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REPORTING COURT PROCEEDINGS BY THE MEDIA:THE USES AND ABUSES
ByProfessor Paul Obo Idornigie, SAN, PhD, FCIS, FCIArb (UK)
Head, Department of Commercial LawNigerian Institute of Advanced Legal Studies
Abuja, Nigeria*
(PROTOCOL)
Introduction
I would like to thank the Law Media & Social Justice Development
Initiative for giving me the opportunity to share my thoughts on this
topic – ‘Reporting Court Proceedings by the Media: The Uses and
Abuses’. In any society, the media has a major role to play – to
inform, educate and entertain. The power to carry out these
function can be derived from the international instruments,
constitution, statutes, common law, rules, regulations and
practices. Indeed, in the 1999 Constitution of the Federal Republic
of Nigeria as amended,1 the press, radio, television and other
agencies of the mass media are free to uphold the fundamental
objectives contained in Chapter Two of the Constitution and also
uphold the responsibility and accountability of the Government to
1*I would like to thank Osato Eruaga, Awele Ikobi-Anyali and Izu Egeruoh-Adindu of the Nigerian Institute of Advanced Legal Studies for carrying out the initial research for this work. Hereinafter referred to as “the Constitution”
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the people.2 More fundamentally, section 39 of the Constitution
provides for right to freedom of expression and the press.
With particular reference to court proceedings, a court is generally
a public place and court proceedings open to the public. This is
consistent with the common law principle of ‘open court’. This
simply means that court proceedings (trials, hearings and routine
matters) in which the public, including the media, may be present.
As is often said of legal rights, no right is absolute. Indeed to every
right, there is a corresponding duty. In any case, the right that
enures to the press to inform, educate and entertain carries with
the duty not to defame and infringe copyright laws nor commit
contempt of court. Similarly open court comes at a cost as it exists
in tension with two other rights – privacy and security.
The challenge we have is how to balance the rights of the media to
inform, educate and entertain with their duty to observe
constitutional and statutory provisions as they relate to the rights
of others especially the judicial officers.
An independent judiciary and a free press are constitutionally
guaranteed because they are essential features of a healthy
democracy. Media freedom entails a certain degree of
responsibility especially with ever-expanding technologies such as
2 The Constitution, section 22
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cable television, local radio networks, social media and the
Internet. These new methods of newsgathering have not only
increased awareness among the citizenry but has helped in
shaping executive, legislative and judicial decisions. The role of
organised media in ensuring that every information about
governmental actions including judicial proceedings are made
public and available to ordinary citizen cannot be over-emphasized.
In Nigeria, the media is given access to the court during
proceedings so they can report such proceedings through the
various mass media for the benefit of their readers and listeners.
However, in the course of reporting, liabilities may arise as a result
of not getting the proper information or lack of accurate editing and
therefore, untrue information may be passed to her audience.
In this presentation, we will explore how far the courts should be
open to the press and what the press can or cannot do with such
openness.
The Principle of Open Court
Courts are legitimate fora for the settlement of disputes between
the state and an individual or between two private individuals.
Proceedings in court are an alternative to brash and brutish means
of settling disputes among citizens. In the same vein, it is a civil
way of ensuring that the state controls properly conduct among its
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citizens in the overall interest of the state. The judiciary in
democratic settings have a characteristic feature of administering
justice in both civil and criminal proceedings in public. This feature
is commonly known as the open court principle. This principle is
also tied to rule of law.
In recognition of the open justice principle, the general rule is that
justice should be administered in the open. To this end,
proceedings must be held in public, evidence communicated
publicly and fairly, accurately and contemporaneous media
reporting of proceedings should not be prevented by any action of
the court unless strictly necessary.3 This implies that the court
must not prevent the press from attending court for any part of the
proceedings. However, there are exceptions to this rule.4
A good starting point is the decision of Lord Halsbury in Scot v
Scot5 and adopted by Jeremy Bentham thus:
Where there is no publicity there is no justice. Publicity is
the very soul of justice. It is the keenest spur to exertion
3 ‘Media and Public Access to Proceedings in the Magistrates’ Court and Crown Court Advice and Guidance for Magistrate and Judges’ Reporting Restrictions in the Criminal Courts April 2015 https://www.judiciary.gov.uk/wp-content/uploads/2015/05/reporting-restrictions-guide-2015-final.pdf accessed 23 May 20164 See section 205 of the Child Rights Act, Cap C50, Laws of the Federation of Nigeria, 2004. See also section 6(5) of the Children and Young Persons Law of Lagos State, Cap 25 (note: the proviso to section 6(5) exempting bona fide representatives of a newspaper or news agency except by special leave of court).5 (1913) AC 417l
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and the surest of all guards against improbity. It keeps the
judge himself while trying under trial.6
Lord Atkinson acknowledged that the hearing of a case in public
may be “painful, humiliating, or deterrent both to parties and
witnesses” and in some cases, “the details may be so indecent as
to tend to injure public morals”.7
Lately, Tom Bingham underscored this point thus:
. . . that all persons and authorities within the state,
whether public or private, should be bound by and
entitled to the benefit of laws publicly made, taking effect
(generally) in the future and publicly administered in
courts.8
This resonated in Canada where Justice Morris Fish, writing for the
Supreme Court of Canada in Toronto Star Newspapers v Ontario9
confirmed that “in any constitutional climate, the administration of
6 Quoted in AG (Nova Scotia) v Maclntrye (1982) 1 SCR 175 at 183, per Dickson J (as he then was).7 Scot v Scot, (fn 5)8 Tom Bingham, The Rule of Law (Penguin Group Ltd 2010) 8.9 (2005) S.C.J. No. 41. The Toronto Star decision confirmed that the so-called Dagenais-Mentuck principles and presumptions in favour of access apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. The Dagenais/Mentuck principle is to the effect that a person seeking to deny access to and publicity of court proceedings and court records in Canada must satisfy the Dagenais/Mentuck Test. The Test is that access can be curtailed only if necessary to prevent a serious risk to the proper administration of justice and only if the salutary effects of the restriction outweigh the harm caused to the rights and interests of the parties and the public. These interests include the right to free expression, the right to a fair public trial and the efficacy of the administration of justice.
