TaxTMI 
TaxTMI 
2018 (9) TMI 2157
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....nal importance having an impact on the public at large or a large number of people" should be live streamed in a manner that is easily accessible for public viewing. Further direction is sought to frame guidelines to enable the determination of exceptional cases that qualify for live streaming and to place those guidelines before the Full Court of this Court. To buttress these prayers, reliance has been placed on the dictum of a nine-Judge Bench of this Court in Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Ors.,1 which has had an occasion to inter alia consider the arguments of journalists that they had a fundamental right to carry on their occupation under Article 19(1)(g) of the Constitution; that they also had a right to attend the proceedings in court under Article 19(1)(d); and that their right to freedom of speech and expression guaranteed under Article 19(1)(a) included their right to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists. The Court whilst considering the said argument went on to emphasise about the efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for e....
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.... information, it is by now well settled, is a facet of Article 19(1)(a) of the Constitution and for which reason the public is entitled to witness Court proceedings involving issues having an impact on the public at large or a section of the public, as the case may be. This right to receive information and be informed is buttressed by the value of dignity of the people. One of the proponents has also highlighted the fact that litigants involved in large number of cases pending before the Courts throughout the country will be benefitted if access to Court proceedings is made possible by way of live streaming of Court proceedings. That would increase the productivity of the country, since scores of persons involved in litigation in the courts in India will be able to avoid visiting the courts in person, on regular basis, to witness hearings and instead can attend to their daily work without taking leave. 4. As the debate has actuated momentous issues, we had requested the learned Attorney General for India, Shri K.K. Venugopal to collate the suggestions given by him as well as the petitioners and interventionists and submit a comprehensive note for evolving a framework, in the event....
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....ing or publication of trail proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.]" Section 153-B CPC "153-B. Place of trial to be deemed to be open Court.- The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them: Provided that the presiding Judge may, if he thinks fit, order at any state of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court." 7. Notably, in Naresh Shridhar Mirajkar (supra), this Court, in no uncertain terms, expounded that open trial is the norm but, at the same time, cautioned that there may be situations where the administration of justice itself may make it necessary for the Courts to hold in-camera trials. Applying the underlying principles, it may be appropriate to have a proper and balanced regulatory framework before the concept of live streaming of Court proceedings of this Court or ....
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.... Legal Reforms on the proposal to initiate audio video recording on an experimental basis in the Courts. In its meeting held on 26th August, 2014, it was noted that audio video recording of Court proceedings was proposed in the Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project. However, in the meeting of the E-Committee held on 8th January, 2014, the issue was taken up but was deferred as it required consultation with Hon'ble Judges of the Supreme Court and the High Courts. Indeed, consultation with the Hon'ble Judges of the Supreme Court and the High Courts may become essential for framing of rules for live streaming of Court proceedings so as to ensure that the dignity and majesty of the Court is preserved, and, at the same time, address the concerns of privacy and confidentiality of the litigants or witnesses, matters relating to business confidentiality in commercial disputes including prohibition or restriction of access of proceedings or trials stipulated by the Central or State legislations, and, in some cases to preserve the larger public interest owing to the sensitivity of the case having potential to spring law and order situation or soci....
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....ht to veto the use of any part or of all footage recorded. iii. The website of the Federal Court also contains a video archive of certain judgment summaries, accompanied by text versions8. iv. Rule 6.11 of the Federal Court Rules, 20119 seems to indicate that private parties may also take recordings of proceedings, subject to restrictions laid down therein. b. Supreme Courts: Permission for broadcast varies, depending on the court. i. The Supreme Courts (having trial jurisdiction) for the various Australian districts differ on permission for media broadcasting. For example, the Queensland Supreme Court allows for a live or delayed broadcast of only 'judgment remarks'10 and has also issued practice directions in that regard11. ii. Filming court proceedings is permitted in certain situations in certain Supreme Courts like New South Wales12, Northern Territory13, Western Australia14 and Tasmania15, after an application is made to the presiding Judge or to the registrar in some courts. c. Trial Courts: Rarely admit cameras and when they do, allow recording mostly for ceremonial events or for stock footage. II. Brazil 1. Supreme Court: Allows live video and audio broadcas....
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....or permission to record proceedings but the general policy is to allow such applications if they are made within a reasonable time. b. Courts of Appeal26: Courts of Appeal in the provinces allow or deny permission to broadcast court proceedings based on their own guidelines27. c. Courts of first instance/Trial Courts: Broadcast of proceedings is rare. Although each province maintains its own guidelines for coverage, in practice, approval for broadcast of proceedings is rarely given. IV. China: Live streaming and recorded broadcasts of court proceedings are being implemented across the judiciary, from the trial courts right up till the Supreme People's Court of China. 1. Supreme People's Court: a. The Supreme Court has allowed proceedings of its public hearings to be broadcast live28 from July 2016 onwards. These broadcasts are governed by the 2010 regulations issued by the Supreme Court, 'Provisions on the Live Broadcasting and Rebroadcasting of Court Trials by the People's Courts'29. These regulations focus on the type of cases to broadcast.30 b. Additionally, cases involving matters like review of death sentences and review of decisions on foreign arbitral awards are....
