Some courts have issued special directions restricting the ability to record online proceedings. Many tribunals have the authority to make rules of procedure on conduct at hearings or to at least make specific orders in individual cases. These sorts of prohibitions are particularly important where the subject matter of the hearings is sensitive, as in sexual abuse cases.
Regulators will have difficulty enforcing restrictions related to recording online proceedings because it is even more difficult to know if a recording is being made at an online versus in-person hearings.
While the concern about disrupting the proceeding by recording it is minimal, the concern about the later misuse of such recordings to embarrass or harass witnesses or other hearing participants increases. Perhaps the threat of after-the-fact enforcement can provide some reassurance.
Some other options for tribunals might include:
- Ordering restrictions limiting or prohibiting the recording of the proceedings with limited exceptions (e.g., non-visual note taking).
- Limiting the ability to see some of the hearing participants. However, that may be difficult if the parties need to see those participants for the purpose of cross-examining witnesses.
- Closing off parts of the hearing to the public where the risk is extreme (e.g., the examination of a vulnerable witness in a sexual abuse matter). Tribunals could also use technology that requires access to be granted by a moderator in order to prevent unauthorized participants joining the phone/video call.
- Requiring those attending the hearing remotely to identify themselves (normally observers should not be asked to do this, but this sort of request might be reasonable in some highly-sensitive cases, or for the testimony of some highly-sensitive witnesses). Where technology permits, the participant names could be checked against call-in details to ensure that all callers have been identified.
There may be other technological options as well (e.g., allowing parties full visual access to witnesses during cross-examination while observers see only an obscured face, or even distorting a witness’s voice slightly so that it is not identifiable).