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justice thrives on exposure to light – and withers under a cloud of
secrecy.”
In most jurisdictions, open court provisions guarantee the public
rights to attend trials.10 The open court rule in Nigeria finds its
source from the provisions of section 36(1), (3) and (4) of the
Constitution, which provides thus:
36. (1) In the determination of his civil rights and
obligations, including any question or determination by
or against any government or authority, a person shall be
entitled to a fair hearing within a reasonable time by a
court or other tribunal established by law and constituted
in such manner as to cure its independence and
impartiality.
(2)....
(3) The proceedings of a court or the proceedings of
any tribunal relating to matters mentioned in subsection
(1) of this section (including the announcement of the
decisions of the court or tribunal) shall be in public.11
10 Bryan A Garner (ed) Black’s Law Dictionary (9th ed, West Publishing Co, 2009) 1199. See section 2(b) of the Canadian Charter of Rights and Freedoms and Edmonton Journal v Alberta (Attorney General) (1989(, 2 S.C.R. 1326.11 In Menakaya v Menakaya (2001) 16 NWLR (Pt 738) 203, the Supreme Court held per Uthman Mohammed, JSC that although the court recorded that both Senior Counsel had given consent to hearing in chambers but since the statute has made it mandatory that such proceedings must be in open court the consent of counsel is immaterial and of no consequence.
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(4) Whenever any person is charged with a criminal
offence, he shall, unless the charge is withdrawn, be
entitled to a fair hearing in public within a reasonable
time by a court or tribunal.12
The open court rule is justified on two grounds. First, the actions
carried out by the state particularly in criminal proceedings are
carried out on behalf of the citizens of the state. The second
justification for the open court rule is the public scrutiny which the
practice affords.
However, the open court principle is not absolute. In certain
circumstances, it is not in the interest of the state or the parties in
judicial proceedings to be heard in public. The Constitution
recognises this by providing in the provisos of section 36(4) certain
situations in which the court is allowed to exclude the members of
the public from proceedings.13 The Constitution thus bestows on
the courts the power to limit public attendance of such cases.
At common law, the onus rests upon a person seeking to deny
public access and publicity of court proceedings and court records
to prove that extraordinary circumstances justify departure from
the principle. It behoves on the courts to balance the open justice
12 See Effiom v State (1995) 1 NWLR (Pt 373) 507 and Chinemelu v COP (1995) 4 NWLR (Pt 390) 46713 See also section 243 of the Evidence Act, 2011 that provides for exclusion of evidence on grounds of public interest.
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principle against countervailing interests of privacy and security.
In a country like Nigeria, security challenges has assumed alarming
proportion from the various ethnic and religious groups like
MEND, MASSOB, IPOB, the Avengers, Boko Haram and lately the
Herdsmen. The question in each case is where and how to draw
the line.14 McLachlin answered thus:
This is not an easy task. Judges, guided by counsel, must
identify the values at stake in a particular case and
consider how they are likely to play out. The goal is to
draw the line at the point where privacy and security are
appropriately protected, yet the essentials of the open
justice principle are maintained. The science is not exact,
to be sure. Yet the task can be accomplished if the judge
identifies and carefully evaluates what is at stake on both
sides of the issue. It is all too easy in this arena to allow
emotion and fear to becloud judgment, skewing the
balance in favour of private or security. The antidote is
reasoned identification and examination of what is really at
stake in the case at land. In this way, we can sustain the
14 See Beverley McLachlin, “Openness and the Rule of Law”, Remarks by the Chief Justice of Canada at the Annual International Rule of Law Lecture: London: January 8, 2014. Available at http://www.barcouncil.org.uk/media/270848/jan_8__2014_-_12_pt.__rule_of_law_-_annual_international_rule_of_law_lecture.pdf accessed 30 May, 2016.
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fundamental principle of open justice, while also
responding to changing circumstances and priorities.15
Modification of the open court rule can also be statutory.16 In such
situations, specific legislations limit the open attendance and
public scrutiny where the interest of a party or witness in the
proceedings may be adversely affected. In most cases the parties
are vulnerable members of the society such as the under aged and
the mentally ill parties or witnesses.17 Such situations do not
constitute a violation of the right to fair hearing. In the state's case
against Kabiru Sokoto the mastermind of the 2011 Christmas day
bombing, the prosecution insisted that the court exempt the
proceedings from the public for the purposes of hearing the
testimony of witnesses. Such application was done in the interest
of the safety of the witnesses.