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....rime and Courts Act, 2013 amended the existing laws to facilitate broadcasting in courts and tribunals by providing exceptions to the Criminal Justice Act, 192542 and prescribing conditions subject to which recordings could be made. Broadcast of court proceedings is allowed in a limited number of courts across the country. a. Court of Appeal for England and Wales43: The Court broadcasts its proceedings live with a 70-second broadcast delay system i. The broadcast system is operated by a specialist video journalist who takes orders from the court. ii. The broadcast is conducted by cameras, some of which are operated completely wirelessly, and can be moved from court to court. Subject to the judges' approval, the video journalist can take his cameras into any of the courtrooms in which the Court of Appeal may sit. iii. Lawyers' arguments and judges' comments appear in the broadcast but defendants, witnesses and victims are not shown. iv. Footage can be used for news and current affairs but not in other contexts such as comedy, entertainment or advertising. b. Crown Court: The Crown Court (Recording) Order, 201644 partially lifts the prohibition on recording pr....
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....arrow scope of what constitutes a case of 'historical significance', actual broadcasts of court cases in Germany rarely occur. 2. Lower Courts: The amendment act only mentions the possibility of broadcasting proceedings of the Federal Constitutional Court and Supreme Federal Courts and makes no mention about broadcast of proceedings in lower courts. VIII. International Criminal Court (ICC) 1. The ICC allows for live streaming of its proceedings with a 30-minute delay to allow for any necessary redactions of confidential information49. 2. The ICC has an official Youtube channel where it publishes programmes concerning cases, proceedings, informative sessions, press conferences, outreach activities and other events at the Court50. The channel allows viewers to follow various cases before the ICC, in several languages, through the weekly postings of summaries of proceedings. IX. International Criminal Tribunal for the former Yugoslavia (ICTY) 1. Court proceedings are available for viewing on the website of the ICTY51. 2. ICTY also has a Youtube channel where selected clips of guilty pleas, witness testimonies and short documentaries are made available. Additionally, the IC....
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....not appear to allow broadcasting of proceedings, as on date. XII. Israel61: 1. Supreme Court: Has approved of live-broadcasting court proceedings. a. The Israeli Courts Act, 5744-198462 imposes criminal punishment for taking and publishing pictures in a court room unless the court grants permission. The media however can report on events occurring in most Israeli courts, subject to the limitations imposed by the audio- visual coverage mentioned in the Act. b. Earlier, a legal presumption existed against audio-visual coverage of courts in Israel. In September 2014, a limited pilot was launched to allow live coverage of court hearings at the Supreme Court although there was no formal administrative legislation or regulation issued in that regard. c. Thereafter, in November 2014, the Chief Justice of Israel approved of live broadcasting of Court proceedings63. 2. Lower Courts: Do not generally allow for broadcast of proceedings but exceptions have been made in cases of historical significance. a. Reporting on court proceedings by media is allowed but broadcast of such proceedings is not. Certain courts allow the media to photograph the judges entering the courtrooms, but ....
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....s must not be broadcast until at least 10 minutes have elapsed, although there are certain exceptions made for this rule as well. f. In addition, there is a separate protocol for application of the said guidelines to the District Court summary jurisdiction66. There are also separate Environment Court Media Coverage Guidelines67. XIV. Scotland: 1. Supreme Court: The United Kingdom Supreme Court has jurisdiction over Scotland and accordingly, hearings of the Court are live streamed on the Court's website. 2. Lower Courts: Broadcast of court proceedings is permissible by law and both civil and criminal cases have been broadcast over the years. a. There was no statutory ban on broadcasting of court proceedings in Scotland, since the Criminal Justice Act is not applicable to Scotland. However until 1992, the courts adopted a strict position banning electronic media from access to courts. b. In 1992, the "Television in Courts" directions were issued68 (later quoted in the X v British Broadcasting Corporation and Lion Television Limited judgment69) which provided that filming could be permitted on the basis of "whether the presence of television cameras in the court would be wi....
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....he substantial rights of individual participants or the rights to a fair trial would be prejudiced by such coverage if it was allowed to continue; iv. An accused person in a criminal trial could object to the presence of cameras in the courtroom. If the court determined that the objection raised by the accused was valid, it could exclude cameras from recording; v. Witnesses could also raise objections to being filmed. If the judge determined that a witness had a valid objection, alternatives to regular photographic or television coverage could be explored, like introducing special lighting techniques and electronic voice alteration, or merely by shielding the witness from the camera. Broadcast of testimony of an objecting witness could be delayed until after the trial is over; vi. Cameras would be permitted to film or televise all non- objecting witnesses. vii. There would be no coverage of: * Communications between counsel and client or co- counsel; * Bench discussions; * In-camera hearings. 2. Lower Courts: In light of the Supreme Court decision in Breda, lower court criminal proceedings are also allowed to be broadcast subject to conditions laid down by the presi....
