Judges, cyberspace and social media[1]

Her Honour Judge J Gibson[2]

Social media has become an integral part of electronic legal research, as well as influencing court communication and judicial courtroom control. This paper provides a background to this vast topic. The author first describes the types of social media now available, and focuses on those that are most likely to be encountered by judicial officers. She considers how courts reconcile the principles of open justice with social media use; the impact of using (or not using) social media on the role and standing of judges, and on legal research, reports and judgment writing; and how social media will affect the law.


How did we obtain information and keep in touch before the internet and social media? Nearly all of the traditional methods — the address book, postcard, phone book, encyclopedia — have been replaced by social media networking and electronic publishing.

That’s the easy part. The problem is that social media methods have now become an integral part of electronic legal research, as well as influencing court communication and courtroom control by the judge.

The discussion below provides some general background to this vast topic.[3] It then covers three areas:


How should courts reconcile the principles of open justice with social media use? How should judges respond to requests by journalists (including so-called “citizen journalists”) to “tweet” from the courtroom, or to jurors who have been “friending” each other on Facebook? Are existing legislative provisions sufficient to prevent a trial miscarrying when publication on social media can occur not only instantaneously, but internationally?


How does social media impact on judicial dignity? Will the public remain respectful if they can find out what judges “like” on Facebook, or Tweet, or post on Tumblr? Will they be critical of judges who don’t understand how this “newfangled” technology works?[4]


How can social media help courts communicate with the public? Is social media useful for legal research? How does it impact on courtroom procedure? Most importantly, how is it changing the law?

Defining the internet and social media

In 1995 Bill Gates described the internet as a “tidal wave”,[5] a useful analogy, as controlling it is “like Canute bidding an electronic tide”.[6] The internet’s impact on long-established principles of law has been more temperately described as “unsettling”,[7] principally because it connects individuals and institutions cheaply, and without sensitivity to distance. Additionally, its international nature challenges traditional notions of jurisdiction; the potential to share and alter images introduces novel ideas of ownership and control; and its potential for misuse (for example, trolling or bullying through social media) challenges how we deal with freedom of expression.

What, exactly, is the internet? The “internet” has been defined by the US Supreme Court as “an international network of interconnected computers”[8] situated in “a unique medium — known to its users as ‘cyberspace’ — located in no particular geographical location but available to everyone, anywhere in the world”.[9] “Cyberlaw” is defined in Black’s law dictionary[10] as the field of law “dealing with the internet, encompassing cases, statutes, regulations, and disputes that affect people and businesses interacting through computers”.

The internet’s history is very recent. The world wide web was created in 1989 by Sir Tim Berners-Lee, and was made available to the public by the European Organization for Nuclear Research (his employer) in 1993. The first international conference on the world wide web, 25 May 1994, is generally regarded as the internet’s starting date. Its initial use was for trade and commerce by AuctionWeb (later rebranded as eBay) and stores such as Amazon. Netscape Navigator permitted wider access through its search functions, and use grew exponentially in most countries. For example, by 2012–2013, 7.3 million (83%) of Australian households had home access to the internet, and more than 77% via a broadband connection.[11]

“Internet” is one of the many new words and phrases coined to describe electronic communication. Some of these words, such as “spam” and “cloud computing”, are now in common usage, but others (such as the “internet of Things”,[12] referring to the connectivity of devices in cyberspace) are not. Internet dictionaries such as Urban Dictionary[13] are a helpful resource.

Types of social media

“Social media” is an umbrella term for virtual networks or communities created by internet-based applications which share many similarities with traditional website publications, but generally offer more secure, instantaneous and interactive information or data sharing. These include:

  • Social networking sites, such as Facebook, currently the most readily recognisable form of social media. In 2004, Mark Zuckerberg launched “thefacebook” as a social networking site for students at his university. Renamed “Facebook”, it opened its site to outside users in 2006, the same year that the smartphone came onto the market.[14] In 2021, Facebook had 2.853 billion users worldwide,[15] with users accessing their accounts using smartphones, iPads and computers. Suddenly, social media could be accessed anywhere, at any time (except in certain countries such as China, where outside sites such as Facebook are banned and internal social media sites restricted[16] — nevertheless, over 1,000 Chinese courts have microblog accounts[17] and social media is widely used by lawyers[18]).

  • Blogs and Microblogs, such as Twitter, set up in 2006.[19] This includes ratings blogs, such as TripAdvisor.[20]

  • Shared video and other visual material, such as YouTube. “Tube” is French for “video clip”. Many of the first YouTube posts were musical, and Psy’s “Gangnam Style” clip (viewed more than 2 billion times) was the most watched in YouTube history.[21] YouTube also contains televised lectures, legal resources such as court information videos[22] and adult education courses.

