Introduction

Statutory prohibitions bar television cameras from courtrooms in England, Wales and Northern Ireland.

Since 1925, section 41 of the Criminal Justice Act 1925 has imposed an absolute ban on the taking of photographs in courtrooms and in the precincts of courts in England and Wales. Section 29 of the Criminal Justice Act 1945 imposes an identical prohibition with respect to courts in Northern Ireland. Though section 41 does not expressly prohibit the televising of court proceedings, its prohibition on the taking and publishing of photographs in courts has been held to apply to television cameras. Prior to 1925, courtroom photography in England and Wales had been regulated and sometimes prohibited by judges' exercise of their inherent power to control proceedings, and the law of contempt of court.

As section 41 does not apply to Scottish courts, such inherent power has governed camera access to courtrooms in Scotland. A rule of practice flowing from the courts' inherent power effectively banned cameras from Scottish courts prior to 1992, and continues to severely restrict such coverage.

Since 1981, sound recording of British court proceedings has also been prohibited by section 9 of the Contempt of Court Act 1981, which imposes an absolute prohibition on the publication of sound recordings of legal proceedings and restricts the use of recording devices to occasions where leave is granted by the court and to the recording of official transcripts of proceedings.

Introduction

Though often overlooked and overshadowed by the experiences of the neighbouring United States, Canada's extensive and wide-ranging experiences with cameras in courts are particularly instructive for countries which share Canada's Westminster heritage and the common law principles which govern its regulation of media reporting of court proceedings.

This chapter begins its analysis of Canadian developments by considering Canada's acceptance, experience and evaluation of the televising of appellate proceedings. This aspect of Canada's experiences is unique among the jurisdictions under consideration in this book. In particular, it is noted that in contrast to its counterparts, especially in the United States and Australia, the Supreme Court of Canada has arranged to have its hearings recorded and broadcast for the past ten years. Favourably received experiments have also been carried out in other Canadian federal and provincial appellate courts, and are shown to have led the Canadian Judicial Council to qualify its opposition to in-court televising, at least with respect to such proceedings. As outlined, Canadian appeal court experiences and evaluations appear to substantiate the desirability of televising being introduced incrementally, beginning with appeal hearings, which entail the least potential risks and problems.

The clear distinction which Canadian courts draw between the televising of trials and the televising of appeal hearings has served to focus the Canadian debate's attention on evidence as to the impact of televising on trial participants.

1. In these guidelines where the context permits: ‘film’ includes still photography and photographs; ‘camera’ includes video and still cameras; ‘cover’ and ‘coverage’ means film or electronic cover or coverage and includes any recording or broadcasting using television, video, photographic or sound equipment.

2. Coverage of judicial proceedings is permitted only on order of the Presiding Judicial Officer, who may grant or refuse permission in his/her absolute discretion and on such terms and conditions as he/she sees fit.

3. Applications for permission to cover judicial proceedings should be made in writing through the Public Information Officer.

4. The Presiding Judicial Officer may at any time and from time to time in his/her absolute discretion limit, suspend or terminate coverage of the proceedings or prohibit the publication of material gathered by coverage of the proceedings and shall do so whenever the interests of justice require and whenever necessary to protect the dignity of the Court or to assure the orderly conduct of proceedings.

5. Partiesmust be given a reasonable opportunity to object to coverage of the proceedings or to any part thereof or to the continuation thereof.

6. Objections are to be made to the Presiding Judicial Officer and may be made orally or in writing before the commencement of the proceedings or at any stage.

Introduction

The televising of proceedings in American courtrooms has been the subject of countless articles, books, studies and experiments. Consequently, this chapter does not propose to go down the well trodden path of outlining the history and experiences of American courts. Instead, it focuses on those aspects of the American experience which other common law countries regard as precedents, against which their experiences are measured, to which they are compared, and which inevitably serve as reference points in any analysis of the televising of court proceedings.

This chapter begins with an analysis of the virtual banning of cameras from American courtrooms in the early twentieth century in order to facilitate a clearer understanding of the technological, legal and other reasons why courtroom televising was initially banned and has subsequently come to be accepted, though often subject to significant restrictions, in all state jurisdictions in the United States. It also facilitates a consideration of the introduction of televising as a step in the evolution of courtroom reporting.

The dominant role which constitutional rights issues have played in determining the nature of the debate, and the manner in which courtroom reporting is regulated in the United States, are then examined and shown to contain important lessons for other common law jurisdictions.

This chapter's examination of some of the major studies undertaken in American courts not only discloses invaluable precedents for regulation or administration of courtroom televising, but also reveals why such studies are inevitably deemed inconclusive.

Introduction

Australian court proceedings were televised for the first time on 20 February 1981, after Northern Territory Magistrate Denis Barritt, the Coroner in the First Coronial Inquiry into the Death of Azaria Chamberlain, had invited television cameras to record and broadcast live his findings in order to counter ‘the unfounded rumours that had circulated in relation to the inquest’. The magistrate's initiative and motivation were to set the pattern for most subsequent televising of Australian courts.

In the subsequent twenty-six years, courts in all Australian jurisdictions have admitted television cameras into their courtrooms. Footage which is currently permitted to be recorded ranges from file footage of judges on the bench, ceremonial and special sittings, and mute overlay footage, to sound and vision recordings of segments or even entire proceedings. Such footage has been used in live and delayed broadcasts, in documentaries, news and current affairs programmes, by free to air and pay-TV networks. It has also been streamed on the Internet. However, while a number of Australian courts – in particular the Federal Court of Australia and the Supreme Court of Victoria – admit cameras on a regular, albeit ad hoc basis, most Australian courts admit television cameras very rarely and usually only to permit the recording of file and overlay footage or ceremonial sittings. Western Australia remains the only Australian jurisdiction to have enacted specific guidelines for the televising of court proceedings.

