Earlier this month, the e-Committee of the Supreme Court released Draft Rules for Live Streaming High Court Proceedings. These rules indicate that live streaming and recording of proceedings are likely to be implemented soon for High Courts. And the Supreme Court might follow.
In this post, we look at the different ways apex Courts across the world have approached transparency in the media age.
The Constitutional Courts of Germany and France are among those Courts that do not upload any recordings of proceedings.
Audio or Video?
The Supreme Court of the United States (SCOTUS) is one of the few apex Courts which upload only audio. Of the other apex Courts we have surveyed in the table above, the rest also upload video of the proceedings.
Mary-Rose Papandrea, a professor at Boston College, has compiled some of the reasons SCOTUS has been reluctant to adopt video. They include a desire for anonymity, the worry that soundbites will be edited and comments taken out of context or that the public is not aware of the judicial process. Lawyers, and even judges, might also ‘grandstand’ for the cameras.
However, Associate Justice Elena Kagan, during her confirmation hearings, had advocated for cameras in the courtroom. She said there are many things that happen in the Court that people should be ‘interested in and concerned about’. “If everybody could see this it would make them feel so good about this branch of government and how it operates. Reading about it is not the same experience,” she said. Though she has since changed her position.
The Indian Draft Rules have provided for video capture of proceedings from at least 3 angles.
Synchronous or Asynchronous?
Two courts in our survey do not livestream their proceedings. These are SCOTUS and the High Court of Australia (HCA). They upload recordings at the end of the week or the next day respectively. Most other Courts livestream their proceedings.
The Indian Draft Rules has a ten minute delay on the ‘livestream’. This would ensure that unexpected incidents such as sensitive information being revealed can be edited out. However, the Rules do not state what will be done during the delay, or guidelines for what will be edited out and how. In the United States, the group Fix the Court has been campaigning for live streaming, since uploading it later ‘[renders] them all but useless to news directors across the country’.
Inhouse or Third-party Platforms?
Courts have chosen various platforms to share their proceedings. Most of them choose to put it up on their website (for example, SCOTUS, UK Supreme Court, HCA). Some broadcast proceedings on TV, either on a public channel (Brazil), or through news media. The Constitutional Court of South Africa, and the Gujarat and Karnataka High Courts, have been streaming on YouTube.
The Indian Draft Rules does not prescribe a platform, making provision for using both the Court website or other platforms. The choice would be relevant in light of the need for data protection of the various people who will be recorded; especially since India does not currently have a comprehensive framework for the protection of personal and government data.
Can Media Publish the Court Proceedings?
In 1971, CBS broadcast an edited clip of proceedings on the Pentagon Papers case. For 15 years after this, SCOTUS stopped releasing audio recordings. Most Courts prohibit the recording, editing or sharing of proceedings without prior permission of the Court (the Supreme Courts of Brazil and Kenya don’t have explicit guidelines on this). Educational purposes are often exempt.
The Indian Draft Rules have also taken this into consideration. Nobody is allowed to edit or share the recordings without prior permission of the Court. However, in a separate judgment, the Court has upheld the right of the media to report proceedings live. So practices such as ‘live-tweeting’ may continue.
Papandrea has suggested that livestreaming will avoid the confusion that might arise due to inaccurate reporting. In June 2012, when SCOTUS delivered its verdict on Obama’s healthcare bill, two news houses had falsely reported it as struck down. SCOTUSBlog says even Obama himself was ‘in limbo’, amidst the confusion on the verdict.
What gets Uploaded?
Most apex Courts (US, Canada, UK, Brazil, South Africa) upload/stream all cases they hear. However, the HCA uploads only those cases heard by a ‘Full Court’, which raise important questions of law.
The Indian Draft Rules require all cases to be streamed, except those that fall within limited exceptions. The rules also require that nothing ‘uncivil or inappropriate’ is streamed.
The Rules also prohibit recording of evidence, among other measures to maintain anonymity, a key concern when adopting video live streaming. Further anonymity measures, such as voice distortion, or pixelation, might also be considered by Courts.