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Findlay, Leah --- "Courting Social Media in Australia'S Criminal Courtrooms: the Continuing Tension Between Promoting Open Justice and Protecting Procedural Integrity" [2015] CICrimJust 23; (2015) 27(2) Current Issues in Criminal Justice 237


Contemporary Comment

Courting Social Media in Australia’s Criminal Courtrooms: The Continuing Tension between Promoting Open Justice and Protecting Procedural Integrity

Leah Findlay[*]

Abstract

Technological advancements and the rise of social media have transformed the media landscape and blurred the boundaries between journalist and citizen. Traditional media organisations have been quick to embrace the benefits of social platforms, including immediacy, audience engagement and increased circulation. As well as allowing for more detailed representations of court proceedings than may be available in a traditional article format, the capacity to relay information to a vast audience through social media has eliminated some obstacles that have historically placed media organisations in the best position to report on court proceedings. This presents significant opportunities to enhance open justice; however, concerns have been raised about inaccurate and prejudicial reporting, as well as the impact of social media reporting on the practical capacity of judicial officers to control the publication of information relating to criminal proceedings. This article examines the response of United Kingdom and Australian jurisdictions to the use of electronic devices for reporting from courtrooms to examine how the competing imperatives to promote open justice and protect procedural integrity are being balanced.

Keywords: social media – criminal courts – open justice – Australia – United Kingdom

Introduction

Since the launch of Facebook, the world’s largest social networking site, a decade ago, the way in which information is received and shared has been transformed. The ubiquity of this and other new forms of communication and publication has changed the media landscape, with traditional news outlets embracing social platforms in order to maintain their voice in the unprecedented crowded public discourse (Blackham and Williams 2013:170). For the criminal courts, the rise of social media is both exciting and alarming, as participants and spectators come to terms with the new reality of criminal proceedings in a social media world. The appeal of Robert Hughes on the ground, among others, that his trial should have been permanently stayed due to the prejudice incurred by pre-trial publicity, citing in particular the volume and ferocity of social media posts, illustrates how new technologies may exacerbate existing pressures on the administration of justice (see Krawitz 2013; Barrett 2011; Keyzer et al 2013; Wallace and Johnston 2015). Another increasingly common product of the social media revolution is the use — primarily of Twitter — by journalists to provide live updates and commentary directly from the courtroom.

In reality, there is very little criminal courts can do to stifle public comment on social media platforms. Notwithstanding, the development of a principled approach to social media usage within courts by journalists presents an opportunity to advance open justice and embrace the higher levels of transparency and engagement on offer thanks to new media technologies. This article discusses the potential for social platforms to support the media’s traditional role as facilitator of open justice, and highlights the potential implications of social media reporting regarding procedural integrity. The institutional responses to the use of new technologies in criminal courts in the United Kingdom (‘UK’) and Australian jurisdictions will then be examined with a view to investigating how the principles of open justice have been balanced against the need to protect procedural integrity.

The social media revolution and open justice

The rise of social media has driven an information and communication revolution. Microblogging giant Twitter, in particular, provides a platform for unprecedented information flow and exemplifies two key features of social media: extensive reach and immediacy. The vast array of social media services shares a common culture of collaborative content creation, participation, distribution and interactivity (Keyzer et al 2013:47; Blackham and Williams 2013:170). In this social media environment, information can circulate rapidly and there is a growing expectation among the public of live or near instantaneous reporting on major events or items of public interest. While many individuals have embraced the opportunities presented by social media for connecting with friends and family and creating online communities, traditional news organisations have also adapted to this new landscape through an increasing online presence and the active encouragement of sharing of their content through the provision of links to all major social networking services on their websites.

In recent years, the use of social media in criminal courtrooms by dedicated court reporters has increased demonstrably. Journalists now have direct access to the news audience, facilitating both a shift away from traditional reporting styles and the streamlining of the reporting process (Krawitz 2013:9). Now, the provision of a continuous stream of live text updates during significant courtroom ‘events’, such as the accused’s evidence, cross-examination of a key witness, the returning of a verdict, and sentencing, is commonplace prior to the publication of a traditional article. So-called ‘citizen journalists’ also have the capacity to relay court proceedings and comment in a hyper-public forum where their information stands alongside the outputs of established news outlets (Barrett 2011:13; Keyzer et al 2013:47). These developments have introduced a further element of complication to the sometimes tense relationship between the courts and media in Australia, where aggressive reporting practices often conflict with the procedures of the criminal justice system (Barrett 2011:3).