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....degree and extent to which broadcasts are allowed. a. In Estes v. Texas82, the US Supreme Court held that camera coverage of a trial inspite of the defendant's objection to the same violated the defendant's constitutional right, although the question of whether courtroom broadcasting was inherently prejudicial to a fair trial, remained open. This question was answered in Chandler v Florida83 where the Court was of the opinion that the restriction on camera coverage imposed in Estes was not an absolute, universal ban and left it to the states to frame rules for permitting televised recordings, since televising a criminal trial did not automatically make the trial unfair to the defendant. b. In the aftermath of the decision in Chandler, all 50 US states have allowed for some form of televised broadcast of court proceedings and framed rules for the same84, with the applicability and extent of such broadcast varying from state to state. Some states permit visual and audio coverage in all types of court proceedings that are public, including civil and criminal trials of the first instance, at the discretion of the presiding judge, while other states allow such coverage only in....
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.... of cases of national importance, while ensuring that litigants have a true account of how decisions were made in their respective case. Such a system is in aid of the well accepted and respected tradition of 'Open justice' i.e. justice should be administered in an open court. Recommendations: This Hon'ble court may lay down the following guidelines to administer live streaming of Court proceedings: 5. At the outset, it is submitted that Live Streaming of Court proceedings should be introduced as a pilot project in Court No.1 and only in Constitution bench references. The success of this project will determine whether or not live streaming should be introduced in all courts in the Supreme Court and in Courts pan India. 6. To ensure that all persons including litigants, journalists, interns, visitors and lawyers are able to view the live streaming of the proceedings, a media room should be designated in the premises of the court with necessary infrastructural facilities. This will also ensure that courts are decongested. Provisions may also be made available for the benefit of differently abled persons. 7. Apart from live streaming, the Supreme Court may, in the future, al....
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....ithout prior written authorization of the Supreme Court of India, live streaming or the webcast of the proceedings from the Supreme Court should not be reproduced, transmitted, uploaded, posted, modified, published or republished to the public. f. Any unauthorized usage of the live streaming and/or webcasts will be punishable as an offence under the Indian Copyright Act, 1957 and the Information Technology Act, 2000 and any other provisions of the law in force. The law of contempt should apply to such proceedings. Prohibitions, fines and penalties may be provided for. g. The Courts may also lay down rules of coverage to provide for the manner in which the filming may be done and the equipment that will be allowed in court. h. Case management techniques should be introduced to ensure that matters are decided in a speedy manner and lawyers abide by time limits fixed prior to the hearing. A skeleton of arguments/Written submissions should be prepared and submitted to the Court by the lawyers prior to their arguments. i. The Court of Appeal in England, in November 2013, introduced streaming its proceedings on YouTube. The telecast is deferred by 70 seconds with the Judge having....
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....ive maximum expression to each right while minimizing the encroachment on the other rights. We are conscious of the fact that in terms of Section 327 of CrPC and Section 153-B of CPC, only court-directed matters can be heard in camera and the general public can be denied access to or to remain in the court building used by the Court. Until such direction is issued by the Court, the hearing of the case is deemed to be an open court to which the public generally may have access. The access to the hearing by the general public, however, would be limited to the size and capacity of the court room. By virtue of live streaming of court proceedings, it would go public beyond the four walls of the court room to which, in a given case, the party or a witness to the proceedings may have genuine reservations and may claim right of privacy and dignity. Such a claim will have to be examined by the concerned Court and for which reason, a just regulatory framework must be provided for, including obtaining prior consent of the parties to the proceedings to be live streamed. 14. We generally agree with the comprehensive guidelines for live streaming of Court proceedings in the Supreme Court sugges....
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....wing considerations: (a) unanimous consent of the parties involved, (b) even after the parties give unanimous consent the Court will consider the sensitivity of the subject matter before granting such permission, but not limited to case which may arouse passion or social unrest amongst section of the public, (c) any other reason considered necessary or appropriate in the larger interest of administration of justice, including as to whether such broadcast will affect the dignity of the court itself or interfere with/prejudice the rights of the parties to a fair trial, (v) There must be a reasonable time-delay (say ten minutes) between the live court proceedings and the broadcast, in order to ensure that any information which ought not to be shown, as directed by the Court, can be edited from being broadcast. 15. Until a full-fledged module and mechanism for live streaming of the court proceedings of the Supreme Court over the "internet" is evolved, it would be open to explore the possibility of implementation of Phase-I of live streaming in designated areas within the confines of this Court via "intranet" by use of allocated passwords, as a pilot project. The designated are....
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....right over the broadcasted material and have the final say in respect of use of the coverage material. (vii) Reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of Court proceedings, in any form, physical, digital or otherwise, must be prohibited. Any person engaging in such act(s) can be proceeded under, but not limited to, the Indian Copyright Act, 1957, the Indian Penal Code, 1860, the Information Technology Act, 2000 and the Contempt of Courts Act, 1971. 17. We reiterate that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework as per the contours delineated hereinabove. We may hasten to add that it would be open to frame such regulatory measures as may be found necessary for holistic live streaming of the court proceedings, without impinging upon the cause of administration of justice in any manner. 18. In conclusion, we hold that the cause brought before this Court by the protagonists in larger public interest, deserves acceptance so as to uphold the constitutional rights of public and the litigants, in particular. In recogn....
