Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
Closed Expands Expression
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The Supreme Court of India ruled that proceedings of cases before the Supreme Court of constitutional and national importance should be broadcast to the public. This case had been brought to the court by various petitioners, representing the public interest, arguing that such public broadcast would further the principle of open justice and open courts. The Court held that the ability to view live broadcasts of the Supreme Court proceedings flowed from the right of access to justice in the Constitution, but said that this right should not be absolute and provided a set of Model Guidelines which should govern the courts’ discretion on when such broadcast should be used.
In 2017, various individuals and groups (including Swapnil Trapathi, Indira Jaising, Mathews J. Nedumpara and the Centre for Accountability and Systemic Change) filed petitions before the Supreme Court of India under article 32 of the Constitution seeking a declaration that “Supreme Court case proceedings of ‘constitutional importance having an impact on the public at large or a large number of people’ should be live streamed in manner that is easily accessible for public viewing” (para. 1). In addition, they sought guidelines from the Court to enable the future determination of cases that would qualify for live streaming. The petitioners based their argument on the 1996 Supreme Court case of Naresh Shridhar Mirjkar v. State of Maharashtra  3 S.C.R 744 which had held that article 19 of the Constitution included the right of journalists to publish reports of court proceedings. In that case the Supreme Court had emphasized “the efficacy of open trials for upholding the legitimacy and effectiveness of the Courts and for enhancement of public confidence and support” (para. 1).
Khanwilkar J delivered the majority judgment on behalf of himself and Chief Justice Misra. Chanrachud J delivered a separate concurring judgment. The Court had to determine whether live streaming of court proceedings should be introduced in India, and if so, under what conditions.
The Court acknowledged that there was “unanimity between all protagonists that live streaming of Supreme court proceedings at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning” [para. 8]. The Petitioners argued specifically that live streaming would further the concept of open justice that was guaranteed as a part of the access to justice and as a facet of the right to know. In addition, they submitted that live streaming would improve productivity by removing the need for individuals to attend court in person which necessitates them taking leave from work [para. 3].
The Court requested that the Attorney General “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 the relief claimed … was to be granted” [para. 4].
The Court set out the importance of the rights implicated in this case, and the need to balance the rights to access to justice with the privacy of the litigating parties and the dignity of the courts. It referred to the Mirajkar case which had held that the right to freedom of expression under article 19 should be interpreted to allow journalists to carry on their occupation by attending Court proceedings. Article 19 states “all citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions or co-operative societies; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) [deleted in 1979]; (g) to practise any profession, or to carry on any occupation, trade or business”. The Court explained that the judgment in Mirajkar had held that journalists’ rights under subsection (a) to freedom of expression, read with their right to attend court proceedings under subsection (d) and their right to carry out their work as a journalist under subsection (g) meant that they had a “right to publish a faithful report of the proceedings which they had witnessed and heard in Court as journalists” [para. 1]. The Court emphasized that the Mirajkar case had “in no uncertain terms, expounded that open trial is the norm” but that this did not exclude the possibility that some circumstances will require trials to be heard in camera (in a closed session) [para. 7]. Accordingly, the Court held that it “may be appropriate to have a proper and balanced regulatory framework before the concept of live streaming … is put into action” [para. 7].
The Court noted that “the right of access to justice flowing from Article 21 of the Constitution” which protects the right to life and protection of liberty, “would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts” [para. 2]. In addition, the Court commented that the State has an obligation to spread awareness about the law to enable individuals to understand the law as they cannot plead ignorance of the law. The Court also remarked that it was “now well settled” that article 19(1)(a) confers the right to know and receive information and so the public is entitled to witness Court proceedings [para. 3]. Additionally, it linked this right to receive information with the value of dignity.
The Court accepted that “[i]ndisputably, open trials and access to the public during hearing of cases before the Court is an accepted proposition” and noted that although there was no express protection for an “open Court hearing” in the Constitution, article 145(4) did stipulate that all judgments were to be delivered in open court and section 327 of the Code of Criminal Procedure, 1973 and section 153-B of the Code of Civil Procedure, 1908 requires courts to be open [para. 6].
