There was a time when court reporting had a stiff upper lip. Journalists rarely reported on developments outside the hallowed halls of justice once an accused person entered a plea. Reporters rose when the magistrate entered the room. Cellphones were always switched off.
Oscar Pistorius’s murder trial has changed all that.
On Tuesday, murder-accused Blade Runner made his second court appearance – which resulted in a postponement as expected. The entire court sitting lasted just shy of 20 minutes. But the press were out in full force.
Magistrate Daniel Thulare seemed unimpressed by the amount of attention the press has given the case. He said: “There seems to be somewhat of a trial by the media.”
Photographs of Pistorius’s bloodied bathroom were leaked to Sky News just days before his court appearance. And they were leaked before the start of the trial, and before their veracity could be tested in court.
Tuesday’s court appearance played to a media frenzy that echoed the storm of publicity that accompanied the events of February 14. On that date Pistorius’s girlfriend, Reeva Steenkamp, was shot dead through a bathroom door, instantly turning South Africa’s golden athlete into a figure of notoriety and igniting a storm of worldwide media coverage that intensified during his first court appearance shortly afterwards.
In keeping up with international standards about the excessive coverage of celebrity murder trials, the trial by media of Oscar Pistorius has pushed every boundary in the court reporting rulebook. And with another court date now set for August 19, which coincides with Steenkamp’s birthday, the glare of publicity shows no signs of easing up.
Social media storm
Fuelled by the enormous public interest in Pistorius’s case, Twitter became the number one source of news on events surrounding his arrest. Social media tracker Memeburn suggested 85% of all discussions around the Pistorius trial occurred on Twitter. Mainstream news outlets only managed to host 4% of the discussion, although this in itself caused a spike in online readership.
On Tuesday, presiding magistrate Thulare addressed the issue of media coverage. His remarks were hot on the heels of the controversial showing by Sky News of the leaked photographs that appeared to be from the bloodied scene of Steenkamp’s death.
Thulare said he wondered if the “trial by media” was in keeping with not so much the letter of the Constitution, but its spirit and the guarantee it holds that all accused persons are considered innocent before proven guilty. Thulare said he had been following the latest developments around the Pistorius case in the news, too.
"It is expected, informed by our Constitution, that everyone who has information that may assist a court in arriving at a just and fair pronouncement must approach the National Prosecuting Authority [NPA] via the South African Police Services investigation team," he said.
To many journalists in the room, it appeared to be a veiled swipe at Sky News, although the magistrate did not name any media houses specifically.
Thulare said: “It is also important that we invite our colleagues around the world to make sure that we all respect the processes of the Republic of South Africa … ”
Trial by media
He went on to suggest that the NPA should look into the possibility that media houses may be in contempt of court.
Much of the leaking of evidentiary information is unprecedented in South African media coverage, especially in criminal cases. Journalists who regularly attend court proceedings usually err on the side of caution when reporting on evidence that has not been presented in court. It’s a rule of thumb, but also a legally tricky area, and court journalists generally stick to reporting what they can confirm with a transcript of the court proceedings.
Thulare was vague in exactly what charges could be brought against the media in this instance but several possibilities exist: one is if media houses were in breach of the sub judice rule, which means “under judgment” in Latin and speaks to the possibility that a trial can be prejudiced by publishing information that is still being deliberated on in evidence.
This is highly unlikely though as the sub judice rule is a moot point in South Africa. Earlier this year, at the height of the media frenzy around Pistorius, media lawyers from Webber Wentzel, Dario Milo and Avani Singh wrote a piece on the sub judice rule for the Sunday Independent.
The pair questioned whether or not the rule still applies in the South African context. This is because of a judgment by the Supreme Court of Appeal that changed the way the rule is applied.
Emma Sadleir, a former media law consultant at Webber Wentzel, explained that judgment: to prove contempt of court in this context, there must a “real and demonstrable” possibility that the administration of justice has been hampered by the publication. Otherwise, the possibility that press freedom could be stifled exists, the court said.
That publishing pictures of the Pistorius crime scene, for example, has influenced the outcome of his trial is especially difficult to prove because South Africa does not have a jury system, where ordinary members of the public deciding on the fate of the accused may be influenced by reports they read on the case.
Sadleir pointed out that judges in South Africa are held to higher standards than this: they are bound by their obligation to only consider the evidence presented in court.
This allows journalists some freedom to report more widely on a case and veer away from the arguments presented in court in their reportage. For example, three days after the murder, City Press reported that police were considering the possibility of the use of a cricket bat in the murder of Steenkamp.
But the media can also be in breach of a court order and can be held in contempt of court for this. For example, photographs may not be taken while the magistrate presiding over the case is sitting. Journalists can be charged with contempt if they disobey this rule.
Fully performing its function
If television cameras filmed Pistorius’s bail proceedings in spite of a the court’s decision that they were not allowed to, this might also be a case where the press was in contempt of court.
Instead, journalists took to Twitter, allowing the public intimate access to the athlete's every facial expression.
Kevin Ritchie, deputy editor of the Star, literally wrote the book on court reporting in South Africa. He is the author of the "South African National Editor’s Forum (Sanef’s) Guidelines on Court Reporting" for South African journalists.
Ritchie believes more court cases should be covered like the Oscar Pistorius one. He said this kind of coverage allowed the media to fully perform its function by allowing the public inside courtrooms in a way traditional court reporters were never able to do.
Every moment of the Pistorius case has been live tweeted, creating perhaps the first Twitter celebrity South African journalist in Barry Bateman, an EWN reporter whose Twitter following exploded on Valentine’s Day. Bateman gained over 100 000 followers in the week of the bail hearing, most of these drawn from an international audience hungry for more news of Pistorius.
With the decision not to televise the bail hearing proceedings, tweeting and reporting journalists allowed readers a glimpse into courtroom drama that they would never have otherwise had access to, according to Ritchie.
Court reporting has always been sticky: a delicate balance between awkward Latin legalese and telling relatable stories to readers. Before the advent of social media, said Ritchie, this often made court reporting inaccessible.
But the reality is that the inside of courtrooms are like a dramatic tennis match that Ritchie explained as two legal teams fighting it out in a battle of words and evidence, and, if the media are there, usually results in a sordid crime story. It makes for compelling storytelling, and social media has given these stories a new life.
It’s an “art” telling these stories with sufficient accuracy and colour, he said. And Twitter allows the colour and intensity of legal arguments to be told to Joe Public, live, as they happen.
“It’s awesome,” Ritchie said. “We should start doing more stories like this.”
And while boundaries are being “stretched” by reporters, there are remedies, Ritchie said. For example, those offended by an overly-colourful phrase or an inaccurate sentence in a story can sue for defamation.
A warning to the press
Sadlier, however, pointed out this is an unlikely scenario in the Pistorius case because he is not arguing that he did not pull the trigger – he will probably argue that he did so in self-defence, thinking an intruder was in his bathroom and not Steenkamp. The media can, therefore, allude to him being an alleged killer, for example.
But “alleged” is not a magic-wand, Sadleir added, and journalists must be able to prove to a court that they did everything in their power to research the defamatory claims they have made. A clear distinction must also be made between fact and opinion.
Sadleir said other possibilities for bringing charges against journalists are if they identify an accused person who is under the age of 18 or the identities of minors and victims of sexual abuse or rape. Pistorius, of course, does not fall in this category.
The media may therefore be in the clear for now. But the Pistorius case has not yet begun in earnest. Thulare’s remarks could perhaps better be understood as a warning to the press before the trial gets underway in 2014: you are on thin ice. Tread carefully. – Additional reporting by Phillip de Wet.