It was unfortunate and insensitive that eNCA had to source the image of Michelle Burger elsewhere despite Judge Dunstan Mlambo’s ruling last week.
Its defence on Twitter this morning that the “still picture [was] from the University website [Burger’s employer]” and that it used it because it was also “carried [by other] daily newspapers” is ridiculous. I am very disappointed in its logic.
Reports on Tuesday that other newspapers – Beeld and Die Burger – also carried Burger images are quite worrying. Following the judgement by Judge Dunstan Mlambo last week, I suspected that we would come across incidents like eNCA’s. This despite the conditions, among others, under which broadcasters and all the other media were allowed abide by during the trial.
Also defending Beeld’s choice to publish Burgers’ image, editor Adriaan Basson reportedly tweeted that the newspaper “published an old picture of Michelle Burger today [Tuesday] because Judge [Dunstan] Mlambo’s judgment only banned pics from inside court””.
It is for these seemingly unethical reasons which are compromised, in my view, by the media for “exclusives” that I believe the conditions should have even gone further to say that even images sourced outside of the court of all witnesses – but only those that do not agree to their pictures being published elsewhere in the world – should not be published elsewhere at all during the duration of the trial. Of course I know that this would have been seen by many as being the worst censorship in as far as press freedom is concerned. But rights have limitations too and by putting this condition in place, Judge Mlambo would have exercised and limited that right correctly.
I therefore hope that the media would respect the presiding trial Judge Thokozile Masipa’s call for the media to “stop any photographs of any sort… [and] … it doesn’t matter where it was sourced from”. I agree we can’t treat the media with “soft gloves”.
In his judgement last week regarding the strict conditions, Judge Mlambo said the following
I have also considered the compromise position mentioned earlier, reached by all applicants with the DPP. In the circumstances the following order is granted:
1. The applicants, MultiChoice and Primedia, or their authorized representatives, are permitted to set up equipment in accordance with the specifications below to obtain a video and audio recording and/or transmission of the permitted portions (as indicated in 3 and 4 below) of the criminal trial of Oscar Leonard Pistorius under case number 13/25513 (“the trial”).
2. The equipment shall comply with the following specifications:
2.1 three cameras, as depicted in annexure A (“the cameras”), shall be installed in the courtroom where the trial is to take place, at least 72 hours before the trial commences;
2.2 the cameras shall be installed in locations in the courtroom which are as unobtrusive as possible, and so that the proceedings are not interfered with. The locations of the cameras shall be substantially in the areas of the courtroom indicated in annexure B;
2.3 the cameras shall be remotely controlled from a control room and no camera personnel are permitted to be present in the courtroom to operate the cameras during the trial;
2.4 the cameras must be pre-set to ensure that no extreme close-ups of any witness, legal representatives, the presiding judge, or any person in attendance at the trial, takes place;
2.5 the equipment is not permitted to record in any manner any confidential communication between legal representatives or between clients and their legal representatives, or any bench discussions (between the judge and any lay assessors that may be appointed). The presiding judge shall specifically direct when recording should start and when should they stop;
2.6 the equipment shall be deactivated so that no recording whatsoever can take place while the court is not in session, including any breaks (such as lunch and tea breaks), and during the time before the court is in session and after the judge has adjourned the trial at the end of each day;
2.7 the cameras shall not be accompanied by any “movie lights”, flash attachments or artificial lighting devices and no visible or audible light or signal is permitted;
2.8 MultiChoice and Primedia may install their own audio-recording system provided that this is unobtrusive and does not interfere with the proceedings;
2.9 The Judge President and/or the Deputy Judge President and/or the presiding judge and/or the Court Manager may visit the control room to check how the recorded images would appear on the Television screens when broadcast and to give directions regarding the images to be broadcast to avoid “extreme close up images”.
The portions of the trial that may be recorded and broadcast
3. MultiChoice and Primedia are permitted to broadcast the audio recording of the entire trial in live transmissions, delayed broadcasts and/or extracts of the proceedings.