The Court noted the potential of live streaming in allowing the public to witness legal proceedings that they would otherwise be unable to access and so commented that “technological solutions can be a tool to facilitate actualization of the right of access to justice” [para. 8]. This led to the Court characterizing the use of live streaming as being to “’virtually’ expand the Court room beyond the physical four walls of the Court rooms” [para. 9], and that “technology has the potential to usher in tangible and intangible benefits” [para. 9]. The Court added that the use of technology “can epitomize transparency, good governance and accountability”, and that introducing it into the court room could facilitate education about the workings of the court [para. 9].
The Court recognized that in 2014 the Advisory Council of the National Mission of Justice Delivery and Legal Reforms had proposed introducing audio-video recordings into Court proceedings on an experimental basis but that a final decision was deferred until the judges of the Supreme and High Courts could be consulted. The Court acknowledged the importance of involving judges in any decisions regarding the use of live streaming in court proceedings to “ensure that the dignity and majesty of the Court is preserved, and, at the same time, address the concerns of privacy and confidentiality” and to prevent unrest [para. 10].
The Court undertook a thorough comparative analysis of the use of live streaming in other jurisdictions. It noted that Australia begun including audio-visual recordings of all High Court (their Apex Court) proceedings on its website from October 1, 2013. However, these proceedings are not live, but are made available within a couple of days of the proceedings. The lower Courts in Australia have no set rules on broadcasting. In Brazil the judiciary owns a television and radio station on which Supreme Court and Superior Court of Justice proceedings are broadcast. There is also a YouTube channel which broadcasts the Supreme Court proceedings. The Canadian Supreme Court proceedings have been broadcast on a dedicated television channel since 1994 and have been streamed on the court websites since 2009, and the lower courts make broadcast decisions on a case-to-case basis. In China, live streaming and recorded broadcast is being introduced across the judiciary. Legislation in 2005 in England ended the criminalization of recording court proceedings and allowed the broadcast and live streaming of Supreme Court hearings in England, Scotland and Northern Ireland. The European Court of Human Rights proceedings are broadcast on the Court’s website, the International Criminal Court has delayed streaming to allow the redaction of confidential information and the International Criminal Tribunal for Yugoslavia has a YouTube channel and social media accounts with various clips from proceedings. Although Germany allows broadcast of proceedings this is subject to strict legislative restrictions. Ireland allows broadcast of proceedings, but this is on a case-by-case basis and is rarely used. In Israel live broadcasting has been allowed since 2014. New Zealand has guidelines which govern the broadcast of their court proceedings. In South Africa the right to freedom of expression was used to allow for the broadcast of criminal matters and the Supreme Court of Appeal set out guidelines to be considered by Courts in determining whether to allow broadcast of specific cases. The United States Supreme Court has allowed oral recordings of its hearings since 1955 but does not allow video broadcasting, and lower courts allow broadcast subject to guidelines.
The Court referred to the guidelines proposed by the Attorney General to govern the live streaming of proceedings in India and stated that it agreed with them in general. It noted that the process should be executed in a “progressive, structured and phased manner, with certain safeguards to ensure that the purpose of live streaming of proceedings is achieved holistically and that it does not interfere with the administration of justice or the dignity and majesty of the Court” [para. 14].
The Court concluded that “[b]y providing ‘virtual’ access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants” [para. 12]. The Court recognised that article 129 of the Constitution allows for the Supreme Court to publish court proceedings so that “acts and proceedings are enrolled for perpetual memory and testimony” [para. 13] and said that the live streaming would “be an affirmation of the constitutional rights bestowed upon the public and the litigants in particular” [para. 13].
The Court acknowledged that the right of access to justice must be balanced with the privacy rights of litigants or witnesses and so there needed to be a proper regulatory framework to govern the streaming of the proceedings. The Court noted that although there was a presumption that proceedings were open until a court had directed that the matter be held in camera, the use of live streaming may result in “genuine reservations” and concerns over the privacy and dignity of witnesses or parties. Accordingly, the regulatory framework should ensure that parties provide prior consent to the use of live streaming [para. 13].