To aid the open court principle and reasons for its existence, the
media are permitted to sit even in proceedings in circumstances
where the public are excluded as the eye or trustees of the public.18
The media cannot be excluded for several reasons. In a democratic
set up there has to be active participation of people in all affairs of
their community and the state. It is their right to be kept informed
15 McLachlin ibid at 316 See section 305 Child Rights Act; Evidence Act, section 24317 See generally the Child Rights Act. 18 A.G v Guardian Newspapers (NO.2). HL (1988)
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about the current political social, economic and cultural life as well
as the burning topics and important issues of the day in order to
enable them to consider forming broad opinion in which they are
being managed, tackled and administered by the government and
their functionaries. To achieve this objective people need a clear
and truthful account of events, so that they may form their own
opinion and offer their own comments and viewpoints on such
matters and issues and select their future course of action. The
courts stand in-between the state and the individuals and the press
the vanguard of the people.
International and regional human rights instruments recognise the
right of the press and the role their existence plays in fostering
democracy and justice. Article 19 of the International Convention
on Civil and Political Rights provides that everyone shall have a
right to freedom of expression; this right shall include hold
opinions without interference and to freedom to seek as well as
impart information regardless of frontiers.
Section 22 of the 1999 Constitution, assigns duties to the mass
media, that is, newspapers, magazines, radio, television among
others, to monitor government and make government accountable
to the Nigerian people and uphold the objectives of the state. It
states:
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The Press, radio, television and other agencies of the
mass media shall at all times be free to uphold the
fundamental objectives contained in Chapter two and
uphold the responsibility and accountability of the
government to the people.
The right to report court proceedings can also be found in section
39 of the Constitution relating to freedom of expression and the
press. Accordingly, section 39(2) of the Constitution provides
thus:
(2) Without prejudice to the generally of subsection (1) of
this section, every person shall be entitled to own, establish
and operate any medium for the dissemination of
information, ideas and opinions. Provided that no person,
other than the Government of the Federation or of a State or
any other person or body authorised by the President on
the fulfilment of conditions laid down by an Act of the
National Assembly, shall own, establish or operate a
television or wireless broadcasting station for any purpose
whatsoever.19
(3) Nothing in this section shall invalidate any law that is
reasonably justifiable in a democratic society (a) for the 19 See the National Broadcasting Commission Act, Cap N11, LFN, 2004 and National Communications Commission Act, Cap N97, LFN, 2004.
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purpose of preventing the disclosure of information
received in confidence, maintaining the authority and
independence of courts . . ..20
It is on the strength of this constitutional provision that we have
private media houses in Nigeria such as Channels TV, AIT,
Silverbed TV, Ray Power, amongst others.
Court reporting helps in intimating members of the public on the
workings of justice systems and their actors. Contemporary society
view media scrutiny of criminal proceedings as essential to
democracy. This is because media focus on cases contribute to
fostering effective safe guards against possible miscarriage of
justice.21 Reporting proceedings especially those that are criminal
in nature, help to serve as an external check to the police,
prosecutor as well as judicial authorities in the exercise of their
duties. In Sheppard v. Maxwell,22 US court recognising this role
explains that press freedom is
the handmaiden of effective judicial administration . . . [since
the press] does not simply publish information about trials
but guards against the miscarriage of justice by subjecting
20 See the Constitution, section 6(6)(a); sections 6 and 133 of the Criminal Code Act and section 155 of the Penal Code Law of Northern Nigeria, 1963. See also Atake v President of Nigeria (1982) 11 SC 15321 Giorgio Resta, 'Trying Cases in the Media: A Comparative Overview' (2008) 71 Law and Contemporary Problems 31-66. Available at http://www.law.duke.edu/journals/lcp accessed on 30 May, 201622 384 U.S. 333, 350 (1966).
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the police, prosecutors, and judicial processes to extensive
public scrutiny and criticism.
It is vital that there should be a fair trial to everyone and that trials
in court shall be held in public as provided for under the Nigerian
constitution in section 36(3). Firstly, the court is a public place and
proceedings are conducted openly for that reason and open to the
public to attend. Reporters being members of the public so are the
readers or listeners they represent. The press therefore has the
right to attend court proceedings and are duty-bound to be there
whenever possible on behalf of their listeners or readers who
cannot be there personally.23 It is of utmost importance to know
that court reporters are provided a place in the court room to seat,
record and report proceedings. Basically it is in the interest of the
society that court proceedings are reported and disseminated to
the general public.
It is the duty of the court to decide whether or not a person is guilty
of an offence, therefore nobody should be tried and convicted by
crime or court reporters either in the columns of newspapers or
over the airwaves and in courts of public opinion.24
23 Available at http://www.thenewsmanual.net/Manuals%20Volume%203/volume3_64.htm accessed 26 May 201624 ibid
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It is very important that law reporters exercise their rights to report
things and most importantly issues relating to court proceedings
either on television, radio, internet or newspapers. In the same vein
the right to report a crime is limited in order to protect the
defendant’s right to a fair trial. However, when a crime has been
committed or a matter is in court, reporters need to inform the
people or the public as it is part of their constitutional duty under
the Nigerian Law.25 Such reporting should be done with
circumspection.
