The Irish courts are in the midst of making changes that will make it easier for those they consider The Right Sort to report on cases, and make it harder for The Wrong Sort.
This, officials say, is meant to balance the constitutional principle that justice shall be administered in public, with the right to a fair trial. But if those are the goals, this is the wrong approach.
Instead, the courts should just focus on engaging with anyone who wants to cover a case and helping them do it right. There are already ample legal sanctions available to deter bad behaviour, and punish it if it occurs.
The courts should also do more to end the system of doling out information to reporters based on “relationships”, and instead go further in embracing a more formalised system of providing the information necessary to cover a case fairly and accurately to all.
Having more cases conducted in public view – by having a broader, more diverse group of people reporting on more proceedings on all kinds of media platforms – is likely to improve trust in the institution, and its results. Presumably that’s why that clause is in the constitution.
“More information about how courts and trials work, from more reporters, will do more than a pointless ban [on The Wrong Sort using Twitter in court,] which will do nothing to address bad-faith actors or biased reporting,” said journalist Gerard Cunningham.
On Saturday 17 November, the Courts Service and the National Union of Journalists’ “Dublin P&PR Branch” put on a seminar for journalists that touched on accessing court papers, and issues dealing with social media and the courts.
Dozens of journalists came from all over the country, travelling in from the West or walking over from other parts of Dublin. Many of them cover the courts primarily, or at least regularly.
Commanding this audience for the day was Gerry Curran, media relations advisor for the Courts Service, and a member of the NUJ’s National Executive Committee, who served as both emcee – introducing guest speakers such as NUJ president Sian Jones and Chief Justice Frank Clarke – and as a speaker himself.
On the agenda were three recent initiatives that seek to give special privileges to journalists who the courts consider The Right Sort, and place barriers in the way of those who they consider The Wrong Sort.
One of these initiatives was widely reported after the seminar: Chief Justice Frank Clarke announced a new rule allowing what I am calling here The Right Sort (“a practising member of the legal profession” or “a bona fide member of the news media profession or professional legal commentator”) to text or post on social media from court, and barring what I am calling The Wrong Sort from doing so.
“As stated by the Chief Justice, the aim of the practice direction banning members of the public live tweeting court cases and the like is to ensure the integrity of the trial process,” says Francesca Comyn, legal affairs correspondent with the Sunday Business Post.
“Whether it is necessary or will prove effective is another matter. It may stop some inadvertent reporting of legal argument during a high-profile jury trial, but whether it will stop a repeat of the sort of commentary in the Belfast rape trial or in the Jobstown case is questionable because most of that is not coming from within the court room,” she said.
The second of the initiatives discussed at the Saturday seminar gives The Right Sort new access to court documents, but not The Wrong Sort.
“Routine access to court documents for journalists was a hard won fight,” Comyn said. “It puts a burden on registrars too which may partly explain the restriction on open access. After all, they hold a single copy of paper documents which is briefly lent to a journalist at the end of a court session. In reality, access to documents should be electronic. That seems to be the way the system will go.”
The third was an initiative by the Law Reform Commission that may in future lead to legislation that would give The Right Sort greater protection from defamation suits, and give The Wrong Sort less protection on this front.
The Right Sort vs The Wrong Sort
Who is The Right Sort, and who is The Wrong Sort?
While speaking at the seminar Curran talked about a division between “bona fide journalists”, who he seems to respect, and “hobby journalists”, who he seems to disdain, and who he said he won’t “engage with”.
This term “bona fide journalists” appears in both the chief justice’s “practice direction” on tweeting from court, and also in guidelines for giving reporters access to documents.
In relation to accessing documents, Curran said later by email, “Access is extended to this grouping of journalists as they are identified as exempt from elements of GDPR restrictions – in the regulations themselves, in the Data Protection Act, and in Court Rules drawn up for the purposes of allowing access.”
According to the guidelines, a “bona fide” journalist is someone who: has an NUJ card; and/or is writing for a news organisation that’s a member of the Press Council or licenced by the BAI; and/or has a card from the International Federation of Journalists.
The Data Protection Act 2018 says some documents can be given “to a bona fide member of the Press or broadcast media”, but does not contain a definition of this term. The definition was “developed some years back by the judges and members of our Family Law Committee – to enable reporters cover family law hearings”, Curran said, by email.
What this does is “create the idea of an officially approved and licensed journalism. And that is a bad idea,” says journalist Gerard Cunningham. “Before we give new powers to any organ of the state, we should always ask how those powers can be abused by the worst people.”
One of the ideas behind this definition is to make sure everyone covering the courts has signed up to follow an ethical code of conduct, such as those of the NUJ or the Press Council. This is meant to ensure that the people covering the courts know and follow the rules meant to ensure fair trials, which is very important of course.
However, contempt-of-court and defamation laws are already in place to deter people from ignoring the rules and punish them if they do, whether they are a gardener with a Twitter account, or a courts correspondent at a national newspaper with an NUJ card. (Which would you fear more, a rap on the knuckles from the NUJ, or a a financially ruinous defamation suit?)
So making this division into The Right Sort and The Wrong Sort will do little to help ensure the reporting rules meant to ensure fair trials are known or observed by all who cover courts, and it instead may narrow the pool of people reporting on court cases, and thus the number of court cases that are reported on.
