Social media on trial

99716533 copyDoes Twitter belong in the courtroom or does it have the power to pervert the course of justice? In an article first published in Encore, Nic Christensen finds out. 

As social media becomes an increasingly important part of modern reporting, the Australian judicial system is having to grapple with the complex challenges of when and how to allow it in the courtroom.

“Most court reporters in Sydney have Twitter accounts and do a lot of tweeting inside court from first appearances to verdict,” one court reporter told Encore. “To be honest, we never ask permission and have never been asked about it.”

More and more journalists and judicial officers are raising concerns about the lack of clear rules around the practice.

Last month, journalist Kate McClymont told Encore that while she was an active social media user, and had tweeted at length during the Independent Commission Against Corruption (ICAC), she had concerns about journalists tweeting during court cases involving juries.

“I’ve only tweeted from ICAC because there is no jury involved,” McClymont said. “But I think this is going to be an interesting legal question. As reporters, we are meant to be representing the man in the street. So what we hear and see in a court case, we are able to tell our readers. However, [there are problems with] the idea of tweeting every few moments.”

This perspective is shared by Patrick Keyzer, a legal expert and professor of law at Bond University. “Social media does heighten the risk of information being published which shouldn’t be,” he says. “For example, witnesses who are outside the court might be in the court precinct waiting to give their own evidence and go online and learn what is happening inside the court. It raises all sorts of issues. These are the things that really need to be examined closely and resolved.”

Katie Miller, vice president of the Law Institute of Victoria and chair of its social media task force, says there is also a much greater risk of information which might later be suppressed coming out via social media. “One issue concerns suppression orders,” she says. “There are reasons why you sometimes need to limit the information that comes out in open court but Twitter obviously poses a challenge to that because of the immediacy of what is happening.”

“If you have someone who is live tweeting, they may have actually tweeted the evidence that needs to be subject to a non-publication order before the barrister has even had time to get to their feet.”

The lack of awareness judges have regarding social media in courtrooms is another issue.

“Judges who practice in areas such as criminal law and personal injury will be increasingly aware of it because they are seeing social media introduced as evidence in their court,” says Miller. “In other courts there may not have been as much of a call for social media to come into the courtroom, so as a result they may be less aware of it.”

The Australian Institute of Judicial Administration conference in Sydney last week heard that social media awareness is a key concern among court public information officers. “It’s pretty clear to us that there is a diverse range of understanding of social media among judges,” says Keyzer.

“At the conference we conducted some focus group research among public information officers which identified judicial lack of understanding or misunderstanding of social media as one of the top issues that they have to contend with. Public information officers are the people assisting judges in communicating messages to the public and they have identified judges in some courts that may need more assistance so they can develop a better understanding of the space.”

One journalist who has encountered issues around the use of Twitter in the courtroom is Margaret Simons. In November 2011, Simons was instructed by magistrate Peter Mealy in the committal hearing of Australian Federal Police officer Simon Artz to cease tweeting after she had published the morning’s proceeding on the microblogging site on behalf of Crikey, her then employer.

“At the time, there were no rules about live tweeting or using social media from inside the courtroom in Melbourne Magistrates Court. I did check,” says Simons, who is also the director of the Centre of Advancing Journalism.

After another reporter informed the court that Simons had been using Twitter, the magistrate announced to the courtroom he was aware someone was “Twittering” and that, “it will be contempt if it does occur from this court”.

Simons acknowledges that she failed to ask the magistrate’s permission, an increasingly common practice, but says that once instructed to cease, she immediately did.

The Law Institute of Victoria’s Miller says one of the challenges is the inconsistent rules across jurisdictions and various courts.

“It might well differ from court to court,” she says. “For example, family court would – quite legitimately – have different rules to a district court.”

While this is warranted, Miller believes the key is educating all of the stakeholders what the rules are so that everyone is on the same page.

“There absolutely should be policies on this,” she says. David Penberthy, editor of Adelaide’s Sunday Mail newspaper and former editor of Sydney’s The Daily Telegraph, a newspaper with a long history of court coverage, says journalists and editors need to play their part in clarifying the rules. 

“It’s probably something that could be done in a collaborative way because obviously courts are open forums in Australia. There are certainly limitations which already exist here and in other democracies,” he says. “Aside from the obvious fact that you don’t want to be responsible for causing a mistrial that lets somebody get off, you’ve also got to make sure that proper legal processes are followed.”

Penberthy also sounds a broader cautionary note. “Court reporting has, historically, been an exercise in presenting a balanced account of the day’s events in the courtroom but if you enter into some sort of running commentary, you probably risk errors of emphasis, or inviting comment on something which has not been established or resolved. This is something that the media has to be really careful about,” he says.

Bond University’s Keyzer, the lead author on the report Juries and Social Media delivered to the Victorian Government in April, says his research shows most media outlets are managing the issue with caution and responsibility.

“More training certainly wouldn’t hurt,” he says. “But most traditional media outlets now have policies in place. They appear to be applying their standard editorial policies and protocols to social media.” However, Keyzer is currently more concerned about the potential of jurors misusing social media.

“If a juror uses social media in the context of a jury trial, that can lead to an aborted trial,” he says. “This can come at a very significant expense, both financial and emotional for those involved.”

The report cited key examples of juror misconduct, such as a 2011 UK court case involving a juror who approached the defendant in a drug case on Facebook. She was sentenced to eight months in prison for contempt of court.

Keyzer says another issue emerging is the legal ramifications of judges using social media. “It raises interesting issues around the risk that judges may tell us too much about their personal lives and that may lead to increased application for them to be removed on grounds of bias,” he says.

The Law Institute of Victoria’s Miller says this issue can be extended to include others within the legal system who may one day preside over our courts. “We’re at the point where if you’re a judge you are unlikely to be on Twitter but if you are a barrister or a solicitor you may be. We are going to, over the next few years, see some of those solicitors and barristers go on to the bench and that’s where it is going to get interesting,” she says.

“On Thursday, Debbie Mortimer SC was appointed to the federal court and I tweeted her a congratulations, because we follow each other on Twitter. But as soon as I tweeted I thought, ‘I wonder what happens now that she is a judge – do I have to stop following her? How does it all work now?’”

Indeed, this week Justice Mortimer closed her Twitter account.

Ultimately social media has opened a plethora of legal issues that courts will have to face in the coming years.

However, Simons believes these social media concerns are not dissimilar to other forms of court reporting.

She says: “There is no magic to the name Twitter. What’s the difference between live tweeting and doing live updates on a blog or a live radio report from just outside the court?”

“Like many areas of technology the court is profoundly challenged by this stuff and some very clear thinking is what’s needed, about how to manage it.”

Miller says this thinking is already happening and cites the policies that are currently being implemented in many Victorian courts. The key to having the topic taken off the table altogether is putting a clear set of rules in place that apply to all parties from journalists to judges and jurors.

She says: “If everybody just does their own thing, then you are going to have conflict because different people will have different ideas about what is appropriate. However, if we are transparent, people can adjust their behaviour.”

Encore issue 19This story first appeared in the weekly edition of Encore available for iPad and Android tablets. Visit encore.com.au for a preview of the app or click below to download.


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