If a man has been charged to court for any act whether criminal or
civil, the press is duty bound to report the act to which the person
has been charged for. In reporting this, the press is expected not to
pass any sentence as it is a mere allegation but to only state the
fact as it is.26 It should also be noted that anything the press
reports or publishes about a court proceeding may or may not
interfere with the job of the court.27
25 The Constitution, section 22 26 The Rules of Court Reporting, http://www.thenews manual.net/Manuals%20Volume%203/volume3_64.htm accessed 26 May 201627 Ibid . Although this may not be applicable in Nigeria as we do not run the jury system unlike in America where the jury is not allowed to have any idea about a case to which he is a jury.
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When a child is being charged to court or has a matter pending in
court, the press is precluded from exposing the identity of the child
in whatever form or manner in accordance with the Child Rights
Act. Under the Administration of Criminal Justice Act28 which now
makes provision for witness protection, the press is also precluded
from exposing the identities of the witness for the prosecution or
defence.
Trial by Media: The Right to Fair Hearing and the Obligation of the
Press.
The obligation placed on the press to be the "eye of the public"
reporting court proceedings is an important and onerous one. In
the realities of modern society, the dissemination of the news is
part of an industrial process, which is commonly driven by
business concerns. The media often report cases that are
sensational in every regard. The media frenzy generated is what
keeps the press as a business up and running. At all times, it is the
desire of any justice system to at least be seen as fair in
conducting its adjudicatory functions. Many legal systems afford
specific protection to the presumption of innocence, which is an
28 Administration of Criminal Justice Act, 2015
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essential feature of the right to fair hearing. According to section
36(5) of the Nigerian Constitution, “everyone charged with a
criminal offence shall be presumed innocent until proved guilty
according to law.”29 The implication of this principle is that at trial
the defendant is presumed innocent until guilt is proven.30 The
judge and (the jury in jurisdictions where they exist) should not
have to contend with situations where the media instil a popular
opinion in the minds of the public, which if not reached would put
the court, and the entire justice system in disrepute. If publicity
offered by the media portrays a party in any judicial proceeding as
guilty, then there is arguably a breach of a fundamental right of the
individual.
The European Court of Human Rights has ruled on several
occasions, that the presumption of innocence as applied should be
even more broadly recognized namely, every citizen has the right
not to be publicly shown as being guilty of a criminal offense
before final conviction. In the words of the court;
'Freedom of expression, guaranteed by Article 10 (art. 10)
of the Convention, includes the freedom to receive and
impart information. Article 6 para. 2 (art. 6-2) cannot
therefore prevent the authorities from informing the 29 Article 6 (2) of the European Convention of Human Rights.30 Giorgio Resta (n 24)
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public about criminal investigations in progress, but it
requires that they do so with all the discretion and
circumspection necessary if the presumption of
innocence is to be respected'.31
It is thus undeniable that there is palpable tension between a
commercially motivated press and fair-trial rights. It is the task of
the law to prevent a socially valuable activity—such as informing
the public about the workings of the justice process—from being
transformed by market pressures into a “power without
responsibility.32
Section 45 of the Nigerian Constitution provides that the freedom of
expression and the press rights contained in section 39 can be
curtailed in the interest of defence, public safety, public order and
protecting the rights and freedom of others.33 Restraining the rights
of the press is thus not in violation of fundamental rights
principles.
Resta identifies two principal model related to the discussion on
court reporting restraints.34 The first model sees protecting speech
as paramount and vital for the survival of any democracy. Through 31 Allenet De Ribemont V. France, Eur. CT HR(Application no. 15175/89: Judgement 10 February 1995)< http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-57914&filename=001-57914.pdf&TID=thkbhnilzk> accessed 26 May, 201632 Mark J. Geragos, The Thirteenth Juror: Media Coverage of Supersized Trials, (2006)39 LOYOLA L.A. L. REV. 1167, 1168.33 Such laws include the Criminal Code Act, the Penal Code Law, Law of Torts, Law of Contract.34 Giorgio Resta, (n 24) 33
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the protection of speech, justice administration is automatically
improved.35 Free press and the unimpeded administration of justice
are thus not conflicting ideals, but are rather mutually supportive.
Arising from the high value placed on press freedom in this model,
any interference with media freedom to access report and comment
upon ongoing trials is prima facie unlawful. This model grants
tangible protection to the press, resorting only to procedural
devices such as special jury instructions and sequestration, aimed
at neutralizing the effect of prejudicial publicity.36 The United States
as a country that attaches more weight to the principles of press
freedom arising from its First Amendment relies on this model.
Resta recognises four key characteristics of court proceedings
recording in the US - absence of deterrent penal sanctions aimed to
prevent prejudicial publicity; hostility toward prior restraints on the
press, limited use of gag orders and an extensive use of procedural
techniques aimed at neutralizing the impact of prejudicial
publicity.37 In Nebraska Press Ass’n v. Stuart, the court held that
prior restraints awarded in a murder case was unconstitutional and
did not serve the defendant’s rights.38 This is not to say that the
court does not try to strike a balance between the principles of
35 ERIC BARENDT, FREEDOM OF SPEECH 312 (2005) cited in Giorgio Resta (n 24) 35.36 Giorgio Resta, (n 24), 3637 ibid.38 427 U.S. 539 (1976).