4. MultiChoice and Primedia are permitted to broadcast the audio-visual recording of the following portions of the trial only, in live transmissions, delayed broadcasts and/or extracts from the proceedings:
4.1 Opening argument of the state and accused;
4.2 Any interlocutory applications during the trial;
4.3 The evidence of all experts called to give evidence for the state, excluding evidence of the accused and his witnesses;
4.4 The evidence of any police officer or former police officer in relation to the crime scene;
4.5 The evidence of all other witnesses for the state unless such a witness does not consent to such recording and broadcasting and the presiding judge rules that no such recording and broadcasting can take place;
4.6 Closing argument of the state and the accused;
4.7 Delivery of the judgment on the merits; and
4.8 Delivery of the judgment on sentence, if applicable.
5. The Media 24 applicants or their authorized representatives are granted permission to set up equipment to obtain still photography of the trial, subject to the following conditions:
5.1 Two still photography cameras will be fixed at locations within the courtroom. These will be used for purposes of taking and publishing still photographs of the court proceedings during the trial, subject to the provisions set out below;
5.2 The cameras shall be installed in locations in the courtroom which are as unobtrusive as possible, and so that the proceedings are not interfered with;
5.3 Each of the cameras shall be controlled by one of the applicants‟ representatives, who will at all times remain behind the cameras while court is in process;
5.4 The aforesaid cameras may not be moved while the Court is in session, and no changes of lenses or film shall be permitted while the Court is in session.
5.5 No extreme close-up photographs of any witness, legal representative, the presiding judge, or any person in attendance at the trial shall be taken;
5.6 Flash photographs shall not be permitted;
5.7 No artificial lighting devices and/or visible or audible light or signal shall be permitted;
5.8 No cabling for the cameras on the floor of the court shall be permitted;
5.9 No identifying names, marks, logos or symbols may be used on any equipment or clothing worn by the representatives of the applicants;
5.10 The Media 24 applicants are permitted to take still photographs during the entire trial, excluding the accused and his witnesses when they testify, provided that witnesses other than expert witnesses for the state or police officers or former police officers who testify at the trial;
5.11 may object to being photographed whilst giving evidence and if the presiding Judge rules that such witness may not be photographed whilst giving evidence, the applicants shall refrain from doing so; alternatively
5.12 may subject his or her consent to reasonable conditions, including that his or her face be obscured in any photograph published or that only wide-angle photographs of him or her be allowed, meaning photographs that include not only the witness but as much of the physical surrounds of the courtroom as is technically possible.
6. Any witness whose testimony is to be broadcast in audio-visual form may subject his or her consent to such broadcast to reasonable conditions (which shall be communicated to MultiChoice and Primedia or their representatives by the state including:
6.1 The broadcasting of the evidence from behind with the face of the witness obscured from public view;
6.2 The broadcasting of the evidence from the front but with the face of the witness obscured from public view;
6.3 The broadcasting of the evidence only by way of a “wide shot”, i.e the central camera placed at the back of the courtroom would depict the entire courtroom with the judge at the center of the image and the witness only visible in the background;
6.4 The Presiding Judge may on good cause withdraw the permission and/or change the conditions set out above.
7. Objections by witnesses to the audio-visual recording and the still photographing of their evidence shall be in writing and will be served on the Prosecution and the accused‟s attorney and be delivered to the Office of the Deputy Judge President at least 24 hours before the testimony of the said witness to avoid delaying the trial. The Deputy Judge President shall first deal with the said objections in chambers and if same cannot be resolved, the presiding judge shall make a final ruling on the issues after hearing the parties.
8. Notwithstanding the above, the presiding judge shall retain a discretion to direct that, in the event that it becomes apparent that the presence of the cameras or the recording and/or transmitting and/or broadcasting is impeding a particular witness‟s right to privacy, dignity and/or the accused‟s right to a fair trial, MultiChoice and Primedia and the print Media 24 applicants will be directed to cease recording and/or transmitting and/or broadcasting and/or photographing of the testimony.
9. The MultiChoice and Primedia and the Media 24 Applicants are directed to make the feed from the authorized broadcasts and still photograph referred to above available free of charge to the e.Tv applicants and any other broadcaster and/or media organization in “clean” form, that is free of any logos.”