LEGAL OPINION:IN FEBRUARY, a UK High Court judge allowed service of a document via Facebook in circumstances where it was proving difficult to locate a party. This was replicated soon afterwards in this jurisdiction, bringing into sharp focus the advantages and challenges posed by modern media for the courts.
The old certainties of traditional media are gone. Once something is “out there” via social media, it remains so for ever. A 2010 survey of state and magistrates’ courts in the US found one third of courts used social media as a means of communicating. Half said they felt judges participating in social media in a professional capacity might compromise their ethical standards. A balance now needs to be struck between the need for open courts and maintaining fair trials.
The ongoing challenges in the economic environment, reduced readership and changes in the operations of traditional print media put at risk the courts’ reliance on them to connect to the public. There has been a real change in how the public now receives information.
The central problem would seem to be that courts are institutional and focused in direction, whilst new media are decentralised and multidirectional – at times all over the place. Courts can be very cloistered in maintaining their independence, whereas new media is personal and intimate. Courts are also text-based, while new media avail of images, sound and video.
Live “tweeting” is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet, a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK, guidelines effectively limit the use of Twitter to accredited media, who apply to use it and who are familiar with the court process and the consequences of endangering it. It can only be a matter of time before we face an issue here for rules of court in this area.
A bigger problem lies in how to treat use of social media by jurors during trials. Judges must be ever-vigilant of outside influences on jurors. Much of “new and social media” have no history, conventions or appreciation of laws of court and contempt. It is the “Wild West” of the communications community, with infinite amounts of at-times uncurated, unmoderated and unedited “information” put out there regarding every subject and person. It in effect allows everyone to “broadcast” almost instantaneously.
Social media can turn up tons of information – accurate, inaccurate, libellous or complimentary – on potential jurors, witnesses, defendants, legal teams and judges.
Twitter invites users to effectively tell everybody what they are doing. Its users tend to want to feel connected to many, they like exchanging information when it is new, and they want to learn about people. There are 350 billion “tweets” every day.
Jurors’ tweets can include information on the progress of cases. Such use can be a threat to a system where decisions are made after evidence and argument is heard in court, and not under outside influence – either by way of private chat or public discourse.
Social media is also challenging the concept that jurors only discuss cases during deliberations – when they are all together. Examples of flagrant abuse of this exist, including the appearance of disparaging remarks about other jurors on social media sites and jurors “friending” each other on Facebook, trying to “friend” counsel for either side and even “friending” defendants in cases they were serving on.
As well as issuing guidelines, efforts at corralling the use of social media during trials include banning such technology in courts, using the threat of contempt proceedings, asking jurors to sign written pledges on social media use, using statements of compliance in not using social media about the trial and not conducting online or other research about the case or the defendants, and reporting other jurors who do so. A UK juror who conducted and shared online research on a defendant was subsequently jailed.
Some 140 former jurors who had received social media instructions were interviewed in an attitudinal survey in the US. Only six reported they had even been tempted to misuse social media after the advice from the judge. None actually did. Those not even tempted said the judge’s instructions not to do so were the important factor.
It would therefore seem that judicial instruction – at various times in the proceedings and specifically about named sites and activities online – firmly mitigates the risks of juror misconduct on social media. It would also suggest it negates the need for a technology ban in courts.
It is also important to emphasise the fair trial element of the instruction, as jurors may have a sense of giving up a personal freedom when asked not to communicate.
Gerry Curran is the Courts Service media relations adviser. A fuller version of this article appears on courts.ie/publications