Like a lot of users of the internet, I regularly browse both English and American news websites, and sometimes Australian news sites too (if the cricket is on!). As the Oscar Pistorius story has dominated headlines, that pattern has expanded to South African news websites.
When it comes to this particular story, what the news websites of all of these countries have in common is a remarkable degree of speculation about a suspected murder investigation.
As a media lawyer, I have been simply amazed by the amount of “whodunnit” speculation, and the reporting of the detail of the investigation.
The British public and press will be used to the restrictions on reporting of crime imposed by the laws of contempt in the UK, where publishing details of a criminal investigation which have been leaked in this way would put a publication at risk of contempt proceedings.
However, speculation about the death of Oscar Pistorius’s girlfriend, Reeva Steenkamp, has been rampant, and it appears that the appetite for details of the story in South Africa is voracious.
Before Pistorius had even pleaded to a charge in Court, or faced a bail hearing, we had heard about a “bloodied cricket bat”, speculation of whether or not he thought Steenkamp was an intruder, reporting of an apparent Police statement that this was the case, which was then forcefully denied by the Police spokesperson, details of Steenkamp’s nightdress, and reports about Pistorius’ apparent history of using guns, and about his alleged temper.
Copy containing any one of these details would cause a Media lawyer in this country to break out in a cold sweat.
So, how can the South African press get away with it?
At first sight, the law in South Africa is much the same as ours. Prosecutions for contempt of court can be brought against a media organisation if a report presents a “real risk” of substantial prejudice to the administration of justice. That test, which in South African law is called the sub judice rule, will be familiar to UK journalists and media lawyers; it is essentially the same test as ours.
However, the test is applied very differently in South Africa. The biggest difference is that South African criminal trials are not decided by a jury, and the approach taken in South Africa seems to reflect a general principle or belief, that it is much less likely that a report would give rise to a real risk of substantial prejudice to the administration of justice, when cases are dealt with by a professional judge.
There has been substantial debate in the South African press about whether the details disclosed in the Pistorius case have “crossed the line” represented by their sub judice rule. However, the South African media lawyers I have seen quoted in the South African press seem to agree that the details disclosed so far don’t cross that line.
The message for those of us based in the UK is clear: read the reports, shake our heads in bewilderment or wonder at how much detail they contain, but remember that our law is very much stricter.