By Rachel Simpson

Reading and talking about controversial court trials has become a form of popular cultural entertainment. Modern technology has made it extremely easy for the media to tirelessly follow trials, sending out endless updates on every detail. But when the trial becomes a morality tale and the life of the victim becomes public property, we must ask what purpose this serves. Is the media fulfilling its right to free speech and informing the public, or is it simply spectacularising the trial to garner more attention, and/or reinforce a dominant societal narrative?

As the media has become more and more pervasive, there has been significant legal discussion about how a highly publicised and sensationalised trial might influence or pressure a judge and jury, removing the constitutional right to a fair trial.[1] But there has been less discussion on the ethics of court reporting, which will be discussed here.

The Trial as a Spectacle

Humans have always had a morbid fascination with crime and misdemeanour.[2] But with the modernisation of technology and the rise of consumer culture, the media is able to permeate more spaces. The court trial has become more accessible than ever before.

Like elections and wars, which often simplify real issues into narratives and folklore, the highly publicised court trial has become a “spectacle”. This is how Guy Debord refers to our sensationalised and warped media landscape. The spectacle is the world reduced to easily consumable images, presented to a subdued modern society that wants nothing more than to believe what is comfortable. [3]

“In the spectacle, which is the image of the ruling economy, the goal is nothing, development everything. The spectacle aims at nothing other than itself.” – Guy Debord, 1967

To illustrate, people involved in court trials can be simplified into various “types” that serve a certain narrative. In wartime Britain when women’s suffrage was feared by the public, exotic performer Maud Allan was put on trial as her alleged lesbian affairs were thought to link her to German espionage. The British public was obsessed with the trial, but what was largely ignored was the second woman – Maud Allen’s lover, the Prime Minister’s wife. By focusing on Maud Allan as a cautionary tale of undesirable femininity, the media was able to create a spectacle that was easy for the public to consume.[4]

Because of the nature of the spectacle, it attempts to take up as much space in our lives as possible. During a highly controversial court trial the media will often both perpetuate and comment on the frenzy, generating the publicity in the first place and then actively commenting on the likely effect the coverage will have on the trial. The lawyers and judges involved reach celebrity status, crafting their speeches to be consumed by a mass audience. Suddenly the trial is everywhere and, in order to keep the public engaged, it is more theatrical than judicial.[5]

None of this means to say that heightened public awareness about the law is not necessary. Memorable trials become the barometers of social thought, and the media is an avenue in which discourse is not just confined to the authority of experts and professional elites.[7] As Steyn LJ said in a 2005 appeal to the British House of Lords, “full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law”.[8] Public discussion is important and a fundamental right, but nowadays our public discussion tends to arise as a result of media that is constantly badgering for our attention in a consumer society. Our discussion is always potentially subject to manipulation through the very institutions of media that created it.[9]

The Legality of Publicised Trials

In most jurisdictions, if the media publishes a story that deprives someone of the constitutional right to a fair trial by publishing information that could unfairly influence the judge or jury, taxpayers will have to pay for a second trial.[10] The media can face post-publication liability, where they are subject to a pay-out, but prior restraint in publishing stories that could harm a case is only required in a few instances, at the judge’s discretion.[11]

Former United States District Court Judge Fred M. Winner makes the following observation on the American media and the courts:

 “The only thing the media thinks is more sacrosanct than the First Amendment [freedom of the press] is a media bank account. I am all for relying on media decisions on what should be published so long as the press can be held liable in hard, cold cash for excesses which take away constitutional rights.”[12]

Here it is argued that it is economically efficient to allow the media to have free reign – media outlets won’t cover anything truly incriminating because they fear the cost. To Fred M. Winner, there is no point in restricting the media, because they effectively regulate themselves.

The first issue with this approach is that incriminating articles may still get published and viewed by the public before the media is held liable. Prior restraint in media reporting is not presently functioning in a uniform way, so the courts have no choice but to resort to the power of the law of contempt, in other words, post-publication liability.[13] Second of all, there is still no way to regulate media activity that seeks to pry, scandalise, and make spectacle of the proceedings of a trial.

