On July 1st this year the NSW Government’s amendments to the NSW Court Security Act (2005) became effective as law. It is the Government’s first real attempt to come to terms with the growth of social media and its impact on the law.
Usually the law is very slow in catching up with what is happening in society. In many ways that is part of its traditional role. It has always been an institutionalised brake on too rapid a change affecting society generally and societal institutions in particular.
The media has historically played a critical role in the ‘open justice’ principle of the law. Its role has been the public’s eyes and ears in any court proceedings. Now that the mainstream media is in such financial and structural disarray that role has been compromised. ‘New media’ or ‘social media’ has started to fill the void left by the inability of the mainstream media to adequately and appropriately cover the courts.
It’s been deemed necessary for the law and its institutions to get its head around ‘new media’ and ‘social media’, or rather the technology that drives it.
There are a number of reports from research projects that have raised broad areas of concern about the growth and use of social media platforms and its impact on the courts and their ability to do their job without the administration of justice process being compromised.
A recent report prepared for the Victorian Department of Justice by a number of very well regarded academics looked at JURIES and SOCIAL MEDIA in particular.
An article in the current Judicial Officers’ Bulletin (Vol 25, Issue 6) gives details of the findings of the Judicial Commission of NSW’s first embryonic research project looking at the impact of and general concerns about the increasing use of social media in court.
To precis the precis of the report, which was delivered in February this year, it identified twenty areas of concern, laid out in descending degrees of importance.
The issues the participants identified, in ranked order, were:
1. Juror misuse of social media (and digital media) leading to aborted trials.
2. Sub judice issues/breach of suppression orders (by tweets, Facebook or other social media), that “go viral”, and the difficulties associated with enforcement of restraining orders.
3. Increased risk of cyber stalking/opportunities for invasion of privacy or intimidation/bullying of the private lives of court case participants, including victims, jurors, judges, workers.
4. Misrepresentation of court work and activity to a community that may not understand the processes or issues involved/rapid spread of misinformation about trial processes and courts.
5. Disclosure of information to witnesses or others waiting outside inside court.
6. Difficulty in testing authenticity and credibility of social media journalism/lack of verification of social media publications.
7. Need to educate judges, court staff, the public and media. Risk of disenfranchisement of people and institutions that do not use social media.
8. Using social media to communicate court decisions and engage with the community.
9. Improper recording of court proceedings, confidential matters, evidence.
10. Defamatory statements that “go viral” on social media, creating the spectre of increased litigation.
11. Using social media to enhance court procedure (eg service via Facebook).
12. The use of social media posts as relevant evidence.
13. Difficulty in ascertaining ownership of information
sources on social media.
14. Public expectation that courts will adopt social media
15. Impact of social media on court orders, including
orders relating to social media use, jury directions,
16. Social media can be distracting in court/potential for
disruption of court activity;
17. Whether to have central control of court
18. Need for information technology systems/staff to
support social media (lack of resources for social
19. Failure of courts to use social media affects timeliness
20. Locating the origins of the user/tweeter/contributor. (pp 48 & 49)
In an attempt to deal with some of the issues that have been causing concern for some time now and which are being identified in reports such as these, the NSW Government’s amendments to the NSW Court Security Act (2005) became effective on 1st July 2013.
It is the first real piece of legislation by this Government to regulate the use of social media in an attempt to nullify its impact on the ability of the courts to do their job properly, to safeguard the principle of the ‘administration of justice’ and how that process can remain untainted by the growth and impact of social media.
The new amendment, Section 9(A), is a prohibition on the ‘unauthorized transmission of court proceedings from the courtroom’.
“SECTION 9A. Prohibition on unauthorised transmission of court proceedings from courtroom
(1) A person must not use any device to transmit sounds or images (or both) from a room or other place where a court is sitting, or to transmit information that forms part of the proceedings of a court from a room or other place where that court is sitting, in any of the following ways:
(a) by transmitting the sounds, images or information to any person or place outside that room or other place,
(b) by posting entries containing the sounds, images or information on social media sites or any other website,
(c) by otherwise broadcasting or publishing the sounds, images or information by means of the Internet,
(d) by otherwise making the sounds, images or information accessible to any person outside that room or other place,
whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both).
Maximum penalty: 200 penalty units or imprisonment for 12 months (or both).”
Journalists, doing their job, for the purposes of a media report on the proceedings concerned, are exempt from these restrictions under Section 9B.
Journalists are defined under Section 4 of the Act as meaning a
‘… person engaged in the profession or practice of reporting, photographing, editing or recording for a media report of a news, current affairs, information or documentary character’,
and a media report is defined as being
‘… an article, program or other report for publication in or broadcast on any of the following:
(a) a newspaper, magazine, journal or other periodical,
(b) a radio or television broadcasting service,
(c) an electronic service (including a service provided by the Internet) that is similar to a newspaper, magazine, radio broadcast or television broadcast’.
