With respect, Milady has erred in pictures ruling

05 March 2014 - 02:03 By The Times Editorial
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Image: Supplied

The decision by Judge Thokozile Masipa to prevent publication of photographs of Michelle Burger, a witness in the Oscar Pistorius trial, should be challenged.

Masipa made her ruling after prosecutor Gerrie Nel told the court, somewhat theatrically, that a photograph of the witness was visible on the eNCA television channel.

eNCA said it had obtained legal opinion before showing the photograph and that it was not in violation of the order granting broadcast access to the courtroom.

Last week Judge Dunstan Mlambo ruled that the trial could be broadcast but that witnesses would be able to cut live visual coverage of their testimony. In his judgment, Mlambo clearly and specifically restricted this control to "broadcast images" from the courtroom.

The objective was not to protect the identity of witnesses but to prevent them from being discomforted by having to testify before rolling cameras.

Masipa's ruling appears to be an ill-considered extension of this control to all images of witnesses, even those already in the public domain.

What exactly she intended to achieve is unclear. She was not protecting the identity of the witness - Burger's name, address (including aerial photographs of her house) and occupation are already in the public domain.

Even more absurdly, it means that, were the trial not being broadcast, there would be no limitation on publication of images of witnesses.

The Mlambo judgment was hailed as a victory for transparency, but it appears to have opened the door to the removal of the existing right of media organisations to publish images of participants in a court case.

At the heart of yesterday's controversy was the weakness of the Mlambo judgment. The judge shied away from either opening the courtroom to broadcasters or keeping them out altogether. By choosing a middle route, he has opened the way for confusion and, as occurred yesterday, unwise rulings that threaten media freedoms and extend the procedural authority of judges beyond courtrooms and onto the streets.

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