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Media Can Now Access Court Records

AUTHOR(S): Michael Byrne, Maria Kennedy
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
DATE: 16.08.2018

From 1 August 2018, a change in the Rules of the Superior Courts (the “Rules”) allows the media access to documents opened or deemed to have been opened in High Court, Court of Appeal and Supreme Court hearings[1].  The change in the Rules was brought in as a result of the Data Protection Act 2018[2], and can be expected to have a significant impact in the reporting of court hearings.

At a Glance

While the media have always had the right, subject to certain exceptions, to report what was said in open court, they have not previously had a specific, formal right to access documents referred to in open court.  Under the new Rules, a bona fide member of the media will now be able to access documents opened in court, or deemed to have been opened, in civil and criminal cases.  Certain limited restrictions will still apply to certain types of cases, such as those heard in camera.  Crucially, the new Rules mean that the media may now have access to the full content of documents even if only small extracts of the documents are read out, or where a judge treats a document as having been opened but not actually read out in court, as often happens.

In Depth

Who is a bona fide member of the media?

A bona fide member of the media, as defined by the new Rules, is any of the following:

  • A person who produces a valid current / in date National Press Card issued by the National Union of Journalists;
  • A person who produces a valid ID identifying them as a reporter / correspondent, employed by a national or regional or online news title or website which is a member of the Press Council of Ireland;
  • A person who produces a valid ID identifying them as a reporter / correspondent employed by a national or local broadcaster which is a licensed by the Broadcasting Authority of Ireland; and
  • A person who produces a valid current / in date International Federation of Journalists Press Card.

What documents can the media access?

The media will have access to documents which are “opened” in court and those which have been “deemed to have been opened” at a hearing before the court.  A document is opened to the court where it has been referred to or read out to the court by either counsel for one of the parties or by the judge.   A document is deemed to have been opened where the judge has read the document in advance of the hearing and is treating it as having been opened to the court.

There are still restrictions on the reporting of certain kinds of cases, such as those heard in private (eg, family law cases).  In addition, the court may, where appropriate, place specific restrictions on what the media may report in certain cases.

How can the media access the documents?

The media will be able to access and review court documents by:

  • inspecting the documents under the supervision of the courts or member of the Courts Service;
  • taking a copy of the relevant document from the relevant court office on the undertaking that the copy document will be returned following the completion of the reporting of the hearing; or
  • by obtaining a press release or statement from the court or member of the Courts Service relating to the proceedings.

Conclusion

The Courts Service intends to issue guidelines to the media on accessing documentation in advance of the new legal year, which commences in October 2018.

In the meantime, parties to litigation and their legal advisors should be aware that new Rules mean that the media may now access documents which contain sensitive information / information they may not want to enter the public domain, even where those documents have not been read out in court.

[1]Data Protection Act 2018 (section 159(7) Superior Courts) Rules.pdf / Data Protection Act 2018 (section 159(7) Circuit Court) Rules.pdf / Data Protection Act 2018 (section 159(7) District Court) Rules 2018.pdf

[2]. This is the Irish legislation implementing certain elements of the General Data Protection Regulation 2016 / 679.

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