Specifically, the anonymity afforded by the internet and the lack of oversight to which most online content is subject has caused some consternation about the entry of social media into the criminal courtroom space (see, for example, Bartels and Lee 2013). The huge amount of power held by traditional media actors is mediated by their visibility, reputation and professional standards. Conversely, new media actors are essentially uncontrollable in the way they exercise their power as their identities may be harder to ascertain and their access to social media largely unmoderated. Consequently, there is a disparity in accountability mechanisms for old and new media agents despite similarities in publication medium and potential reach (Barrett 2011:12–13, 16). However, some degree of (new or old) media accountability may be influenced by the public’s increased accessibility to online material and the courts’ capacity to participate in public discourse on the same level via their own social media accounts.

Open justice is a fundamental feature of common law criminal proceedings. This principle allows for public and professional scrutiny and acts as a mechanism for facilitating transparency and ensuring the accountability of participants in the criminal justice process (Barrett 2011:1–4; Krawitz 2013:3–4; Scott v Scott; Hogan v Hinch). Given the general impracticality (and, perhaps, undesirability) of large-scale public attendance at courts, the media plays an important role in preserving the operation of open justice by acting as a ‘surrogate’ observer. In this way, open justice allows access to the courtroom and also ensures access to information about criminal courts and their processes (Barrett 2011:7, 11).

In the past, the significance with which the media’s role was regarded afforded journalists privileged access to information from the court itself or through carefully fostered relationships with police officers and lawyers (Barrett 2011:16). This special status reflects an understanding that public knowledge of court matters helps to increase community confidence in the integrity, effectiveness and impartiality of the criminal justice system (Krawitz 2013:3). In many cases, however, new media actors are excluded from these additional channels of information open to professional journalists because they are not attached to or do not fit within the traditional conception of ‘the media’ (Barrett 2011:16). This highlights the shifting boundaries of reportage and the need for criminal courts to

re-examine their relationship with this evolving sector.

The expanding pool of media actors has raised a number of concerns, including the risks of inaccurate, prejudicial or unethical reporting (see Wallace and Johnston 2015). However, the use of social media by professional journalists or genuine legal commentators in criminal courtrooms may enhance public confidence in the criminal justice process by facilitating an otherwise unattainable level of citizen engagement. New South Wales Supreme Court Chief Justice Bathurst (2012:45) suggested that the criminal justice system is ‘currently experiencing a crisis of confidence’ attributable to several factors, including weakening public trust, distribution of misinformation and a general lack of community education. Permitting the use of social media as a reporting tool in the courtroom may increase the level of public exposure to court proceedings and, consequently, improve levels of public awareness and understanding (Doyle and McNamara 2011:22). In addition, the live-tweeting of judgments, such as in R v Gittany in 2013, facilitates a more inclusive form of reporting that enables those outside the courtroom to directly engage with the proceedings in real time and with a sense of the tone and atmosphere of the ‘event’.

Substantive exposure to and direct contact with the criminal justice system have been identified as contributing factors in building public confidence. Jury service, in particular, has been found to be effective as, for many, it is their first direct and meaningful contact with the criminal justice system (Warner et al 2014:730). With television, tabloids and newspapers outranking personal experience as sources of knowledge about the criminal justice system (Gibson 2015:246), social media reporting from the courtroom has the potential to offer news consumers a more dynamic form of engagement that goes beyond simply relaying events to convey a sense of the process. Tweets range from alerting followers to verdicts or sentences, to directly quoting judges, counsel or witnesses, or providing commentary on proceedings or other peripheral occurrences in and around the courtroom. In 2015, for example, one court reporter made a point of highlighting the actions of a judge and barrister who removed their wigs in order to create a more comfortable environment for a child witness to give evidence. Such observations provide insight that is typically not available through traditional reporting. In addition, the immediacy of social media means that rulings on interlocutory matters, as well as the detail of evidence and judgments that might be later culled for brevity or perceived interest for an article format, can reach the public. In this way, public awareness of the nuance and minutiae that attach to criminal proceedings may be improved because, as Gibson (2015:246) notes, the absence of the public in courtrooms does not necessarily reflect lack of interest in or ambivalence towards the criminal justice process.

