedom of the press. It is not only journalists, but all citizens who are subject to these legal regulations.

“Since not everyone can visit [courts], cities in a democracy depend to a substantial extent upon accurate and published reporting of what takes place,” Justice Hedigan said in 2001.

The article Magistrate Shows Concern for Family Violence was written for intended publication in the Latrobe Valley Express on October 7, 2015. The most newsworthy information gathered from the research process determined the angle. However, the underlying philosophies of fairness, accuracy and balance must be adhered to when selecting a newsworthy angle which ‘hooks’ readers. Newsworthiness can be determined by timeliness, impact, consequence, prominence, unusualness, or proximity. The angle chosen in this article can be considered newsworthy for the intended publication because it is new information reported in a timely manner about a resident of the municipality.

The identity of the accused can be revealed in both this report and the article Man Causes $10,000 Worth of Damage to Youth Detention Centre because the period of sub judice had ended and the accused had pleaded guilty. Sub judice, meaning “before the court” or “under a judge”, prevents information being published which may interfere in the process of justice. The law aims to ensure a fair trial. Under sub judice, a journalist should not: reveal the accused’s criminal history, comment on a case, reveal the accused’s identity if they pleaded ‘not guilty’, reveal crime details that may influence a jury or publish photographs or videos revealing identity. The sub judice process begins when a person is charged with a crime and ends once they have been found guilty or acquitted. John Lawson from 2UE described a person on trial as “absolute scum” and guilty of murder on air. He was fined $50,000, the trial was aborted and the radio station was fined $200,000.

The article Man Causes $10,000 Worth of Damage to Youth Detention Centre was written for intended publication in the Melbourne Leader on October 7, 2015. Information in the public interest was considered when selecting an angle for this report. It was important to ensure the facts of the case were being stated objectively without comment or bias. To take this story and the article Magistrate Shows Concern for Family Violence further the prosecution would be contacted. Neither article is entirely balanced because a statement from the prosecution is absent. Lamble recognises court reporters must have a “strong commitment” to balance. “If they are not accurate and balanced – reporting each side of a case equally – they risk incurring the ire of judges and magistrates and, in extreme cases, charges of contempt.”

In addition to carefully considering sub judice law when reporting on court cases it is important to note cases of sexual assault, cases involving juveniles, legal discussions in absence of a jury, and cases when courts must be closed must not be reported on. “These restrictions aim to protect victims of crime, protect some witnesses, protect jurors and also shield the public from the gory and depraved details of some cases,” Lamble says.

Although it was not an issue in Magistrate Shows Concern for Family Violence or Man Causes $10,000 Worth of Damage to Youth Detention Centre, laws surrounding identification can regulate a journalist’s report. It is illegal in all Australian jurisdictions to identify victims of sexual offences, participants in Family Court cases, juveniles, ASIO officers and in some jurisdictions, jurors. It is also illegal to publish other information that could lead to their identification including school, address, place of employment or information that may indirectly identify them.

Defamation laws must also be considered. Everything in court is said under privilege. However, a journalist’s report of what has been said in court is no longer under privilege and can be considered defamatory. Defamation is defined as hatred, contempt or ridicule in the minds of ‘right-thinking people’. Defamation is judged by: whether the person is identifiable (direct or indirectly), how many people are subject to the defamatory material, the justification for publication (if the information was published in the public interest), if truth can be proved in court, and if the is report honest and fair. The law aims to balance the ideal of a right to free press with an individuals right to an undamaged reputation. These two articles avoid information which may be considered defamatory by striving for fairness, accuracy and balance.

The main ethical consideration when writing a court report is whether the article is fair, accurate and balanced. The MEAA Code of Ethics says “respect for truth” is a fundamental principle of journalism. Hence, only true and accurate information should be reported. “An honest journalist is one who presents all the facts as he or she understands them as fairly, accurately and objectively as possible,” Lamble says. However, the MEAA recognises basic values often need interpretation and sometimes come into conflict. “Ethical journalism requires conscientious decision-making in context. Only substantial advancement of the public interest or risk of substantial harm to people allows any standard to be overridden.”

It was difficult to gain all information needed to successfully write these reports. In addition to observing the cases and noting significant information it was necessary to contact the Melbourne Magistrates Court via email to learn the magistrates name, defence lawyers name and to confirm the sentence given.

Journalists hold a great responsibility when reporting on the courts because published material can affect the outcome of a trial. It is likely the jurors of the Lindy Chamberlain case were influenced by media reports which blatantly implied Chamberlain was guilty of killing her baby. Chamberlain was sentenced to life imprisonment but later found innocent and released after a coroner’s report ruled a dingo had killed Azaria Chamberlain.

As critically reflective practitioners, journalists should always question whether their report on a court case interferes with the process of justice. Does the report imply guilt or innocence? Is the report written objectively, striving for fairness, accuracy and balance? May the outcome of a trial be affected by what is published in the report? These questions were considered when writing Magistrate Shows Concern for Family Violence and Man Causes $10,000 Worth of Damage to Youth Detention Centre. 

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