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press freedom and the tenets of fair trial. In Florida Star v. B.J.F.39
and Cox Broadcasting Corp. v. Cohn40 concerning the privacy of
rape victims, the US court has held that the privacy rights fade
when their names appear in the public records. In Florida Star, the
court held that the publication of name of a rape victim unlawfully
invaded the victim's rights.
The second approach, which is the fair trial model, places a higher
value on protecting the justice process. Described as the traditional
common law approach,41 the model is concerned with the threat
that media reports create for an impartial and unimpeded court
action. The underlying assumption of this model is that media
coverage of pending trials might be at odds not only with the
fairness and impartiality of the proceedings, but also with other
individual and societal interests. The court employs the use of
penal sanctions - principle of contempt of court to encourage
neutrality. The law of contempt, prohibits publications that are
thought likely to interfere with the course of justice in a particular
case. This is essentially the sub juidice rule. The English court in
A.G. vs. Times Newspapers Ltd42 stated that;
39 491 U.S. 524(1989).40 420 U.S. 469 (1975).41 Giorgio Resta, (n 24) 3742 (1972) 3 ALL ELR p.1136 at p.1144. See also Kalu v FRN & Ors (2012) LPELR-9287(CA); Mianaekere v PDP & Ors (2014) LPELR-22987 (CA).
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'...a matter which is "sub judice" should be protected from
the media, it is expected to be treated with some measure of
restraint in reportage on the subject while proceedings are
on-going. However, the rider caveat which qualifies this
expected restraint is that the publication is "calculated to
impugn the fairness of the trial". While some publications
can be so obvious, the intention of some are not so easily
discernible. The focal point then is not whether there is a
publication on the subject matter but whether such
publication is "calculated to impugn the fair trial" of the
pending suit.
Therefore, the media is on average cautious in disclosing facts or
expressing statements of opinion likely to interfere with pending
proceedings. Otherwise, their publicity introduces bias into a
process that ought to be fundamentally impartial
Contempt Proceedings as sanction for failure to report proceedings
fairly.
The power of the court to impose penal sanction in situations
where the report of legal proceedings are considered as adverse to
the course of justice possesses constitutional backing in Nigeria.
Section 39(3) of the Constitution provides that '(n)othing in this
section shall invalidate any law that is reasonably justifiable in a
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democratic society: (a) for… maintaining the authority and
independence of courts…"
In addition, section 133 of the Criminal Code states that anyone
who;
4). while a judicial proceeding is pending makes use of
any speech or writing misrepresenting such proceeding,
or capable of prejudicing any person in favour of or
against any party to such proceeding, or calculated to
lower the authority of any person before whom such
proceeding is being heard or taken; or
5: Publishes a report of the evidence taken in any judicial
proceeding which has been directed to be held in
private;...
is guilty of a simple offence...."
A similar provision is contained in section 155 Penal Code.
These statutory provisions affirm the need to keep the confidence
of the public in the judiciary by ensuring that the duty placed on the
media by other constitutional and statutory provisions are not
abused. As law-abiding and responsible citizens, members of the
media are expected to respect the courts in the course of their
official duties. However, the possibility of receiving penal sanction
in the course of official duties may arise in the following instances
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a) where the a report of a matter deems a suspect in a criminal
offence, guilty even before the trial is over;
b) Comments on a case before the court in a manner that
suggests that those involved will not obtain justice or,
c) Showing disrespect to the magistrate or judge right in the
court (in facia curia) by making a noise when the court is
sitting, taking photographs in the open court, etc.
In situations as those mentioned above, there is a threat to the fair
administration of justice and the court generally does not hesitate
to reset the scenario.
A publication does not amount to contempt unless it is calculated
to impede the administration of justice by swaying the public
opinion in a manner that is adverse to the justice system. Widgery
C J in A.G. vs. Times Newspapers Ltd43 states that for an action to
be considered as contempt,
"(t)here must... be a relationship between the publication
of the comment and its potential effect on the trial. If it is
shown that the publisher actually intended to interfere
with the course of justice, he can rarely be heard to say
that his comment would not have that effect. But in other
cases the potential prejudice must be proved or capable
43 (1972) 3 ALL ELR p.1136 at p.1144.
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of being inferred. The essential element to be proved is
that the comment was calculated to interfere with the
proceedings".44
In Onagoruwa v State45, the court on contempt in general stated
thus;
'Contempt committed ex facia curia being words spoken
or acts done outside court which are intended or likely to
interfere with or obstruct the fair administration of
justice, a newspaper article apparently prejudging a trial
could clearly be prima facie contemptuous, but in
deciding whether it actually offends the law, the court
should act with caution and restraint and consider
whether the hearing will in fact be grossly affected,
particularly, where the issue concerned is a civil one to
be heard without a jury, but solely by a judge, trained to
assess the evidence fairly and to arrive at conclusion
based on that alone.
