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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unequivocally stated: “Sunshine is said to be one of the best

disinfectants”.72

Thank you for your attention.

72 “What Publicity Can Do”, Harpers Weekly (December 20, 1913) cited in McLachlin (n 5 ) 2

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