Private enforcement has long been a central part of US antitrust law experience, while it has played minor roles or none at all in European competition law systems. This contrast is fundamental to understanding differences between European and US competition law and to assessing the potential consequences of increasing the role of private enforcement of competition law in Europe. It is also central to decisions about competition law development in much of the world, because in this respect most competition law systems in the world resemble European competition laws rather than US antitrust law.

In this essay, I examine the private enforcement of competition law in the US and Europe against the backdrop of efforts in Europe to rely more heavily on private enforcement in the enforcement of its competition law. As part of its so-called ‘modernization’ efforts, which went into effect on May 1, 2004, the European Commission seeks to reduce reliance on administrative authorities and to encourage those harmed by restraints on competition to bring private law suits in national courts. There is, however, widespread uncertainty about the prospects for successfully incorporating private litigation into European competition law systems. There is also uncertainty about which, if any, measures should be taken to enhance acceptance of private enforcement.

In assessing these issues, a comparative perspective can be of much value. It can provide a basis – perhaps the only sound basis – for making informed decisions.

Approach of this comparative study

The status quo of legal harmonization in unfair competition law

Lack of a ‘European unfair competition law’

European integration is making progress; the European Constitution Treaty has been passed and scholars are discussing a European Civil Code. In the field of unfair competition law only few directives exist and one is tempted to use F. Rittner's words which he once used to describe the law of contract: European directives create only ‘islands’ of harmonized law within each national law that exist without any connection between them. Accordingly the law of unfair competition is still based on many origins and very often overlaps with the law of consumer protection, contract and intellectual property.

Nowadays all modern legal systems offer protection against unfair competition, i.e. against ‘any act of competition contrary to honest practices in industrial or commercial matters’, in short against ‘dirty tricks’. Because of the differing traditions in the Member States the enforcement of infringements of unfair competition law has only been harmonized marginally. In the different European directives courts and administrative agencies are equally named as competent for enforcement. Moreover, an additional self-control is allowed. This form of harmonization leaves everything as it was before. The sanctions are numerous and as disparate as the provisions dealing with material aspects.

Objects of claim – the sanctions

Case 1 Risky bread: order to cease and desist, elimination, publication

A is a baker. He advertises his products as being particularly environmentally friendly. At the same time he claims that his competitor B sells bread with additional ingredients whose risks have not yet been analysed sufficiently. Therefore, it would be very risky to eat the bread offered by B. A has also printed advertisements stating these claims.

In which way can one prevent A from publishing this misleading advertisement in the future?

Austria (1)

Assuming that the risks posed by the additional ingredients used by B cannot be proven, A's advertisement is a depreciatory comparative advertisement since A combined his allegations with the advertisement for his own product, allegedly particularly free from harmful substances. This advertisement can also be misleading, if A's bread is actually free from harmful substances in order to comply with law relating to food and drugs. If this is the case, it would be an advertisement stating obvious facts. Where comparative advertisement is concerned the advertiser bears the burden of proof for the statements of fact contained in the advertisement (§ 2 para. 5 UWG). This is congruent with the burden of proof in § 7 UWG: the plaintiff only has to prove the allegation (circulation) of the harmful facts, whereas the defendant – comparable to § 111 f StGB – has to prove the truth of his allegations.

From the very beginning the Treaty of Rome included basic rules on competition law. However, these rules only covered restraints of competition (‘antitrust law’), not unfair competition law. Since then, the situation has considerably changed. The fundamental freedoms of the treaty as well as secondary community legislation have heavily influenced both fields of law. Even if this development led to an important harmonization of competition law in the Member States, one aspect has stayed rather untouched: the legal consequences of a competition law violation have been left to a large extent to the disposal of the national legislature. As far as the legal consequences in private law are concerned every national legal order has tried to integrate competition law violations into its national tort law (or in some respects contract law) system. In this process, private remedies for violations of unfair competition law have gained a greater practical importance in Europe than those for violations of antitrust law. But even in the latter branch of law, public enforcement is increasingly complemented by private law mechanisms.

The wide variety of solutions which are proposed by national law were the reason for the editors to start the comparative venture within the Trento project on the Common Core of European Private Law. Based on the Common Core methodology (elaborated by Ugo Mattei and Mauro Bussani in the tradition of Rudolf B. Schlesinger and Rodolfo Sacco), i.e. on a questionnaire containing several cases which are discussed and answered by national reporters pursuant to their respective national legal systems and taking into account all legal and extra-legal formants, we have compared the state of the law in fifteen EU Member States.

In December 2005, the European Commission published a Green Paper on Damages Actions for Breach of the EC Competition Rules. This document has provoked a discussion on the role of private actions which goes far beyond competition law. Many take the view that Europe should avoid the traps into which US law has stepped by admitting excessive litigation due to a system of class actions, punitive damages, pre-trial discovery and contingency fees. European law should not pave the way for judicial proceedings which ultimately do not serve the interests of the injured parties but rather those of their lawyers, consultants or other agents. According to the methodology of the Common Core of European Private Law project, this inquiry gives a description of the state of remedies in competition law in fifteen European countries and analyses the underlying determinants. On this basis, proposals are developed showing how the enforcement of competition law could be improved. The flaws can be fixed without running the risk of abusive litigation. To this end, it has been instructive to include two fields of law which are normally treated separately, i.e. unfair competition law and antitrust law. Although the two branches share common goals, their enforcement has taken completely different paths. Whereas in many reporting countries unfair competition law is endowed with effective private law (and in some countries also with public law) remedies, the implementation of antitrust law is in practice almost completely entrusted to administrative enforcement.