In Daniel v FRN,46 during the pendency of a suit against the
appellant, the government accepted and published
recommendations of the commission of inquiry. The act was not an
44 Ibid45 (1993) 7 NWLR (303) 4946 (2013) LEPLR 22148 (CA)
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act intended to obstruct or interfere with the cause of justice and
was thus not regarded as contempt of court.
In Brittania-U Nigeria Ltd v Seplat Petroleum Development Company Ltd
& Ors47, the Supreme Court, per Ngwuta, JSC defined ‘contempt of
court’ thus:
Contempt of Court is an affront to the authority and dignity of
the Court. It can be either contempt ex facie curiae and
contempt in facie curiae. See Awosanva v. Board of Customs &
Excise (1973) 3 SC 47. The Court has a different procedure for
dealing with each type of contempt.
Law reporters should avoid acts that can be contemptuous of the court
either in the face of the court or outside the court.
Law of Defamation 48
Freedom of the press although fundamental, it is not absolute. The
press man in the course of his job is often subjected to the laws of
the land.49 These laws usually come into play while the reporter is
gathering news or after the publication of the story.50 The law report
should bear in mind that words are powerful. The press use them to 47 (2016) LPELR-40007 (SC)48 See generally Ese Malemi, Law of Tort (2nd edn, Princeton Publishing Ltd 2013) 532; Aboaba Omotesho, The Law of Tort in Nigeria (Malthouse Press Limited 2015) 95. See also the Defamatory and Offensive Publication Act, 2014 and the Defamation Laws of the various states. 49 These laws include defamation, sedition, contempt of court and the Official Secret Act50 Charles Akolo Katsibi ,’ The Constitution and the Nigerian Press’ http://www.gamji.com/article6000/news6435.htm accessed 26 May 2016
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inform, entertain and educate their readers and listeners. However,
when used wrongly or unwisely, they can do harm to people
through false accusations or misinform the public. The press
considering the nature of their job is often at the forefront of this
issue. Therefore defamation becomes the main legal danger to the
press and one of the most important areas of law for a journalist to
know about as defamation protects people against untrue
statements that could damage their reputation.51
Defamation is therefore an ‘infringement on the individual’s right to
his good name and thus involves the disparagement of a good
name of another person’. It is a tort against the reputation of the
name of another.52 The tort of defamation may be defined as the
publication of a statement about someone that lowers him or her in
the estimation of right-thinking members of society generally,
where no defence (usually truth, opinion, or qualified privilege) is
available.53 Examples are calling someone dishonest, corrupt,
hypocritical, lazy, incompetent, criminal, unfaithful, or financially
troubled. It includes also, what ordinary readers or viewers see or
hear “between the lines”. The courts will look at the harm in the 51 ibid52 Biobele Georgewill , ‘The Right to a Good Name: Law of Defamation simplified’(Port Harcourt 2011) 1253 Steve Price,’’ What is Defamation’’< http://www.medialawjournal.co.nz/?page_id=273 > accessed on 27/5/2016
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article proving the truth of the words will not help if harm can be
inferred literary from the content of the article.
The tort of defamation has been classified into libel and slander.
Slander refers to spoken word that appears to defame a person
while libel refers to an express malicious publication more in a
permanent form.54 Both can be categorized into written defamation
and oral defamation55 and are strictly different.
The press in the process of reporting court proceedings may report
untrue statements or publish a defamatory statement against a
party to the suit and therefore a tortious liability may arise.
However, it is elementary that in order to succeed in an action for
defamation, the plaintiff must plead and prove the essential
elements of the tort of defamation which are:
[(a)] That the words are defamatory
(a)[(b)] The words were published by the defendant
(b)[(c)] That the words referred to the claimant56
54 Ibid at 1755 ibid56 Din v African Newspapers of Nigeria Ltd (1990) 3 NWLR Pt 139 , 392
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Therefore, the court reporter needs protection from such liabilities.
There are however defences like absolute privilege and qualified
privilege.
Other than being a tort, the offence of defamation is expressly
provided under section 373 of the Criminal Code as a matter likely
to injure the reputation of any person by exposing him to hatred,
contempt or ridicule, or likely to damage any person in his
profession or trade by injury to his reputation. Such matter may be
expressed in spoken words or in words legibly marked on any
substance whatever, or by any sign or object signifying such
matter otherwise than by words and may be expressed either
directly or by insinuation or irony. It is immaterial whether at the
time of the publication of the defamatory matter, the person is
dead.57
From the above, it is possible to defame the presiding judge or the
parties in the suit through bad journalism resulting from lack of
expertise on the part of the law reporter. For the purposes of
reporting judicial proceeding, it is advisable to use media lawyers
57 Evans Efeli, ‘’ Criminal Defamation under Nigerian Law’’<http://connectnigeria.com/articles/2015/08/criminal-defamation-under-the-nigerian-law/> accessed on 27May, 2016
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who are abreast with our laws to prevent frequent law suit against
the media house.
Copyright Law 58
In most of the world today, ownership of one’s creation is
considered to be an individual’s legally protected
intellectual property. This right is enshrined in the Berne
Convention and other international treaties, which abolished
registration as a formal predicate for copyright interests (although
not for judicial enforcement).59 What this means in practice is that
one can sue anyone who exploits a creative work without the
owner’s permission, once the work is registered with the
appropriate governmental copyright authority.
