The tide doesn’t seem to be turning for Oscar Pistorius any time soon. Tuesday’s judgment in the matter of media access to the Pistorius trial means that the murder-accused athlete must now face the prospect of having his character, activities and past picked apart in front of a live audience. Whichever way the trial goes, that probably isn’t going to do the Pistorius brand much good: something anticipated by Pistorius’s opposition to a live trial broadcast.

On the other hand, the fact that the Pistorius PR machine has set up a Twitter account (@OscarHardTruth) dedicated to correcting the “untruths, half-truths and versions of the truth” spread up till now suggests that they haven’t been delighted with the tenor of media reporting on the matter thus far. At least the benefit of a live trial broadcast, from their perspective, should presumably be that a global audience will be able to witness events unmediated by those they accusing of holding “ulterior motives”.

Recent research suggests that the Pistorius camp may have reason to want to wrest control of the narrative. The Media Online reported on Tuesday that company Media Tenor SA’s analysis of TV news bulletins about the Pistorius case found that coverage of Pistorius in South Africa since the shooting has been predominantly negative – a far cry from the adulation he once received as a champion Paralympic athlete. Researcher Minette Niewoudt was quoted as summarising the shift thus: “First, he was an athlete who stumbled. Now, he’s a criminal who used to be an athlete.”

It’s no exaggeration to say that some portions of the international community have been shocked at the South African coverage of the matter thus far, in terms of allegations and leaks about the case regularly published and broadcast. Legal commentators have patiently explained that the rules are different here: because the jury system was abolished in South Africa in 1969, the sub judice regulation that applies elsewhere is effectively null and void. Nonetheless, a concern for ensuring the right to a fair trial is very much alive and well, which is exactly the question that Judge Dunstan Mlambo had to grapple with when considering whether he should grant the application from media houses to record the entire Pistorius trial.

Despite the fact that the media outlets largely got their way, it’s not clear that Judge Mlambo has a very lofty opinion of journalists. In fact, one of the reasons he cited for permitting the broadcast, with limitations, is that it would lift the dependence of the public on “the summarised versions of the journalists and reporters who follow these proceedings”. Such accounts, he said, “have in my view been correctly categorised as second hand, liable to be inaccurate as they also depend on the understanding and views of the reporter or journalist covering the proceedings”.

Mlambo also quoted a previous Constitutional Court judgment, noting particularly the dangers of TV and radio broadcasting, in terms of the ability of footage to be “manipulated” through editing. The judge indicated that he was very much alive to the dangers of a “trial by media”, and he reserved a stern warning for “24-hour channels dedicated to the trial only”, with “panels of legal experts and retired judges…assembled to discuss and analyse proceedings as they unfold.”

To those players, he said: “There is one court that will have the duty to analyse and pass judgment in this matter. And that is this one.”

So despite this cynicism, why did the media houses largely get what they want? Mlambo indicated that his ruling had required a very careful balancing of the right to a fair trial, the right to freedom of expression, and the principle of open justice. In terms of the latter, Mlambo intimated that opening up the transmission of trial proceedings to TV and radio would remove an elitist element whereby those who have access to tools like Twitter are advantaged in the way a minority are not.

Interestingly, the judge also said that he hoped that allowing South Africans first-hand access to the trial would dispel the notion that the rich and famous are treated “with kid gloves” by the South African criminal justice system. If it works as he hopes, the trial might prove a timely palliative to the Waterkloof Two “cell party” debacle.

The Pistorius camp had opposed the broadcasters’ application on the basis that witnesses might be inhibited; that the presence of recording equipment might be intrusive and distracting to witnesses; and that future witnesses might be able to fabricate their testimony based on what past witnesses had testified. Mlambo didn’t appear to deal directly with the last claim, but his solution to the other two concerns was to enable witnesses to opt out of being recorded, and to make the recording as unobtrusive as possible through the use of three remote-controlled cameras only, without camera operators in the courtroom.

There are other restrictions on the broadcasting, but the media outlets involved were in celebratory mood after the judgment. But despite all the lofty talk of precedent-setting and bringing courts into the 21^st century, aren’t they really just happy at the thought of the ratings win they can expect?

“No. Hand on heart,” responded Patrick Conroy, Group Head of News at eNCA, one of the broadcasters which launched the application. Conroy pointed out that eTV has been consistently lobbying the courts for the right to broadcast legal proceedings for the last ten years, including the King Commission into cricket match-fixing, the Schabir Shaik trial, and Julius Malema’s appearance at the Equality Court.

“This is not just about the Oscar Pistorius case. That’s just the most prominent case before us now,” Conroy told the Daily Maverick. “We will conceivably face a situation in the next few years where high-profile politicians are on trial. Here, there’s the chance to set the ground rules.”

Conroy pointed out that courts have traditionally been “newspaper-centric”, at a time when the print media’s reach is dwindling. “TV is over a hundred years old and is only just getting access. Yet Twitter sneaked into the courtroom unannounced within the past six years and was unchallenged because nobody saw it coming. Today the courts recognised this change.”

Judge Mlambo stressed that if media outlets did not follow the restrictions set for broadcast, it would be at the discretion of the trial judge – Thokozile Matilda Masipa – to pull the plug. “Media will have to realise the gift it’s been given here,” Conroy confirmed. “We cannot collectively stuff this up.”

Carte Blanche is running the 24-hour DSTV pop-up channel (199), which will carry a full live broadcast of the trial. Conroy says that the trial will be live-streamed on the eNCA website, and that channel eNCA will be broadcasting “large portions”, as much unedited as possible. “But we are mindful that more goes on in this country than the Oscar Pistorius trial, and we will have to find a balance,” he said.

The same point was made by EyeWitness News head Katy Katopodis. “EWN will focus a lot on the trial while remembering that there is whole country that operates outside it,” she said. “We have certainly thrown a lot of resources and some senior journalists at this. But we will be striking a balance with reflecting the other big stories and goings-on in this country.” EWN reporters will be working on the Carte Blanche channel to give reports and live crossings, and EWN is creating a separate online portal dedicated exclusively to content related to the Pistorius trial.

Primedia’s Alastair Teeling-Smith, Programming Manager for 702, confirmed that Primedia would be broadcasting the audio of the trial live on a pop-up radio station running across the websites of 702, Cape Talk, Highveld and Kfm. “On 702 we will take the interesting bits live – opening statements, main witness cross-examination, etc.,” Teeling-Smith said.

In other words, you won’t have to move far to hear or see live footage from the Pistorius trial. In fact, you’ll be deluged with the stuff. Which raises a question: isn’t it possible that the media is over-estimating the public appetite for the trial?

Conroy doesn’t think so. “The public appetite extends way beyond our borders,” he said. “Since [Judge Mlambo’s decision] I’ve had calls in the last few hours from all the major international broadcasters asking how they can get access to our footage. We underestimate as South Africans that this is a global story. The world’s eyes are going to be on our trial, and on our judicial system.” Conroy pointed out that when eNCA broadcast simply the audio feed of the Pistorius bail hearing judgment, the channel reached their highest ratings ever for that time, later exceeded only by the coverage of the death of Nelson Mandela.

Teeling-Smith struck a more cautious note. “Talk radio is such an interactive medium that we have the luxury of knowing what’s on the mind of our listeners,” he said. If call-ins revealed signs of Oscar fatigue, would the Primedia channels scale back coverage? “We’d take direction from our listeners,” he said. DM

Read more:

• Media on tight rein for Oscar trial, on IOL

Photo: Oscar Pistorius awaits the start of court proceedings in the Pretoria Magistrates court February 19, 2013.  REUTERS/Siphiwe Sibeko