  • Email and networking sites. Hotmail (set up in 1996)[23] and Yahoo were pure email sites, but networking social media is now also available. Social media networking sites such as LinkedIn require users to have an email address and promote professional information exchange. Gmail dominates this market.

  • Although not strictly speaking a social media site, eBay and other online auction or sale websites provide opportunities for information forums, blogs, emails and other means of communication through anonymised user names. This includes the ability to use Paypal, the world’s first cyber bank.

  • Chat-based or information sites like Reddit, photograph and image exchanges such as Instagram, Pinterest, Tumblr and other sites, most of which are iPhone- or iPad-based, as is Skype, a visual telephone link.

  • Group chat programs and mainstream instant messaging services. One of the first was ICQ (launched in 1996).[24] Facebook Messenger is the best known. Others include Whatsapp or Line. While some merely use the internet to chat, others use it for live streaming from concerts, radio podcasts and music downloads. Music downloads are now dominated by Apple’s iTunes, launched on April 28, 2003 with just 200,000 songs; by 2011, it was offering 20 million. By 2013 it had sold 25 billion songs, in April 2020, iTunes offered 60 million songs.[25]

  • Collaborative research projects such as Wikipedia, established in 2001 and effectively replacing Encyclopedia Britannica.[26] WikiLeaks, the name given to the site containing leaked documents set up by Julian Assange, is unrelated.

  • Virtual game worlds, social worlds and games.[27]

The social media platforms principally referred to in this paper are the first two items in this list, as they are the forms of social media most likely to be encountered by judges in the course of legal argument, court control and communication, and legal research. The shift away from reliance on authorised law reports and newspaper summaries (such as the Times Law Reports) to the use of electronically searchable online judgment databases, and the use of social media for legal research, have changed both the preparation and conduct of court proceedings.

Social media and the judicial process

Social media at first seemed to be just another way to contact family and friends through Facebook, or for sharing holiday and cat photographs.[28] However, methods of personal communication available through social media, particularly Twitter, have increasingly become research and information sharing tools. For example, the Supreme Court of NSW, following the lead of overseas courts and the Supreme Court of Victoria, set up its own Twitter site in 2013.[29]

When social media was still a novelty, concerns were raised about judges expressing opinions and providing personal information in a way that could become public and thus threaten the impartiality of the trial process.[30] What impression would it convey if a prosecutor or a witness was a judge’s Facebook friend? Was a Facebook friend like a real friend, or was it something different? In some cases, the danger was obvious. For example, in North Carolina,[31] a presiding judge (District Court Judge, B Carlton Terry Jr) was reprimanded after he heard a child custody dispute and befriended the father’s lawyer on Facebook, and they discussed the case on their respective Facebook accounts. Nevertheless, social media is now such a fundamental part of daily communication that its use by judges cannot simply be prohibited, as was the early response from courts.[32]

Electronic searching on online judgment databases is a quicker and more accurate way to access judgments, and the availability of judgments online also allows access to judgments on social media sites, particularly Twitter. Prior to 2006, when District Court judgments were first placed online, judgments were generally only available to the parties.[33] With the advent of social media, however, any judgment can be scanned and reproduced, or linked to, in a law blog, academic e-journal, law firm e-newsletter or Twitter feed.

The days when trial judges were writing privately for the parties (or perhaps for the Court of Appeal) are vanishing. Social media is replacing traditional research and analysis methods, such as law reports and academic analysis of judicial decisions, by instantaneous and potentially worldwide communication, which can bypass not only authorised reports,[34] but even electronically-based sites like Caselaw. Law blogs such as the Gazette of Law & Journalism in Inforrm[35] regularly publish not only their discussions of these decisions, but the online copies of the judgments as well. Similarly, the actual words spoken by a sentencing judge may be accessed via a court Twitter feed,[36] or the key points in a lengthy trial or inquiry tweeted in live feeds to an electronic (or print) newspaper by the journalist sitting in the courtroom. The result is that traditional methods of publication of a judgment — only the most important judgments, in authorised reports, with headnotes, months later — have been replaced by a system which can publish a judgment internationally, instantaneously, and for free. Judges no longer have an option about not publishing a judgment, because anyone who obtains a copy can make it public. The public can, in some circumstances, watch part or all of a trial on television; for example, the UK Supreme Court has its own Twitter account and telecasts proceedings on its own website.[37]

The speed of these changing methods of communication can be demonstrated by comparing them to the date for electronic publication of judgments on Caselaw. The internet celebrated its 20th birthday, and the Supreme Court commenced publishing judgments online in 1999. However, Twitter was only set up in 2006, the same year the District Court of NSW commenced publishing a limited number of its judgments online.[38] The Victorian Supreme Court and NSW Supreme Court Twitter accounts now regularly publish not only their judgments, but also (in the Victorian Supreme Court) links to sentences handed down orally, open days at the court and other topics of legal interest.