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....l in a liberal democracy as 'a sound and very sacred part of the Constitution of the country and the administration of justice...'1 Jeremy Bentham propounded the idea of open justice in the late eighteenth century while designing principles for establishments in which persons are to be kept under inspection: "...the doors of all public establishments ought to be, thrown wide open to the body of the curious at large- the great open committee of the tribunal of the world."2 4 Although Bentham wrote these words in the larger context of public institutions, they apply on equal terms to the theory of open justice. Bentham in his "Draught of Code for the Organization of the Judicial Establishment" codified the principle of open justice as: "Article XVIII- Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones herein specified, be carried out with the utmost degree of publicity possible."3 According to Bentham, secret (or in-camera) proceedings were to be carried out in the judge's chamber.4 He also prescribed open justice for trials by the National Assembly Courts, (which, in his Code, were courts constituted to hear complaints agai....
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....It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order..."12 6 Lord Diplock, speaking for the House of Lords in AG v Leveller Magazine, remarked that open courts are a safeguard against judicial arbitrariness or idiosyncrasy. 13 Open courts, in his view, help build public confidence in the administration of justice.14 The public's trust in the judicial system depends on their perception of how courts function. Open courts make it possible for the public to develop reasonable perceptions about the judiciary, by enabling them to directly observe judicial behaviour, and the processes and outcomes of a case. In the decision of the High Court of Australia, in Grollo v Palmer, Gummow J dwelt on the idea of open courts: "An essential attribute of the judicial power of the Commonwealth is the resolution of such controversies ... so as to provide final results which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning. An objective of the exercise of the judicial po....
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....dia. Section 153-B of the CPC provides that every civil court which tries a suit shall be deemed to be an open court: "Section 153-B. Place of trial to be deemed to be open court.- The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them: Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court." Similarly, Section 327 of the CrPC also mandates criminal courts to be open: "Section 327. - Court to be open.- "[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally,....
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....he majority on the importance of an open court system: "90. ...As we have fortunately inherited the English tradition of holding trials (with a few exceptions to which I shall refer later) in public, I shall begin with the English practice. It has always been the glory of the English system as opposed to the Continental, that all trials are held ostiis apertis, that is, with open doors. This principle is old... it is a direct guarantee of civil liberty and it moved Bentham to say that it was the soul of Justice and that in proportion as publicity had place, the checks on judicial injustice could be found...." Justice J C Shah elaborated on open justice but also recognised the need to restrict access to protect the administration of justice, in cases where it becomes necessary: "129...Hearing in open court of causes is of the utmost importance for maintaining confidence of the public in the impartial administration of justice: it operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses. But hearing of a cause in public which is only to secure administration of justice untainted must yield to the paramount ob....
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....ction of participating in the decision that vitally concerns her, and perhaps the separate satisfaction of receiving an explanation of why the decision is being made in a certain way. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. Justice Frankfurter captured part of this sense of procedural justice when he wrote that the "validity and moral authority of a conclusion largely depend on the mode by which it was reached...No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done." These observations have been made in the context of analysing the importance of the right to be heard. But Olga Tellis emphasised that not only the ends, but also the means of justice are important. The purpose behind an open court syste....
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....ty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public's right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them. C Technology and Open Court 14 In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smart phones has revolutionised how we communicate. As on 31 March 2018, India had a total of 1,206.22 million telecom subscribers and 493.96 million internet users.23 Techn....
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....ted as per the administrative instructions. Similarly, a manager/information officer in every District Court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants." In Santhini v Vijaya Venketesh, 26 where this Court was re-considering the issue of permitting video-conferencing for matrimonial disputes, one of us (D Y Chandrachud, J.) in his dissenting opinion, discussed the importance of using technology to enhance the delivery of justice: "89. Technology must also be seen as a way of bringing services into remote areas to deal with problems associated with the justice delivery system. With the increasing cost of travelling and other expenses, videoconferencing can provide a cost-effective and efficient alternative. Solutions based on modern technology allow the court to enhance the quality and effectiveness of the administration of justice. The use of technology can maximise efficiency and develop innovative methods for delivering legal services. Technology-based solutions must be adopted to facilitate access to justice... Repeated adjournments break the back of the l....
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....and other peripherals available in the district judiciary. The e-Courts Project is developed on Open Source Technology by the National Informatics Centre (NIC), a Central Government department under the Union Ministry of Electronics and Information Technology. A single unified Case Information System (CIS) Software has been developed and made available to the entire district judiciary in India, for catering to the diversified requirements of the country in terms of local procedures, practices and languages. CIS Version 3.0 has been made available in all the district and taluka courts. 15 High Courts are already equipped with CIS Version 1.0. The e-Committee carried out extensive capacity building exercises to train judicial officers and administrative staff. The project is manned and managed by the court staff and the staff is trained in the use of computers. Some of them are also selected to be trained as system administrators. C.3 Platforms created for service delivery (i) e-Courts Portal: Online mechanisms 28 (websites) are available for stakeholders such as litigants, advocates, government agencies, and the police to track case status, view cause lists, judgments and daily....