This amendment has primarily resulted from jurors, witnesses and others texting, ‘facebooking’ or tweeting evidence and other information to those outside of the courtroom. This is a serious problem worthy of concern as it poses a very real threat to the process, which needs to remain untainted if a fair trial is to be achieved.
My obvious concern with the new amendment is the possibility to silence the “mummy bloggers” and “citizen journalists”, which is fast becoming a pejorative, from reporting on court cases. It all gets down to the definition of ‘properly accredited’ journalists.
The last six words of Section 9A(1)(d) “… whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both).” are words that leave open to apply these new restrictions to bloggers or citizen journalists who report or comment on the case and aren’t deemed to be accredited journalists.
In the Judicial Officers’ Bulletin article the report touches on bloggers, citizen journalists and the members of the mainstream media. There are assumptions made in the following paragraph that amused, especially the assumed knowledge of legal matters, and the level of support supposedly still given to accredited journalists covering a legal matter; such knowledge and support being unavailable to the citizen journalist.
“Information that has been suppressed by a court ‘going viral’ via social media
… At common law, sub judice contempt enabled the punishment of people who published material that had a real and definite tendency to prejudice the administration of justice in a pending proceeding. Parliament has also provided that the courts may make a non-publication order directed at preventing prejudicial material from being published at this time at any time during proceedings.
Social media present new challenges to these traditional approaches. Social media empower anyone to be a publisher. “Citizen journalists” — people formerly known as the audience who can now employ press tools to inform each other — tend not have any professional training in journalism or the law; it is unlikely that they would be aware of the law of sub judice contempt, defamation and other restrictions on freedom of speech.In addition, in a professional media system, checking takes place at multiple levels, by sub-editors, production editors and lawyers. In contrast, ‘citizen journalists’ do not have their work verified and are less likely to appreciate the legal constraints involved. Indeed, they may be unaware of the existence of these rules, believing instead that Australians enjoy free speech to say whatever they like about anything or anybody at any time. The rules of contempt are not exerting the chilling effect on speech that was traditionally regarded as necessary to ensure the due administration of justice” (pp49-50)
“Difficulty in testing the authenticity and
credibility of journalists using social media
The sixth issue centred on concerns that journalists using social media (when contrasted to journalists in the mainstream or “legacy” media) lacked credibility. With the rise of “citizen journalists” not everyone who reports on courts will be trained and experienced in this field.” (p. 50)
The judiciary and lawyers have long complained, often loudly and despairingly, about the standard of court reporting in the mainstream media. Their complaints include journalists who don’t seem to have even the most basic understanding of how the justice system is structured, what its overall role is, what functions it performs, the limitations on journalists when a court is in session, the role court officials play, a basic understanding of the difference between civil and criminal cases, and between common and statutory law.
Sometimes it just may be the “citizen journalist” or the “blogger” who is better qualified to report and comment on legal matters. Long gone are the days when specialist journalists like Pamela Bornhorst for the ABC and Jennifer Falvey sat in a courtroom all day, every day for weeks covering the one case. These journalists were highly respected within legal circles for knowing their job and doing it well.
The NSW Court Security Act (2005) amendments and reports as outlined in the Judicial Officers’ Bulletin may be the first salvo in the genuine diminution of the principle of ‘open justice’. The concerns of the judiciary are understandable. But the arguments being used and the overall thinking is concentrated against the new technology rather than the underlying lack of knowledge of or understanding in the law by those outside the law especially the media when it comes to its role of reporting court proceedings. The concerns expressed by those in the law about social media are so similar to those arguments used when the Gutenberg printing press appeared on-line in Europe in 1450. It was going to be the end of the world.
With this new technology the problem, ensuring the untainted administration of justice, is the same problem it has always been; the problem hasn’t changed and suddenly morphed into something new. What has changed is the instant and far-reaching means of delivery.
The system shouldn’t be distracted by or only focus on the new technology. The courts have always had the capacity to take action to prevent and/or penalize behaviour that threatens the justice system from doing its job.
Suppression orders are preventative measures, and then there is a plethora of contempt laws, from scandalizing the court to contempt sub-judice that can be used. In recent times, the judiciary has rarely resorted to using the contempt measures. Suppression orders and contempt laws are still the first and only real line of defence from the attacks on the justice process.
The judiciary needs to enforce the existing measures when suppression orders aren’t met or contempt behavior threatens the court’s ability to do its job.
Governments and the legal system need now to consider educational procedures for jurors, witnesses or those who report on legal matters, whether they are journalists or citizen bloggers. The ability of the courts to comment on, as well as insist on rectification when regulations and rules are breached, should be enhanced and pursued.
Underpinning and strengthening the ‘administration of justice’ needs to be done, but not by dismantling the fundamentals contained in the principle of ‘open justice.’ A balance between the two is essential for a healthy democracy.