In the nearly two decades or so that I had carriage of most of the defamation cases at The Canberra Times in several executive roles, I always dreaded the solicitor’s letter.
The odds were stacked against media defendants – we were reviled by the politicians who made the law and detested by the judiciary who interpreted it.
You knew the letter meant trouble – costly trouble. But there were exceptions. When the letter referred to “an article written by Roderick Campbell” – invariably a court report — you’d know the boot was on the other foot.
Those letters were rare because before writing a letter most solicitors would find there was no substance to the claim. But some people still tried it on. I can recall two arising from Rod’s work. In both cases complainant was subsequently jailed. There was no correction, no apology and no damages as demanded by the solicitor whose client was so “grievously defamed”.
Rod died this week after two and half decades covering the courts for The Canberra Times. So it’s an apposite time to look at court reporting.
Some journalists think that covering the courts is a fairly easy round. No digging about. No endless phone calls with people refusing to comment. It’s all there in public in front of you. All you have to do is take it down. Not only that, the hours are good compared to most other journalists’ work – you can always rely on the judge to shut up shop at 4pm.
But it is not quite like that. Covering the courts it a bit like being in the military – long periods of boring inactivity interspersed with short bursts of adrenalin-pumping drama and action.
Often it is highly reportable action in happening in two or three places at once: a bail hearing for a celebrity; a jury returning; a judgment in a civil matter and so on.
And it is not all in front of you. Often it is hard to work out what is going on. The lawyers, judges and parties will have read a great deal of material before a case starts and the case will be run with much of that knowledge assumed.
Often information critical to a newspaper article will simply not come out in court.
Then we have what I call the trapdoor problem. Defamation law gives protection for fair and accurate reports of court proceedings. If a party or witness is denounced as a liar and thief you do not have to prove they are a liar or thief, only that you reported it fairly and accurately.
The trouble is that a large amount of what goes on in court shows someone up in a bad light. Accusations get bandied about. It means if you make an error you are almost invariably going to create an actionable defamation.
Errors in non-court reporting, on the other hand, are much less likely to result in defamation. It may be regrettable that you report someone’s hair as being brown when it is black but it is not defamatory.
However, if you mix a copper’s name with a defendant’s name in a court report, you go down the trapdoor.
Court reporting has changed quite a bit in Australia in the past decade, for several reasons.
The internet has had a large impact on reporting civil matters. Full judgments are on the internet usually within minutes of being handed down. The need for detailed reporting is therefore less acute.
Reporting of the High Court seems to be forever shrinking – in inverse proportion to the volume of judicial output. There is good reason for this, aside from judgments being on the net. First, the days of great Federal-State courtroom tussles over constitutional power have largely gone. The Commonwealth pretty well does what it likes under a political, rather than legal, head of power: the Commonwealth can bribe and bully the states into submission on anything.
Secondly, legislation has crept into every area of human endeavour. The great common-law pronouncements in tort and contract are no more. So the news has migrated to the legislature. Sometimes, the courts are dealing with cases dependant on legislation since repealed or changed. Not very newsworthy.
Thirdly, the judges of the High Court and other superior courts – with some exceptions – seem more likely these days to make decisions on narrow grounds and not expound in a newsworthy way on wider matters.
Further, the economics of newsgathering militate against detailed court reporting. It is time consuming. The family-dominated newspaper empires have been replaced with wider shareholdings. The former were willing to stomach lower returns in return for the power and prestige of media ownership. The latter treat media like margarine production: profits first.
Sadly, this economic pressure moves reportage from the courtroom to the easy soundbite outside.
And, with fewer or no reporters present, the temptation for a barrister’s newsworthy rhetorical flourish dies. For example, I cannot imagine another Michael McHugh (defending Lindy Chamberlain) opening an appeal, as he did, with the words, “Who is this latter-day Lady Macbeth and where is the blood on her hands?”
Further, court reports have to compete against so much else going on.
The courts, of course, still provide great newsworthy events – the resolution of great conflicts and the dispensing of justice to miscreants. But the days of detailed court reports and lots of them are over.