While live tweeting cannot replicate the experience of sitting in court or serving on a jury, there is a strong argument that such reporting can present a more accurate depiction of court processes than is available through traditional forms of media reportage, such as newspaper articles (Krawitz 2013:11). As such, these reports are likely to have a more educative effect than traditional reporting styles and thereby assist in improving public confidence in the criminal justice system. Public confidence is integral to encouraging participation and engagement with the criminal justice system and facilitating the efficient administration of justice (Warner et al 2014:738). Krawitz (2013:11) has argued that the use of social media by journalists in courtrooms will have a positive impact on public confidence by responding to and satisfying public interest in particularly high-profile matters and providing more complete and accurate representations of court proceedings while avoiding the delay and disruption caused by journalists regularly leaving the courtroom to relay updates to the newsroom. Thus, the use of social media allows journalists not only to facilitate open justice, but also to advance what courtroom reporting is able to achieve in terms of public engagement.

Key concerns and institutional responses

Despite the benefits new technologies may present in terms of open justice, many concerns have been identified about the implications of normalising social media usage in courtrooms (Barrett 2011; Krawitz 2013:4; Wallace and Johnston 2015). In particular, control over publication and oversight of content are two key issues that have caused some resistance. Here, the potential for social media to undermine the effectiveness of suppression orders and the varying approaches to the regulation of social media use in court will be discussed, highlighting the difficulties associated with the integration of social media with criminal courts.

In some circumstances the interests of justice necessitate the qualification of the open justice principle through measures such as suppression orders. Such situations are rare and are generally limited to exceptional cases where it would be impractical — not merely embarrassing or uncomfortable — for evidence to be given in public, or where ‘the paramount object of securing that justice is done would really be rendered doubtful of attainment’ (Scott v Scott at 437–9, 463). These orders are primarily imposed to limit the exposure of jurors to prejudicial material and to protect the identities of particular classes of participants, including children and sexual assault complainants (see Court Suppression and Non-Publication Orders Act 2010 (NSW) ss 78). Though the release of such information by means of gossip or media publication has been of judicial concern for centuries, Barrett (2011:3) and Barnfield (2011:16) have observed that social media presents an unprecedented threat to the integrity of court-imposed restrictions on information flow by diminishing the practical capacity to control publication. Traditional reporting practices allowed some ‘breathing space’ between courtroom events and publication, significantly minimising the risk that information presented in court and only later suppressed would have been published in the interim (Barnfield 2011:16; Gleeson 2013:55). The increasing popularity of live text feeds from courtrooms effectively removes this delay, creating a problem that is compounded by the potentially rapid spread of the material to a vast audience upon publication (Janoski-Haehlem 2011:44–5).

Various approaches have been taken in common law jurisdictions to manage publication of court proceedings on social media. One early example from New Zealand saw a District Court judge allow for the almost live-tweeting of a case by imposing a 10-minute delay on all reporting by traditional and social media from the courtroom (Police v Slater). Such an order represents a progressive understanding of the changing media landscape by reconciling expectations of contemporaneous reporting with the judge’s ability to control publication. Seemingly, too, such an approach seeks to establish a respectful working relationship between social media reporters and court practitioners, with the court respecting new reporting styles while providing a fair opportunity for parties to apply for material to be suppressed.

In 2011, the Lord Chief Justice of England and Wales published a Practice Guidance on the use of text-based communication from court that encompassed social media. This Guidance makes the paramount consideration a question of whether the use of live text-based services on any device would ‘interfere with the proper administration of justice’ (s 11). The traditionally privileged role of the media as a facilitator of open justice is maintained, with journalists and legal commentators vested with standing permission to use such technologies based on a presumption that these parties do not pose a threat to the integrity of court proceedings (s 10). Members of the public, however, are required to make either a formal or informal application for permission upon which their risk of interference with court proceedings will be individually assessed (s 10). At all times, the court reserves the right to suspend all live, text-based communication or limit such use to journalists only if such an order is deemed appropriate and necessary in the circumstances of the case (ss 14, 16). Importantly, though, the Guidance states that ‘the use of an unobtrusive, hand held, silent piece of modern equipment for the purposes of simultaneous reporting of proceedings ... is generally unlikely to interfere with the proper administration of justice’ (s 15). This represents a decisive embrace of social media in the criminal courtroom while reserving ultimate control over the publication of proceedings to the judge.