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....t Courts across India. The NJDG portal njdg.ecourts.gov.in provides transparency in the judicial system to all citizens by allowing them to view statistics of cases pending before various courts. The World Bank has also acknowledged NJDG as a significant innovation. It serves as a national judicial data warehouse that may be used to shape legislative policy. C.5 Other facilities created to speed up justice delivery (i) NSTEP: National Software and Tracking of Electronic Process, is a mechanism that consists of a centralised service tracking application and a mobile app for court bailiffs. NSTEP has been created for speedy delivery of process and to reduce inordinate delays in judicial procedures. The mobile app, equipped with GPS location tracking assists the bailiffs in real- time and transparent tracking of services. The mobile app also has the facility to record the photo and signature of the receiver. In case of non- service of notice or communication, the mobile application instantly communicates it to the central NSTEP server. (ii) Video Conferencing: In an effort to speed up the judicial process, video- conferencing facilities connecting courts and jails have been estab....
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.... oratory skills, among other things. It will further promote research into the institutional functioning of the courts. Live-streaming and broadcasting will also increase the reach of the courts as it can penetrate to every part of the country; e. Live-streaming will enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy; f. Live-streaming will remove physical barriers to viewing court proceedings by enabling the public to view proceedings from outside courtroom premises. This will also reduce the congestion which is currently plaguing courtrooms. It will reduce the need for litigants to travel to the courts to observe the proceedings of their cases; g. Live-streaming is a significant instrument of enhancing the accountability of judicial institutions and of all those who participate in the judicial process. Delay in the dispensation of justice is a matter of serious concern. Live-streaming of court proceedings will enable members of the public to know of the causes of adjournments and the reasons why hearings are delayed; and h. Above all, sunlight is the best disinfectant. Live-streaming as an extension of the ....
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....as a YouTube channel where it showcases short summaries of judgments read out by the judges.41 In 2013, the UK permitted audio-visual coverage of the Court of Appeals (Civil and Criminal).42 The broadcast is subject to certain limitations - (a) only the judgments and lawyers' arguments are permitted to be filmed. Victims and witnesses are not recorded; and (b) live broadcasts are delivered with a seventy seconds delay.43 According to British legal commentator, Joshua Rozenberg, the seventy seconds delay is favourable and necessary because: "That gives everyone involved just over a minute to work out that something should not be heard or seen in public before the recording leaves the courtroom. The problem could be mild profanity...Somebody might quote information that is protected by a court order or is unreportable for some other reason. Perhaps the cameras might catch a glimpse of someone whose face must not be included in court broadcasts, such as the appellant or a witness."44 The court retains control over the live broadcast. A single video-journalist is authorised to record and regulate the live proceedings 45 and is bound by the court's orders.46 Only the appointed journ....
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....disapplied."54 In 2016, the Ministry of Justice launched a three-month pilot program to experiment with broadcasting the proceedings of eight England and Welsh Crown Courts.55 This was limited to judges' sentencing remarks and the footage was not made available to the public.56 The question of broadcasting the Crown Court's hearings is currently pending consideration before the Ministry of Justice, as it involves larger issues of safeguarding witnesses and victims.57 (ii) South Africa In South Africa, the presence of cameras in the courtroom is a recent development and is at a relatively nascent stage. In 2017, the Supreme Court of Appeal (which is the highest court of appeal in South Africa) set a precedent permitting broadcasting of proceedings in all courts of South Africa.58 Now, the media is permitted to live broadcast the proceedings of all South African courts. While permitting the media to live broadcast the court proceedings, Ponna JA made an interesting observation that it was time for courts to 'yield to a new reality:' "It is thus important to emphasise that giving effect to the principle of open justice and its underlying aims now means more than merely keeping th....
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....ecial events.71 The copyright over the proceedings is retained by the Court.72 Before any case can be filmed, the Supreme Court requires parties to consent to the recording and televising of the proceedings.73 Any party seeking to exclude their case from the broadcast must convey the same to the Registrar at least two weeks prior to the hearing date. 74 (iv) Australia Australia follows an open court system, with courts in all Australian jurisdictions admitting television cameras into courtrooms. 75 Since 2013, audio-visual recordings of the High Court of Australia have been made available to the public.76 The entire process of filming and broadcasting is carried out by the Court staff.77 Transcripts of the hearings are made available within a day or two of most hearings. 78 The High Court has stated that initially the recordings will be available after a few business days, however, the Court will endeavour to reduce the number of days.79 Apart from the High Court, most Australian courts do not maintain a consistent policy on admitting television cameras into the courtroom.80 Filming is permitted on an ad hoc basis and is usually restricted to the recording of file and overlay fo....