It is customary for courts to have guidelines on what the media can do. In cases involving things such as child abuse, the judge can even call for the media to be removed in the reasonable interest of all parties involved.[14] But these are simply guiding principles, not parliamentary statute that can be enforced.

New Zealand is unique in that we do have a law that restricts the media for moral reasons. Name suppression was introduced under section 9 of the Offenders Probation Act 1920,[15]  and was the first time the media was limited in what they could report from court.[16] Hansard transcripts show that the purpose of the policy was to give first-time offenders a chance to re-enter society. But apart from that, the Bill faced very little parliamentary debate. The year was 1920, and during the same parliamentary session, one member raised concerns about Indian workers being employed on a roadwork in the Wairarapa and whether they should be paid the same rate as "white men".[17] Evidently, the policy is from a very different time. There is room for modern ethical restrictions on the media to be thought through.

Proposed Changes

It would be a disservice to not discuss New Zealand’s own highly publicised trial, one which involved the British backpacker Grace Millane, murdered on New Zealand soil.

The situation was unfortunately tailor-made for consumption in the modern media landscape. It involved a young, attractive white woman, and played on existing public fears about dating apps, solo travel, drinking and promiscuity.[18] The myth-making and cautionary tales began as soon as Millane went missing. This way, her life became public property.

The trial was sensationalised before it even began. The judge and the lawyers were first introduced, and by the end of the trial some became household names. Later on, New Zealanders received hourly updates, with The New Zealand Herald publishing things as sensitive as CCTV footage and the contents of Millane’s phone.[19] Name suppression was in place to protect the accused, but the media was already disproportionately focused on Millane, her personality, her life, her family, what sort of example she might be to young women. The media truly had free reign, and as RNZ reporter Anna Rawhiti-Connell asked, “what public good is being served here?”[20]

Judges have already recognised the damage the modern media spectacle can have on a trial. When balancing the right to a free press,[21] and the right to a fair trial,[22] the court does have the ability to limit one right in order to uphold another.[23] There is no hierarchy of rights, but in cases involving the media being held in contempt, there is legal precedent that the right to a fair trial will often prevail.[24]

In highly publicised trials the jury is now sequestered from media access, and as Lord Denning said, “no professional judge would be influenced in the least by… the newspapers, even if he read them, or on the television, even if he watched it”.[25] The trial might be “fair” in the sense that it was decided by the correct course of law, but can we consider a trial to be fair if the prying and moralising of the media makes theatre of the victim’s suffering? It has already been recognised that the media is very much a part of a trial, thus the need to renegotiate boundaries between the courts and the media in terms of protecting the dignity of victims and their families should also be recognised.

The Broadcasting Act 1989 is the legislation New Zealand currently has to act as a check on the media. Section 4 outlines the responsibility of broadcasters, calling for them to observe good taste and decency,[26] and the privacy of individuals.[27] On controversial issues, broadcasters are also called upon to present significant and contrasting points of view.[28] But in a world of push notifications and hourly news updates, this is becoming increasingly difficult to regulate. The media is able to read this legislation in the broadest terms possible, ignoring that it was written in a time before social media, clickbait, and the money-making methods of ad revenue we have today.[29] An update on this legislation is recommended.

When considering what the media should refrain from reporting on, the law should also consider that just because a person has passed away does not mean they do not deserve protection. Justice Joe Williams recently remarked, when referring to the Peter Ellis case being reopened before the Supreme Court, that New Zealand could be a pioneer in considering the rights of those passed. In accordance with tikanga Māori, Williams said "There's nothing to say that the appellant's case dies when they do …this is a very Western idea that on demise you have nothing to protect."[30] This has generated heated discussion, but the Crown did concede that this approach was something they must be open to. This consideration is also recommended.