The approach in Australian jurisdictions has similarly been to maintain ultimate judicial discretion over the publication of information pertaining to proceedings. As Wallace and Johnston (2015) note, however, the starting point for most legislation in this area begins with blanket prohibitions on any use of electronic equipment to communicate from the courtroom and then proceeds to identify specific exemptions for particular classes of participants and spectators. Such an approach favours the protection of procedural integrity and undermines the principles of open justice by making access to information from the courtroom the exception rather than the rule.

The Australian jurisdiction that appears to be most in line with the 2011 UK Guidance is Victoria. Both the County Court and Supreme Court have issued guidelines permitting journalists to conduct social media reporting from the courtroom (VCC 2015; VSC 2015). Under these guidelines, journalists who frequent courts will be accredited to signify their understanding of court practices, procedures and restrictions such as suppression orders. These journalists will then have standing permission to use electronic devices and services such as Twitter to report proceedings subject to usual limitations on publication, including not reporting material that was not heard by the jury or any names or other details the subject of a non-publication order (VSC 2015:8; VCC 2015:3). Non-accredited journalists and members of the public must seek approval from the judge to engage in such activities. As with the UK Guidance, a core consideration is whether use of such devices and services will interfere with courtroom proceedings (VSC 2015:8; VCC 2015:3).

Wallace and Johnston (2015) note that among the five Australian jurisdictions that have taken steps to regulate social media usage in courtrooms (New South Wales, South Australia, Victoria, Queensland and Western Australia) there is a level of incoherence arising from the various mechanisms and approaches employed that has resulted in uncertainty about who is permitted to use new technologies.

The tension between promoting open justice and protecting procedural integrity is perhaps most prevalent in New South Wales, where s 9A of the Court Security Act 2005 (NSW) prohibits the transmission of sounds, images or information from courtrooms unless such transmissions are for specified purposes, such as video links or remote transcription, or have been expressly approved by a judicial officer. Under the associated regulations, however, journalists are exempt from this prohibition (Court Security Regulation 2011 (NSW) reg 6B). Interestingly, the definitions of ‘journalist’ and ‘media report’ contained in s 4 of the Court Security Act 2005 (NSW) have some scope for recognising new media actors by not restricting these terms to the traditional conception of professional journalism.

Open justice and procedural integrity: A new balance

As new technologies continue to shape the way in which news and other information is distributed and consumed, the use of social media as a reporting tool in courtrooms is likely to become increasingly commonplace. Similarly, a recognition appears to be dawning on courts that public use of social media to discuss criminal matters, sometimes as legitimate legal commentary and at other times in highly prejudicial terms, is inevitable (see Dupas v The Queen at 36). Currently, there is a paradox in the response of Australian jurisdictions to the use of social media in criminal courtrooms in the form of the general exclusion of ‘citizen journalists’ from the permissions that allow professional journalists to report those same court proceedings to them as citizens.

The potential benefits for open justice and improving public engagement with and confidence in the criminal justice system do not come without some risk. Preservation of procedural integrity is as important in terms of maintaining and improving public confidence and ensuring the fair and efficient administration of justice. A balance must be struck between facilitating the communication of information about criminal proceedings from courtrooms and ensuring that the legal protections established to minimise prejudice, protect witnesses and generally bolster procedural integrity are not undermined. The complexity of some criminal matters, along with the capacity for unforeseen issues to arise quite suddenly in the course of proceedings, makes the overriding judicial discretion exercised in relation to the use of electronic devices in court throughout Australia and the UK a necessity (Wallace and Johnston 2015). In order to support judges and ensure that proceedings do not become overburdened with applications to use and report via electronic devices, a standard accreditation process should be instituted across all Australian jurisdictions as a mechanism by which professionals and citizens with an interest in reporting court proceedings can attain such permission. Safeguards in the form of signage that explains the justifications for restrictions on free publication by all from the courtroom in court precincts, public announcements by courts and judicial reminders to gallery members may also be necessary to make such an approach effective.