The immediacy of Twitter makes it an important tool for journalists seeking to cover long and complex trials or inquiries. Twitter changed journalism,[39] and media court reporting has been enhanced as a result. Two examples demonstrate this: the coverage of Independent Commission against Corruption (ICAC) inquiries by Kate McClymont in Sydney,[40] and daily reporting of the lengthy “phone hacking trial” in the UK both by mainstream journalists and by “citizen journalists” writing for private blog sites.[41] Ms McClymont, whose coverage of the ICAC inquiry resulted in a Walkley Award in 2013, provided a daily Twitter feed while sitting in court. It was probably the most widely read piece of journalism in Australia for some time. Ms McClymont is well aware of the potential for problems arising from Twitter use in the courtroom:[42]

There are witness [sic] who are sitting outside who aren’t meant to know what evidence is being given. Is this going to have an impact on the course of justice by tweeting the minutiae of what is happening in [sic] within the courtroom? It’s an interesting consideration.

How such issues should be addressed was the subject of changing judicial views during the Assange hearings.[43]

Unlike more traditional news methods, where there is a delay in preparing the full story and a degree of filtering or “spin” both by the media and the persons involved, the raw story of ICAC inquiry developments, such as the evidence leading to the resignation of the NSW Premier, became immediately known because this information was immediately spread by social media. When traditional news sources delayed in reporting the finding of 800 children’s bodies at a former children’s home in Ireland, the story appeared on social media.[44] These changes to the dynamics of the news cycle, and to journalists’ use of social media in court, impact upon traditional concepts of “open justice”.

How can “open justice” accommodate social media?

“Open justice” is justice being seen to be done.[45] In John Fairfax v District Court of NSW,[46] Spigelman CJ described open justice as “one of the most fundamental aspects of the system of justice in Australia”.[47] During the 19th century, interest in all trials was so great that courtrooms were larger and the seats for members of the public frequently filled, as court illustrations from newspapers of the day demonstrate. From the early 20th century, as court architecture demonstrates, the number of public visitors to courts has dropped significantly.[48] These days, the “presence” of the public means the presence of the media[49] (and what Leslie J Moran calls the “citizen journalist”).[50]

The traditional image of the court literally being “open”, in the form of a gallery of members of the public listening to the trial, has long vanished, other than for the occasional sensational murder or corruption inquiry.

Instead of gaining information about our legal system by sitting in the back row of the court, most people now learn about the legal system from the mass media. A 2003 survey showed that “personal experience” came below television, newspapers and tabloids as a source of knowledge about the criminal justice system.[51] The fact that they are not in court does not mean, however, that the public has lost interest in the legal system; if anything, they want more information. The real change lies in the increasing use of blogs and electronic law journals to obtain this information; some blogs now highly respected as a source of information, not only for lawyers, but for judges writing their judgments. Justice Applegarth[52] recently paid tribute to the trial reports and research resources of the Gazette of Law and Journalism, set up by Richard Ackland nearly 30 years ago, and the most reliable and respected site for defamation trial reports, interviews and information about new litigation.

Long before social media was invented, the High Court of Australia emphasised the interdependent nature of the media and the judicial system. In R v Tait and Bartley,[53] Brennan, Deane and Gallop JJ stressed the importance of the media, not only in informing members of the public of the result of cases, but also of the logic and principles that judicial officers use in their decisions. What the media does is to provide the legal system with the means by which justice is not only done but seen to be done.[54]

An important part of the open justice principle is the entitlement of journalists to attend, and report upon, court proceedings.[55] The use of social media in the courtroom has been a vital reason why the otherwise declining role of the newspaper as a source for information has been arrested. Journalistic training and research skills are necessary for the journalist to be able to record accurately what is said and to understand the important developments in a case. A journalist who misunderstood an important link in the evidence of, for example, the inquiry currently before the ICAC Commissioner, would quickly be exposed as being incompetent or ill-informed. The key to the success of Kate McClymont’s court reporting is her remarkable journalistic skills, just as much as the immediacy of the tweets. The roundsman’s two-minute summary on the evening news broadcast cannot compete. It is understandable, in those circumstances, why skilled journalists continue the use of social media, and especially Twitter, to report from the courtroom, as no other media platform can compete with this kind of instantaneous skilled reporting.