The Court stated that a pilot project should be introduced which should apply only to specific cases of constitutional and national importance and that the court hearing the case must provide written permission for the broadcasting to occur. In addition, prior consent of all parties would have to be obtained, and the presiding judge would have full discretion to make the decision on whether the case could be broadcast, and the live broadcast would have to have a time delay to allow for editing of confidential information. The judge’s discretion would be final and non-justiciable and non-appealable. In addition, that court could revoke a decision to broadcast at any stage during the proceedings. The Court set out the considerations that the presiding judge should take into account when determining whether the matter should be broadcast: whether there was unanimous consent of the parties involved; the sensitivity of the subject matter; and any other reason “considered necessary or appropriate in the larger interest of administration of justice” including whether the dignity of the court or the fair trial rights of the parties would be threatened [para. 14].
The Court noted other measures that could be taken into account to ensure efficient management of the project. This included the appointment of a technical committee of video recording and operating experts and rules that cameras could only focus on the participants during argument. In addition, the Court noted that it should retain copyright over all recordings and that reproduction and re-broadcasting of the material be prohibited under copyright laws.
The Court concluded that live streaming should be accepted “so as to uphold the constitutional rights of public and the litigants” and that it had sought to balance the interests of “administration of justice, including open justice, dignity and privacy of the participants to the proceedings and the majesty and decorum of the Courts” [para. 18].
The concurring judgment emphasized the principle of open justice and provided a detailed analysis of its application in modern judicial systems. This judgment highlighted that the “principle of an open court is a significant procedural dimension of the broader concept of open justice” [para. 5]. With reference to the U.K. House of Lords case of AG v. Leveller Magazine the Judge commented on the role open courts play in building public confidence of the administration of justice and discussed how this helps to preserve the “rule of law and to maintain the stability of the social fabric” [paras. 6-7].
The judgment confirmed that the “concept of open courts is not alien to the Indian legal system” [para. 8] and provided an analysis of the Indian jurisprudence and legislation in this respect. The judgment noted that the Mirajkar case solidified a set of important principles in Indian jurisprudence: that “open courts serve as an instrument of inspiring public confidence in the administration of justice”; that “[o]pen courts act as a check on the judiciary”; that “publicity of the judicial process is the soul of justice”; that “open courts are essential for the objective and fair administration of justice”; but also that the administration of justice is the paramount objective and so open justice can be limited when it so demands [para. 9].
The judgment also referred to the Indian case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 which had “reiterated the value of a hearing in emphasising the principle that justice must also be seen to be done” and so had illustrated that the means of justice are as important as the ends [para. 10]. It also mentioned the cases of Life Insurance Corporation of India v. Manubhai 1992 (3) S.C.R. 595 and Mohd. Shahabuddin v. State of Bihar (2010) 4 SCC 653 in highlighting the importance of open courtrooms in assisting the dissemination of information and informing of opinions about the judicial process [paras. 11-12].
The judgment placed the issues in the present case in the context of the reality of daily life and commented that “[t]he impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings … due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings” [para. 13]. In assessing the role technology could play in facilitating the open court principle, the judgment recognized that “[t]echnology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of state institutions” [para. 14] and noted various ways in which the Indian judiciary had embraced technology, such as creating a mobile app.
This judgment summarized why live streaming of proceedings would be beneficial: it allows immediate, virtual access to courtrooms and would remove physical barriers to attending court; it would facilitate the right to know about court proceedings and reduce the reliance on second-hand narratives and assist in legal education; it would “enhance the rule of law and promote better understanding of legal governance as part of the functioning of democracy”; and that as “sunlight is the best disinfectant” live streaming would enhance judicial accountability and transparency [para. 18].
This judgment also undertook an analysis of the situation in comparative jurisdictions and identified some common trends, including the requirement of a minimal delay in live broadcast, that the court retains copyright of the broadcast, that the presiding judge retains discretion to regulate the broadcast, the importance of beginning with a pilot project, and the potential for exclusion from broadcast of certain cases [para. 20].
This judgment ends with a set of model guidelines for live streaming proceedings.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment is a significant decision in how it develops the concepts of Open Justice, access to public information and transparency in the judicial process. Though the judgment only directs that certain proceedings in the Supreme Court be live-streamed for the time being, it has opened the doors for live-streaming to be extended to all proceedings in the Supreme Court, proceedings in High Courts and proceedings in lower courts with time.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The judgment was delivered by a three-judge bench of the Supreme Court and establishes a binding precedent on all courts throughout the country.
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