Open justice, transparency and the media: representing the public interest in the physical and virtual courtroom

In 2012, Lord Justice Toulson observed that the practical application of open justice ‘may need reconsideration from time to time to take account of changes in the way society and the courts work’. In this article, we undertake such a reconsideration in light of the declining role that institutional media organisations play in promoting and protecting the principle of open justice, focusing on courts in England and Australia. We argue that due to changes in the communications landscape, the media no longer have the resources or sufficient inclination to adequately safeguard the public interest in transparency in the courts. In order to place the media’s declining role into context, we also briefly explore three further categories of contemporary challenges facing the open justice principle: changes to judicial attitudes to open justice in response to new communication technologies; shifts in the priority given in law to competing interests in national security and privacy; and, finally, new and emerging changes to court processes and procedures that potentially limit open justice, including virtual courts. We then consider mechanisms that would offer enhanced protection of open justice. Most boldly, we examine a novel model in which an open justice advocate (OJA) intervenes in appropriate circumstances, with the overall objective of ensuring maximum transparency of court proceedings. We also suggest additional mechanisms for greater transparency and accountability regarding the state of open justice in the courts – namely, a statutory duty on courts to give written public reasons for all decisions regarding open justice, a public register of all reporting restrictions (and similar orders) granted by the courts, and annual open justice reporting requirements.