Conclusion

The steady creep of social media towards omnipresence in modern life presents criminal courts with both opportunities and challenges that require further examination. Technological advances and the rise of social media platforms have the capacity to enhance open justice by providing an unprecedented level of public engagement through the adoption by traditional media organisations of social media as a reporting tool. In addition, citizen journalists can now communicate with a broad audience and there is even scope for direct engagement with Australian courts via their own Twitter accounts. Concerns about the practical capacity of judicial officers to maintain control over the publication of information about criminal proceedings, along with the risk of inaccurate or prejudicial publications, however, must also be considered. The tension between promoting open justice and protecting procedural integrity is one that each jurisdiction must grapple with as social media becomes ever more pervasive. The development and implementation of a uniform accreditation process and associated safeguards across all Australian jurisdictions will allow courts to harness the power of social media to engage and educate the public, thereby fostering greater public confidence through increased transparency and, ultimately, promoting open justice to the benefit of the criminal justice system as a whole.

Cases

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

Police v Slater (2010) (Unreported, District Court at Auckland, Harvey J, 14 September 2010)

R v Gittany [2013] NSWSC 1503 (14 October 2013)

Scott v Scott [1913] UKHL 2; [1913] AC 417

Legislation

Court Security Act 2005 (NSW)

Court Security Regulation 2011 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Courts and Other Legislation Further Amendment Act 2013 (NSW) (repealed)

References

Barnfield D (2011) ‘Effectiveness of Suppression Orders in the Face of Social Media’, Bulletin (Law Society of South Australia) 33(4), 16–19

Barrett J (2011) ‘Open Justice or Open Season? Developments in Judicial Engagement with Social Media’, Queensland University of Technology Law and Justice Journal 11, 1–8

Bartels L and Lee J (2013) ‘Jurors Using Social Media in Our Courts: Challenges and Responses’, Journal of Judicial Administration 23, 35–57

Bathurst T (2012) ‘Community Participation in Criminal Justice’, Bar News: The Journal of the New South Wales Bar Association Autumn, 45–50

Blackham A and Williams G (2013) ‘Australian Courts and Social Media’, Alternative Law Journal 38, 170–5

County Court of Victoria (‘VCC’) (2015), Guidelines for the Media (March 2015) <https://www.countycourt.vic.gov.au/sites/default/files/County%20Court%20Guidelines%20for%20the%20Media%20(10%20March%202015)_FINAL_0.pdf>

Doyle J and McNamara L (2011) ‘Social Media: What Role Should it Play in the Courts?’, Bulletin (Law Society of South Australia) 33(4), 22–3

Gibson J (2015) ‘Judges, Cyberspace and Social Media’, Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 12(2), 237–66

Gleeson C (2013) ‘Social Media and the Courts’, Bar News: The Journal of the NSW Bar Association Summer 2013–2014, 54–9

Janoski-Haehlen E (2011) ‘The Courts Are All a ‘Twitter’: The Implications of Social Media Use in the Courts’, Valparaiso University Law Review 46, 43–68

Keyzer P, Johnston J, Pearson M, Rodrick S and Wallace A (2013) ‘The Courts and Social Media: What do Judges and Court Workers Think?’, Judicial Officers Bulletin 25(6), 47–50

Krawitz M (2013) ‘Stop the Presses, But Not the Tweets: Why Australian Judicial Officials Should Permit Journalists to Use Social Media in the Courtroom’, Flinders Law Journal 15(1), 1–39

Lord Chief Justice of England and Wales, Practice Guidance — The Use of Live Text-Based Forms of Communication (Including Twitter) from Court for the Purpose of Fair and Accurate Reporting, 14 October 2011

Supreme Court of Victoria (‘SCV’) (2015), Media Policies and Practices <http://www.supremecourt.

vic.gov.au/home/going+to+court/for+the+media/media+policies+and+practices>

Wallace A and Johnston J (2015) ‘Tweeting from Court: New Guidelines for Modern Media’, Media and Arts Law Review 20(1), 15–32

Warner K, Davis J, Walter M and Spiranovic C (2014) ‘Are Judges Out of Touch?’, Current Issues in Criminal Justice 25(3), 729–44


[*] PhD candidate, Faculty of Law, University of New South Wales, The Law Building, UNSW Australia, Sydney NSW 2052, Australia. Email: l.findlay@unsw.edu.au.