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....shment in 2004, indicate that audio- visual covering is to be considered as the norm, rather than the exception: "Subject to paragraph (5), all applications to televise or otherwise record proceedings of the Supreme Court will be deemed to be approved unless a party indicates, within 3 days of being advised by the registrar of the application, that the party objects to it."92 (vi) United States The US Supreme Court does not permit video recording or photography of its proceedings. It releases audio transcripts of the oral arguments on the same day. Audio recordings of each week's oral arguments are released on the court's website93 at the end of the week. Each Federal Court of Appeals has the discretion to provide audio or video recordings of its proceedings, subject to guidelines framed by the court. Since 2014, the US Court of Appeals for the Ninth Circuit has approved video broadcasting of all cases before it, except those prohibited by law through guidelines.94 The media needs to take prior approval of the court to record the proceedings.95 The presiding judge is granted absolute discretion to limit or terminate media coverage, or direct the removal of camera coverage pers....
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....st or streamed; and (v) conferment of power on the presiding judge to regulate the live transmission. Every jurisdiction has a set of limitations to which the broadcast is subject. Broadcast is usually not permitted when it impedes the administration of justice. 21 Live-streaming of court proceedings is manifestly in public interest. It is important to re-emphasise the significance of live-streaming as an extension of the principle of open justice and open courts. However, the process of live-streaming should be subjected to carefully structured guidelines. Initially, a pilot project may be conducted for about three months, by live-streaming only cases of national and constitutional importance in the Chief Justice's Court. Progressively, as and when the infrastructure is ready, this Court can expand the ambit of live-streaming to cover all cases (except for the ones which are excluded). 22 The need for live-streaming of proceedings applies with equal and, in some respects, greater force to proceedings of cases in the district judiciary and the High Courts. The pattern of litigation in our country resembles a pyramid. The courts within the district judiciary represent the large ba....
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....ourts and in the district judiciaries in phases, commensurate with available resources and technical support. The High Courts would have to determine the modalities for doing so by framing appropriate rules. 25 Comprehensive guidelines for live-streaming of Court proceedings have been submitted by Mr K K Venugopal, learned Attorney General of India, Ms Indira Jaising, learned Senior Counsel, Mr Virag Gupta, learned Counsel and Mr Mathews J Nedumpara, learned Counsel. These have been duly considered in framing the model guidelines below. The model guidelines are based on the following broad principles: a. Article 145 (1) of the Constitution provides: "Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court..." Determining the modalities for live-streaming of the proceedings of this Court can appropriately be dealt with under the Rules which should be framed in pursuance of Article 145(1). Regulating, generally, the practice and procedure of the Court would extend to formulating Rules for live-streaming. b. Not all cases may b....
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....om shall have the discretion to disallow live-streaming for specific cases where, in his/her opinion, publicity would prejudice the interests of justice. This may be intimated by the presiding judge in advance or live-streaming may be suspended as and when a matter is being heard; and c) Where objections are filed by a litigant against live-streaming of a case on grounds of privacy, confidentiality, or the administration of justice, the final authority on live-streaming the case shall lie with the presiding judge. 2. In addition to live-streaming of courtroom proceedings, the following events may also be live-streamed in future subject to the provisions of the Rules: (a) Oath ceremonies of the Judges of the Supreme Court and speeches delivered by retiring judges and other judges in the farewell ceremony of the respective Supreme Court Judges; and (b) Addresses delivered in judicial conferences or Full Court References or any event organized by the Supreme Court or by advocate associations affiliated to the Supreme Court or any other events. B. Manner of live-streaming 1. Live-streamed and archived videos of the broadcast shall be made available on the official website of t....
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.... by an advocate either on paper or in electronic form for assistance while making submissions to the court. D. Archiving 1. The audio-visual recording of each day's proceedings shall be preserved in the Audio-Visual Unit of the Supreme Court Registry; 2. Archives of all broadcasts of courtroom proceedings which have been live-streamed should be made available on the website of the Supreme Court; and 3. Hard copies of the video footage of past proceedings may be made available according to terms and conditions to be notified by the Supreme Court Registry. The video footage shall be made available for the sole purpose of fair and accurate reporting of the judicial proceedings of the Supreme Court. E. Broadcast Room 1. The Registry will make one or more rooms or a hall available within the premises of the Supreme Court for the purpose of broadcasting the proceedings. Multiple screens along with the other necessary infrastructural facilities shall be installed, for enabling litigants, journalists, interns, visitors and lawyers to view the courtroom proceedings in the broadcast room(s). Special arrangements will be made for the differently abled. F. Miscellaneous 1. The Supreme ....
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....port to Chief Justice on In-Court Media Coverage available on the website of the New Zealand Judiciary at: https://www.courtsofnz.govt.nz/In-Court-Media-Review/In-Court-Media- Review/ReporttoChiefJusticeonincourtmediacoverageF6_7_15_20150720.pdf 8 Available on the website of the Federal Court at: http://www.fedcourt.gov.au/digital-law- library/videos 9 "6.11 Use of communication device or recording device in place where hearing taking place (1) In this rule: communication device includes a mobile telephone, audio link, video link or any other electronic communication equipment. recording device means a device that is capable of being used to record images or sound, including a camera, tape recorder, video recorder, mobile telephone or digital audio recorder. (2) A person must comply with any directions made by the Court at the hearing of any proceeding in the Court relating to the use of a communication device or recording device. (3) A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court. (4) A person must not use a communication device or a recording device that might: (....