Concluding remarks

If an attractive white woman is treated badly by the media, it is fair to say that solo mothers, working class women, Māori and Pasifika women, gang-affiliated women and sex workers are treated a lot worse.[31] Lillian Hanly, news director of University of Auckland radio station 95bFM, explained that 95bFM has chosen to not report crime altogether, because it would be impossible to report on crime in a fair, accurate and consistent way with legal care. She notes that journalism practices tend to operate within the ‘dominant’ system or world view, and 95bFM chooses not to reinforce that view.[32] While trials can be an excellent way for the public to debate about values, it is not beneficial nor productive to reinforce harmful narratives. If the media landscape was centred on values rather than profit, reporters would be more inclined to exercise the utmost legal care to ensure the lives of victims do not turn into spectacle.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: flickr.com

[1] John McGrath "Contempt and the Media: Constitutional Safeguard or State Censorship" (1998) 2 NZ L Rev 371 at 371.

[2] Jessica Ferri “Why is Our Culture So Obsessed With Dead White Girls?” The Daily Beast, (New York, 28 October 2018).

[3] Guy Debord La société du spectacle (Buchet-Chastel, Paris, 1967) at 14.

[4] Lucy Bland Modern Women on Trial: Sexual Transgression in the Age of the Flapper (Manchester University Press, Manchester, 2013) at 214.

[5] Jon Bruschke and William E Loges Free Press v Fair Trials: Examining Publicity’s Role in Trial Outcomes (Taylor & Francis Group, Mahwah, 2003) at 1.

[6] Christopher Darden (u/Christopher_Darden) “Hi Reddit - I am Christopher Darden, Prosecutor on O.J. Simpson's Murder Trial. Ask Me Anything!” <https://www.reddit.com/r/IAmA/comments/6oybbr/hi_reddit_i_am_christopher_darden_prosecutor_on/>.

[7] Robert A Ferguson The Trial in American Life (University of Chicago Press, Chicago, 2007) at 1.

[8] Re S [2005] 1 AC 593 at [30] per Steyn LJ.

[9] Eugenia Lean Public Passions : The Trial of Shi Jianqiao and the Rise of Popular Sympathy in Republican China (University of California Press, California, 2007) at 209.

[10] Fred M Winner “Free Press-Fair Trial: A Simplistic Approach” (1976) 2(4) Litigation 5 at 51.

 [11] In Court Media Guidelines 2016, r 4.10

[12] Winner, above n 10, at 51.

[13] McGrath, above n 1, at 387.

[14] In Court Media Guidelines 2016, r 2(3).

[15] Offenders Probation Act 1920, s 9.

[16] Edward Gay “Name suppression: How the uniquely Kiwi 'hush hush policy' became law and morphed over a century” Stuff (Online ed, New Zealand, 20 February 2020).

[17] Gay, above n 16.

[18] Anna Rawhiti-Connell “It's time to redraw the boundaries on court cases that define women” RNZ (Online ed, New Zealand, 23 November 2019).

[19] Author has chosen to omit this reference

[20] Rawhiti-Connell, above n 18.

[21] New Zealand Bill of Rights Act 1990, s 14.

[22] Section 27.

[23] Section 5.

[24] Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45 at 48 per Eichelbaum CJ.

[25] McGrath, above n 1, at 378.

[26] Broadcasting Act 1989, s 4(1)(a).

[27] Section 4(1)(c).

[28] Section 4(1)(d).

[29] Ministry for Culture & Heritage, Digital Broadcasting: Review of Regulation (January 2008) at 10.

[30] Joel MacManus “Peter Ellis appeal derailed by legal curveball on possible tikanga Māori approach” Stuff (Online ed, New Zealand, 15 November 2019)

[31] “Nia Glassie abuse case” Wikipedia <https://en.wikipedia.org/wiki/Nia_Glassie_abuse_case>; and “Murder of Amber-Rose Rush” Wikipedia <https://en.wikipedia.org/wiki/Murder_of_Amber-Rose_Rush>.

[32] Correspondence from Lillian Hanly (News Director at 95bFM) to Rachel Simpson regarding crime reporting at 95bFM (4 March 2020).