The Nigerian Copy right Act60 contains a lot of protection for
individual creativity and also gives room to fair use. The challenge
facing authors/publishers is the abuse of fair use by journalists.
However, for judicial proceedings, it is noteworthy that the second
58 See generally Adebambo Adewopo, Nigerian Copyright System, Principles and Perspectives (Odade Publishers 2012)59 Glenin Manishin, ‘’Social Media and Copy right law in conflict’’< http://www.project-disco.org/intellectual-property/080913-social-media-and-copyright-law-in-conflict/#.V0ipzY-cFMs>accessed on 28 May, 201660 Cap C28 Laws of federation of Nigeria, 2004
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schedule of the Act, exempted court judgment, court Orders and
rulings from copy right protection61 except where they have been
collated and published as law reports. 62 This is because they are in
public domain and they are also not listed among the works eligible
for copyright.63 It must be stressed that since open court principle
protects two main things, the court proceedings and court
judgment, there can be an infringement with court proceedings and
exhibits or documents tendered in court.
Uses of Reporting Judicial Proceedings through the Media .
There are various uses of judicial reporting. Basically the reports
can be used for public confidence in law, as a deterrent to future
crime and news items.64 The press being a source of authoritative
information for the populace will help in instilling public confidence
with appropriate reporting of court proceedings. Court reporting
will help the populace know that the law is there to protect the
61 The Copyright Act, section 51 (1 ) (i) where the Act stated that Literary works refers to Law reports excluding decisions of Court see also paragraph (p) of the Second Schedule of the Nigerian Copyright Act ,2004 which contains works which are exempted from copyright control, the paragraph states that ‘’any work for the purpose of judicial proceeding or of any report of any such preceding is exempted from copy right control” also see S. 1 of the same Act listed the works eligible for copy right and the include; (a) literary works; (b) musical works; (c) artistic works; (d) cinematograph films; (e) sound recordings; and (f) broadcasts. 62 Just like works from Federation weekly Law Report , NIALS Appellate Court Reports, Law pavilion, Nigerian Weekly Law report etc. 63 Ibid n.1364 ibid
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people and that anyone found guilty of breaking the law will face
the full wrath of the law, thereby instilling confidence in the
judiciary on the people.65
One of the reasons for punishing people who break the law is to
deter other people from doing the same thing. The society needs
the press to attend court cases and to report exactly what happens
in court such as who is accused of what, what evidence is brought
for the prosecution and for the defence, what the court's decision
is, and so on. Society's confidence in the legal system depends
upon people being informed about what is going on. That is part of
the job of the press and it is a vital one and must be done
responsibly. It cannot possibly do this unless people know what
punishment is handed out to law-breakers thereby deterring others
from committing such crime. Only if people believe that law-abiding
people are defended by the law, and law-breakers punished, will
they be encouraged to live by the law. So the smooth running of
society depends partly on people being informed about what
happens in courts, which can effectively be achieved through the
press.66
65Chapter 64: ‘The Rules of Court Reporting’ <http://www.thenewsmanual.net/Manuals%20Volume%203/volume3_64.htm> accessed 27 May 201666 ibid
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There is another very good reason why newspapers and
broadcasting stations send reporters to court, as well as the social
duty they perform. There are hundreds of very interesting news
stories in court. Almost every case that comes before the courts is
full of human drama. There are cases of murder, manslaughter,
rape, assaults, theft, burglary. robbery, broken promises, land
disputes and broken contracts. Every one of these, written the right
way, can give an interesting news story at the same time as
informing the public about the workings of the courts.67
The media plays a significant role in every society. It serves as a
mirror for the society. A free press is the soul of a democracy. The
media has been active in reporting judicial proceedings in Nigeria.
However, this should not be abused.
Abuses
This may arise where for instance the press violates certain laws
relating to the privacy of a court proceeding such as the revealing
the identity of a child that is a party to a suit, or revealing the
67 ibid
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identity of witnesses in a crime involving treason or terrorism
cases and in divorce cases. Furthermore, there are some types of
hearing that may need the judge or magistrate to hear evidence
which is intimate and may be indecent. For instance, a woman may
seek a divorce on the grounds that her husband's sexual demands
were cruel, and the judge will need to hear in some detail what
those demands were, in order to decide whether they were cruel.
Also, in a rape or sexual assault case, the evidence of a doctor who
examined the victim after the assault may need to be heard. The
press will not normally publish anything indecent in a court report,
even if it was said in open court. If indecent evidence is given, you
may report the fact that evidence was given, but not the details of
that evidence.68 Failure to do this will amount to an abuse and the
defence of absolute privilege will not absolve the reporter involved.
It is true that the Constitution guarantees freedom of press69 but
that right is not absolute. The media are enjoined to avoid the
abuse of the right through tendencies like misleading headlines;
sensationalism, prejudicial advertisements, facts reported too early
without verification, twisting of facts, vilification of an individual, a
68 Practical court reporting <www.thenewsmanual.net/Manuals%20Volume%203/volume3_65.htm> accessed 27 May 201669 The Nigerian Copy Right Act 2004,S. 22
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court of law, institution and Government; interfering or tending to
interfere with judicial proceeding by adopting the role of an
investigator/doing the job of the prosecutor, counsel or witness,
usurping the function of court of law in matters sub judice by
publishing extra-judicial information in a pending trial, attacking
the integrity of the judges.