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....ata/assets/pdf_file/0014/414221/Media- Guidelines-May-2018.pdf 16 TV Justica official website at: http://www.tvjustica.jus.br 17 Radio Justica official website at: www.radiojustica.jus.br/ 18 Official Youtube channel at: https://www.youtube.com/user/TVJustica 19 Official Youtube channel at: https://www.youtube.com/user/STF 20 See In-Court Media Coverage - a consultation paper at footnote 6 21 Official website at: http://www.cpac.ca/en/programs/supreme-court-hearings/ 22 Available on the website of the Supreme Court of Canada at: https://www.scc-csc.ca/case- dossier/info/hear-aud-eng.aspx 23 Available on the website of the Supreme Court of Canada at: https://www.scc-csc.ca/case- dossier/info/webcasts-webdiffusions-eng.aspx 24 "Media coverage of proceedings with audio-visual equipment is only permitted in accordance with the following guidelines: a. A media request to cover a specific proceeding must be made sufficiently in advance to allow for necessary permissions to be obtained. b. A decision as to whether to allow media coverage will be made by the Chief Justice, after consultation with the panel of judges hearing the particular case, as well as with the parties. c....
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....ures for cost sharing, access to and dissemination of material, and a pool representative. c. The media must show that they will use only equipment that does not produce distracting sound or light, or use flash attachments, other artificial light sources, signal lights or devices indicating that it is activated. d. The presiding judge may specify the location of equipment in the courtroom and require modification of light sources at media expense. e. Media personnel are expected to place, replace, move or remove equipment, or change film, film magazines or lenses before court proceedings, after adjournment or during recesses. 3. Use of Materials Within 10 days of publication or broadcast of any material generated through electronic media coverage, media are to provide the Court with a copy." Policy on Public and Media Access available on the website of the Federal Court of Canada at: http://www.fct-cf.gc.ca/fc_cf_en/MediaPolicy.html 26 See In-Court Media Coverage - a consultation paper at footnote 6 27For example, the Nova Scotia Court of Appeal has its own guidelines while the Ontario Court of Appeal introduced a pilot for broadcast of court proceedings but permanent....
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.... http://zj.sifayun.com/?courtId=5168; 35 Section 41 of the Criminal Justice Act, 1925 (as originally enacted): "41. Prohibition on taking photographs, &c, in court (1) No person shall- (a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or (b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof; and if any person acts in contravention of this section he shall, on summary conviction, he liable in respect of each offence to a fine not exceeding fifty pounds. (2) For the purposes of this section- (a) the expression " court" means any court of justice, including the court of a coroner : (b) the expression "judge" includes recorder, registrar, magistrate, justice and coroner : (c) a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court-room or in the bui....
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....rt from the Supreme Court;". ***" Available on the website of the UK Legislature at: https://www.legislation.gov.uk/ukpga/2005/4/section/47 38 Sections 31, 32 and 33 of the Act, available at: http://www.legislation.gov.uk/ukpga/2013/22/contents/enacted 39 Practice Note 8.17.1: "Broadcasting 8.17.1. The President and the Justices of the Supreme Court have given permission for video footage of proceedings before the Court to be broadcast where this does not affect the administration of justice and the recording and broadcasting is conducted in accordance with the protocol which has been agreed with representatives of several UK broadcasters. Permission to broadcast proceedings must be sought from the President or the presiding Justice on each occasion and requires his or her express approval. Where the President or the presiding Justice grants permission, he or she may impose such conditions as he or she considers to be appropriate including the obtaining of consent from all the parties involved in the proceedings." Available at: https://www.supremecourt.uk/docs/practice-direction-08.pdf 40 See official website at: https://www.supremecourt.uk/live/ 41 Official Youtube c....
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....s where publicity would prejudice the interests of justice. 3. Any request for a hearing to be held in camera made under paragraph 1 of this Rule must include reasons and specify whether it concerns all or only part of the hearing." Available on the official website of the ECHR at: https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf 46 Available on the official website of the ECHR at: https://www.echr.coe.int/Pages/home.aspx?p=hearings&c 47 "Section 169 The hearing before the adjudicating court, including the pronouncement of judgments and rulings, shall be public. Audio and television or radio recordings as well as audio and film recordings intended for public presentation or for publication of their content shall be inadmissible." English version of The Court Constitution Act available at: https://www.gesetze-im-internet.de/englisch_gvg/englisch_gvg.html 48 English translation; In German, Gesetz zur Erweiterung der Medienöffentlichkeit in Gerichtsverfahren und zur Verbesserung der Kommunikationshilfen für Menschen mit Sprach- und Hörbehinderungen (Gesetz über die Erweiterung der Medienöffentlichkeit in Gerichtsverfahren- EMöGG), available....