The imposition of a sentence designed to deter others from committing a similar crime really only works if the public is aware of the reasoning behind the sentence.[56] Information about sentencing patterns, actual sentences and remarks on sentence, if accessible to the general public, can make this form of information not only more widely available, but more accurately known. Judges have complained about the inaccurate news commentary about sentencing in the past.[57] More public information about the sentencing process, such as the Victorian Supreme Court’s release of audio criminal sentences on Twitter, may contribute to accurate reporting and greater understanding.

Social media in the courtroom

The second area in which there is interaction between journalists and the courts arises from the role of court officials in providing information (such as summaries of cases, press releases or actual judgments) to journalists. This is generally unexceptionable; most Australian courts now have a media or public information officer.[58] However, occasionally journalists want more and rulings are sought from the judge as to whether additional material such as the pleadings, counsels’ submissions, exhibits or affidavits should be provided, and an application is made to the court for such material.

Whether the request to the judge is for permission to tweet from the courtroom, or an application for documents, the first step is to consider the amendments to the Court Security Act 2005 (NSW), which is the State Government’s first real attempt to regulate social media in relation to the administration of justice.

Section 9A of the Act contains a prohibition of unauthorised transmission from the courtroom as follows:


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:


by transmitting the sounds, images or information to any person or place outside that room or other place,


by posting entries containing the sounds, images or information on social media sites or any other website,


by otherwise broadcasting or publishing the sounds, images or information by means of the Internet,


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).


Subsection (1) does not apply to any of the following:


a device being used for a purpose other than a purpose referred to in subsection (1),


the transmission of sounds, images or information by an audio link, audio visual link, closed-circuit link or other technology that enables communication between the room or other place where the court is sitting and another place and that has been expressly permitted by a judicial officer,


any other transmission of sounds, images or information that has been expressly approved by a judicial officer,


the transmission of sounds, images or information for the purpose of transcribing court proceedings for the court at a place outside the room or other place where the court is sitting,


the use by a prosecutor of a tablet computer or other similar device to transmit sounds, images or information only to another prosecutor who either is not a witness in the relevant court proceedings or, if he or she is such a witness, who has already given evidence in those proceedings,


the transmission of sounds, images or information in any circumstances that may be prescribed by the regulations.

“Journalist” is defined in s 4 as follows:

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.

A “media report” is also defined as follows:

an article, program or other report for publication in or broadcast on any of the following:


a newspaper, magazine, journal or other periodical,


a radio or television broadcasting service,


an electronic service (including a service provided by the Internet) that is similar to a newspaper, magazine, radio broadcast or television broadcast.

These amendments, which primarily resulted from informal or non-professional postings on social media, are helpfully discussed by Joan Evatt in her article, “Bloggers beware: law uneasy about citizen journalists and court reporting”.[59]

The first step that the judge will have to take is to determine the status of the person seeking authorisation. Is that person, in fact, a journalist? This is not an easy question to determine. For example, Joan Evatt would be more qualified than most professional journalists to report on court proceedings, and it seems unfair that a person of her considerable abilities should be relegated to the role of “citizen journalist”.

The second question is what judges should do when confronted with a request for more than just a judgment, namely a request for pleadings, counsel’s submissions, exhibits or affidavits.

Exceptions to the “open justice” principle

Justice Kirby explained the exceptions to the rule in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of NSW,[60] adding:

The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally (as by frightening off blackmail victims or informers) or would derogate from even more urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.

These observations were made before the internet came into common use. Additional problems arise in relation to the provisions of documentation to journalists, particularly if social media publication is involved.

Open justice and the request for documents by journalists

Journalists who ask for court documents, submissions, pleadings or other material may be intending to disseminate them on social media. The current procedures for access by the media to court-related documents in Australian jurisdictions differ, but all have one thing in common: they do not provide for use of documents on social media sites.[61]

In NSW these procedures are set out in the following practice notes and court rules:

Different approaches may be taken in different courts, because of differences in these rules.[62] Applications in the Federal Court are generally brought under the Federal Court Rules 2011 (Cth), r 2.32, and different rules again apply in other States and Territories. These rules may require review, in part because judges need to exercise caution to ensure that these documents do not end up being available on social media, and in part because of the inconsistency between jurisdictions.[63] The growing importance of confidentiality and/or privacy issues is another relevant factor.