If the media fails to avoid these abuses, they will come under the
scrutiny of the law of libel or slander or contempt of court.
Therefore the media must set its ideas fairly and be guided by true
reporting, fair and constructive criticism and impartial purveying of
news, else both the printer and the publisher will be held liable.70
Recommendations
The role of the media is provided for in several instruments
including the Nigerian Constitution. The press is a veritable tool
for dissemination of Governments activities to the masses and
image maker of the nation to the world. Therefore to ensure that
court reporters in Nigeria become very professional in the delivery
70 Rashid Boatwalla,'The Court versus the Proactive Media'< http://www.mkaco.com/images/courts_vs_media.pdf> accessed on 28 May, 2016.< hwww.mkaco.com/images/courts_vs_media.pdf > accessed on 28 May, 2016.
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of their mandates, and avoid tortious liability, the following are
recommended:
[(i)] Ideally, the lawyers in the legal departments of the various
press outfits should be the officers responsible for reporting
of court proceedings because as lawyers, they understand
the courtroom techniques and know the law. This will enable
them focus on the appropriate part of the proceeding to be
sent to the public glare as not all court proceedings ought to
be reported.
[(ii)] For a non-lawyer who is a court reporter, it is recommended
that such a reporter undergo at least a diploma course in law
to at least be abreast with the Nigerian legal system and legal
methods. This will enable him know who a defendant is, an
accused, a suspect a plaintiff and even some Latin maxims
used in court.
[(iii)] There should be a permanent court reporter for any press
outfit as court reporting is an art. This will ensure
professionalism and make the press outfit sell credible news
to her audience.
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[(iv)] There should be a court appointed officer who is in charge of
the press so that all the necessary documents required by the
press can be easily accessible especially when proceedings
are private so that even if the press is not allowed in for any
reason, there would be an authentic report from the court
itself which the press can rely on to inform the general public
of the progress of the case.
[(v)] There should be proper training and retraining of court
reporters on report and speech writing, editing and
summarising skills so that they will be able to captivate their
readers with the focal point of a matter before the court.
[(vi)] There should be training of court reporters in Nigerian laws
including the procedural laws so that a court reporter will
understand how the law works and the procedures so that the
reporter will not misinform the reader especially on court
processes.
[(vii)] A Code of Conduct for Law Court reporting should be
developed to guide court reporters in reporting standard in
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order to meet international best practices and also prevent
liability.
[(viii)] Court reporters should generally undergo an internship
program in the courts for at least three months watching
cases and writing down proceedings of the court as this will
help improve their reporting skills of court proceedings.
Alternatively they can serve their internship under senior law
reporters.
[(ix)] Lawyers in the media should help educate fellow reporters by
organizing trainings and roundtables on reporting standards.
Conclusion
The media is said to be the hallmark of every democracy. It is
noteworthy that freedom of press is constitutionally guaranteed but
not absolute, unlimited and unfettered as giving an unlimited
freedom of speech and press will amount to uncontrolled license.
This is so because every institution is liable to be abused and every
liberty if left unconcealed has the tendency to become a licence
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which will lead to disorder or mayhem. Against this backdrop, it is
recommended that the media be properly regulated and media
lawyers trained and engaged in the report of judicial proceedings
which are usually very sensitive matters.
There is the need to create a balance between press freedom and
fair trials. Clearly, the media plays a vital role in building
confidence in the administration of justice where it informs the
general public about activities occurring within the justice system.
The media also serves as a check to the excesses of a tyrannical
government or a weak judicial system. In India for example, some
famous criminal would have gone unpunished but for the
intervention of the media.71
Trial by media if not adequately monitored can cause the general
public to lose confidence in the administration of justice.
Extremities in the use of press freedom and the insistence on the
protection of the justice system can lead to an abuse of press
freedom by the press to the detriment of the justice system or the
curtailment of the rights of the press. There is the need for every
jurisdiction to strike the appropriate balance.
71 Examples of cases that would have gone unpunished but for the intervention of media are Priyadarshini Mattoo case (Santosh Kumar Singh vs. State (2010) 9 SCC 747);, Jessica Lal case (Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1); and Bijal Joshi rape case.
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The right to freedom of expression is a derivation of the open court
principle. Thus the onus rests in a person seeking to deny access
to and publicity of court proceedings and court records to satisfy
certain a test - that access can be curtailed only if necessary to
prevent a serious risk to the proper administration of justice and
only if the salutary effects of the restriction outweigh the harm
caused to the rights and interests of the parties and the public.
These interests include the right to free expression, the right to a
fair public trial and the efficacy of the administration of justice.
There is the need to maintain an effective evidentiary process;
ensure a judiciary that behave fairly and that is sensitive to the
values espoused by and society; promote a shared sense that our
courts operate with integrity and dispense justice; provide an on-
going opportunity for the community to learn how the justice
system operates and how the law being applied daily in the courts
affects them.
Court proceedings including the evidence and documents tendered
should be open to the public. Similarly the judgments should be in
the public domain or in published form. As Justice Brandeis
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