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.... its hearings in Ireland is available on the official website of the Supreme Court at: https://www.supremecourt.uk/news/access-to-supreme- court-hearings-in-belfast.html 58 Research and Information Service Briefing Paper on Broadcasting in Courts, available on the website of the northern Ireland Assembly at: http://www.niassembly.gov.uk/globalassets/documents/raise/publications/2012/justice/381 2.pdf 59 See Report on Contempt of Court by the Law Reform Commission of Ireland, Chapter 4.43, available at: http://www.lawreform.ie/_fileupload/Reports/rContempt.htm 60 See: https://www.bbc.com/news/world-europe-41732226 61 See Audio-Visual Coverage Of Court Proceedings In A World Of Shifting Technology by Itay Ravid available at: http://www.cardozoaelj.com/wp-content/uploads/2017/02/35.1-Ravid.pdf 62 Title 70(b) of Act, 'Prohibited Publications'; Israeli Courts Act available in Hebrew at: http://www.wipo.int/wipolex/en/details.jsp?id=15289 63 See: https://www.ynetnews.com/articles/0,7340,L-4592208,00.html 64 "10.5 Appendix E: Supreme Court media guidelines 1. Subject to paragraph (5), all applications to televise or otherwise record proceedings of the Supreme Court will be deeme....
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....issued by the Judicial Office for Scotland available on the official website of the Scottish judiciary at: http://www.scotland-judiciary.org.uk/Upload/Documents/ConsultationDocument.pdf 69 [2005] CSOH 80 70 See Appendix IV to the Cameras and live text-based communication in the Scottish courts: a consultation link at footnote 68 71 See Para 5.5 onwards of the Cameras and live text-based communication in the Scottish courts: a consultation link referred to at footnote 68 72 See: Report of the Review of Policy on Recording and Broadcasting of Proceedings in Court, and Use of Live Text-Based Communications available on the official website of the Scottish judiciary at: http://www.scotland-judiciary.org.uk/25/1369/Report-of-the-Review-of- Policy-on-Recording-and-Broadcasting-of-Proceedings-in-Court--and-Use-of-Live-Text-Based- Communications 73 [2017] ZASCA 97 (21st June 2017) 74 See Senate hearings on 'A Bill To Permit The Televising Of Supreme Court Proceedings' on the official website of the US Congress available at: https://www.congress.gov/110/crpt/srpt448/CRPT-110srpt448.pdf 75 See Letter by Counselor to the Chief Justice, rejecting live broadcast of oral arguments....
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....sion, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business... The term is distinguished from a court that is hearing evidence in camera or from judge that is exercising merely magisterial powers. 2. A court session that the public is free to attend..." 11 Supra note 7. 12 Supra note 2 at page 316-317. 13 House of Lords, as per Lord Diplock in AG v Leveller Magazine, [1979] AC 440, at page 450. 14 Ibid. 15 High Court of Australia, as per Gummow J in Grollo v Palmer, [1995] HCA 2. 16. Ministry of Justice, UK, Proposals to allow the broadcasting, filming, and recording of selected court proceedings, making recommendations, 2012. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217307/broa dcasting-filming-recording-courts.pdf 17 Supreme Court of United States in Richmond Newspapers, Inc. v Virginia, 448 US 555 (1980). 18 (1966) 3 SCR 744. 19 Supra note 1. 20 (1985) 3 SCC 545. 21 (1992) 3 SCC 637. 22 (2010) 4 SCC 653. 23 Telecom Regulatory Authority of India, The Indian Telecom Services Performance Indicators January-March, 2018. Available at: https://trai.gov.....
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....ww.scc-csc.ca/media/acc-eng.aspx 65 Daniel Stepniak, 'Audio Visual Coverage of Courts, A Comparative Analysis,' Cambridge University Press (2008). 66 Ibid. 67 Supra note 62. 68 Ibid. 69 Ibid. 70 Ibid. 71 Ibid. 72 Supra note 65. 73 Ibid. 74 Ibid. 75 See supra note 65. 76 High Court of Australia, Press Release, 01 October 2013. Available at: http://www.hcourt.gov.au/assets/news/MR-audio-visual-recordings-Oct13.pdf. 77High Court of Australia, Photography and Recording Guidelines. Available at: http://www.hcourt.gov.au/about/photography-and-recording 78 Ibid. 79 Ibid. 80 Supra note 65 at page 210-211. 81 Ibid. 82 See supra note 65. 83 New Zealand, Report to Chief Justice on In-Court Media Coverage (2015), at para 7. Available at https://www.courtsofnz.govt.nz/In-Court-Media-Review/In-Court-Media- Review/ReporttoChiefJusticeonincourtmediacoverageF6_7_15_20150720.pdf 84 Ibid, at para 15. 85 Ibid, at para 14. 86 New Zealand, In-Court Media Coverage Guidelines (2016). Available at: https://www.courtsofnz.govt.nz/going- to-court/media/rules-and-resources/INCOURTMEDIACOVERAGEGUIDELINES2016T.pdf 87 Ibid. 88 Ibid, at para 2.1. 89 Ibid, at para 5.5. 90 Ibid at para 2.3....