“There’s … a lot of kind of cases that go on within the courts that are maybe of interest to a smaller number of people than a national newspaper, like environmental cases, information access cases, some of these things – and there’s not going to be journalists there, so it’s either people involved, NGOs, charities, kind of campaigners, either they tweet about it or we know nothing about it, except whatever judgment is published,” says DIT lecturer and journalist Ken Foxe.
The Wrong Sort might include an activist monitoring victim-blaming defences used by barristers representing men accused of rape; or a law professor working on a journal article about the court system; or, perhaps, someone who gets on the wrong side of a judge or court clerk.
After all, the guidelines appear to leave leeway for these people to decide who will be allowed to tweet or message from court, and who will be given court documents. More on that later.
The Wrong Sort could now be prohibited from live-tweeting the proceedings of a case they are observing, and would not be given access to courts documents related to the case that are available to the Right Sort.
Perhaps most seriously, if one of the Law Reform Commission’s ideas is made law, The Wrong Sort would be more exposed than The Right Sort to defamation suits based on their court reports.
Discretion in the System
Curran said by email that “There is no ‘discretion’ for the Courts Service within the regulations / rules as to who from the group of ‘bona fide’ journalists might access info or not …”
However, the guidelines for accessing criminal court documents do not say the court “shall” give over documents to anyone who meets the definition of “bona fide” journalist; they say the court “may” give over these documents, which appears to leave leeway to not hand them over.
Furthermore, on a separate issue, the “practice direction” for judges on tweeting and messaging from court also appears to allow for discretion. The people who may tweet or message from court include “a bona fide member of the news media profession or legal commentator whose professional standing is established to the court’s satisfaction …” (emphasis mine).
Finally, there appears to be some wiggle room in who is judged The Right Sort. The guidelines on accessing both criminal and civil court documents have a note at the bottom that says:
“Where the above criteria cannot be met – and where the person might still seek to be treated as a bone fide member of the media – in order to establish accreditation and access to court information – a person will need to apply to the Courts Service Media Relations Office …”
And, Curran said by email that “Where a journalist has a specific difficulty in fitting into the definition of ‘bona fide’ journalist they can contact our media relations office for advice. We have already advised journalists in this regard – with positive outcomes.”
This is kind of good, right? Judges and court clerks and whoever probably need some discretion to deal with unusual cases and help out worthy parties in special instances?
Well, maybe, but it also gives these people leverage over the reporters, potentially allowing them to sanction reporters whose stories or approach they do not approve of, setting up a system of “access journalism”, which can be problematic.
Courts reporting in Ireland has long relied on an informal system of journalists building relationships with people at the courts and convincing them to give them the documents or other information they need to write their reports.
This meant staying on the right side of the clerk, or the judge, or the barrister, or whoever was critical to a journalist being able to do their job. The new guidelines on access to courts documents appear to go some way towards formalising this system, but it’s not enough.
The people running the courts still appear to have have leverage over the people reporting on them and on court cases, and the ability to deny these reporters the information they need to do their job, and make their living. That’s a lot of power.
“When you’re entirely reliant on kind of grace and favour from quite powerful people it puts journalists in a very vulnerable position in my view,” says Foxe, who is also part of transparency advocates Right to Know. “So, you’re totally dependent on these people as a source of information. And it means that automatically you’re on kind of walking on eggshells.”
So what if the judge decides you haven’t established your professional standing to the court’s court’s satisfaction? Or what if a criminal court clerk looks at that “may” in the guidelines and decides not to give you that document? Or what if you don’t strictly meet the definition of “bona fide” journalist and the media relations office decides it doesn’t have time to help – in your case?
You’ve got to keep on the good side of all these people, so you can do and keep your job, right? This is an essential feature of the kind of “access journalism” that blights crime reporting (where the Gardaí hold power over the journalists who cover them), and political reporting (where politicians and special advisers hold the leverage).
“These are serious ethical issues for journalists and ones that journalists are hypersensitive about. If you even bring up the suggestion that it might have an influence on how they report on things they go absolutely crazy,” Foxe said.
A Better Approach
Instead of putting in new guidelines to divide The Right Sort from the Wrong Sort, the courts should work with anyone who wants to cover them to make sure they know how to do it while ensuring those involved still get a fair trial, and that there is a formalised system for everyone to get the documents they need to do it accurately, regardless of who they please or displease.
Curran said by email that the Courts Service already engages with a long list of people who want to cover courts, to tell them how to do it right, and get them the information they need to do it well, from professional journalists, to freelancers, to students. The Courts Service also engages with universities, colleges, centres of further education and adult education centres, among other places that teach or study journalism.
“We take the view that anyone studying or working in this general area could well end up covering a court case at some stage in their career, and so as they do their work without interfering with the process of a fair trial, we explain the court-reporting rules,” Curran said. “We have been doing this outreach work to the general communications, education and training sectors for over 15 years.”
That is all great, and to be commended. But if all these people can be shown how to report on courts properly, and there are laws in place to deter bad behaviour and to punish it if it occurs, why create categories of people who are judged The Right Sort and given privileges in court reporting, and people judged The Wrong Sort?
“I imagine the reason for this effort at division is to ultimately stop non ‘bona fide’ journalists from court reporting or at least scare them off,” said Broadsheet journalist Olga Cronin.
—with additional reporting by Lois Kapila