Judicial reputation and social media

Judges and courts should not underestimate the challenges to the administration of justice due to the increasing power of public opinion, in which social media plays such a vital role. The cost, efficiency and transparency of the justice system are under challenge. Social media has lowered the barriers to entry in the marketplace of ideas, as now anyone can be a publisher (or, as the saying goes, “everyone’s a critic”).

Judges in the common law system face challenges from two main sources. The first is the increasingly powerful pressure on the common law system from others within the legal profession, as well as governments and proponents of the less expensive continental/civil law system.[64] There can be no better illustration of the degree to which the common law system is under attack than the recent speech of the Lord Chief Justice of England and Wales, Lord Thomas, acknowledging that the failures of the common law system mean that the advent of the continental law system seems inevitable.[65] These views are able to achieve wider dissemination through the informality of social media. The impact upon the doctrine of precedent caused by the immediate availability of all judgments (as opposed to slow-release of only leading judgments at appellate level, published in authorised reports) is another potential area for change.[66]

The second source of complaint, once restricted to the occasional letter to the editor, but now one of the mainstays of social media and blogsites, is the claim (to quote a 26 March 2014 article by Louise Hall in the Sydney Morning Herald)[67] that judges are “out of touch” with the modern world. Concern about this perception led the Supreme Court of NSW and the former NSW Attorney-General, the Honourable Greg Smith MLA, to set in place a series of proposals to ensure judges are communicating effectively with the public, such as the introduction of televised proceedings in certain circumstances, juror surveys and a public forum. The lack of familiarity judges have with social media and electronic publishing is seen as one of the proofs of this, as one columnist in The Telegraph pointed out.[68] Academics[69] and judges[70] have contributed to discussion of the need for judges to be in touch with the community, and as one of the main purposes of social media is community interaction, judges need to consider what their role in social media should be.

What impact will these negative perceptions, and the courts’ response to them, have upon the role of the judge?

  • Judges may have to respond to criticisms that judges are out of touch in the kind of public debate foreshadowed by Bathurst CJ in Louise Hall’s article.

  • Judges will be expected not only to know about, but also to be able to use, social media. Personal use is the main area of difficulty, in terms of the potential for attracting criticism of what a judge says or does in his or her personal capacity. The American Bar Association Formal Opinion 462[71] and the guidelines issued by Lord Justice Neuberger and the Australasian Institute of Judicial Administration (AIJA)[72] accept the use of social media by judges for private purposes, although with strong warnings about expressing views on current litigation. Social media preserves in aspic those informal, transient, off-colour remarks that are part of daily life for everyone. The current very low barrier for bringing an apprehended bias application[73] means that the courts are at risk of an increasing number of applications for recusal, a tendency already noticeable in the increasing number of applications for recusal (on unrelated bases) around Australian courts, as a search of Barnet Jade[74] for “recuse” will demonstrate.

  • Judges will have to use social media and technology as part of their work (for example, call witnesses to give evidence by audio visual link (AVL), or deal with e-discovery).[75] They will need to understand enough of the workings of social media to deal with submissions about this, whether it is the issue of the tender of Facebook entries to show that a plaintiff is not as badly injured as alleged, or a submission as to the nature of publication on the internet and the liability of internet service providers for social media publications. For example, a man who had posted nude photographs of his former girlfriend to her Facebook page and had locked the account so that she was unable to delete them was charged with publishing indecent images under s 578C of the Crimes Act 1900. Understanding the technology would be important for determining the seriousness of the offence (in this case, the defendant pleaded guilty and was sentenced to a suspended six-month jail term).[76]

  • Social media has lowered the barriers to entry for publishers — a blogged or scanned judgment can now become as publicly available as the most widely read authorised report.

The courtroom of the future may well consist of iPad-waving barristers, e-discovery on closed-circuit television, witnesses on Skype, solicitors electronically in touch with their offices and journalists tweeting a live feed to electronic blogs and newspapers. Although judges ask parties to turn off their mobile phones and warn jurors not to use the internet, courts are still in the process of developing an overarching policy about cyberlaw issues generally. A consistent Australia-wide approach and consideration of judicial education issues would be helpful — as would appropriate technology resources to enable their use.[77] Changes to research and judgment writing, however, may go even further. I will briefly summarise what some of these changes may be.

Impact of social media on legal research, reports and judgment writing

Legal publishers are struggling to keep up with the influx of freely available academic comment which is competing with the expensive loose-leaf practices and authorised reports series that have dominated the legal research market over the past century. Some echoes of this battle can be seen in Lindsay J’s paper for the 2013 Australian Law Libraries Association Annual Conference on the future of authorised reports.[78] Justice Lindsay states that the concept of authorised reports has been “radically challenged”,[79] that practitioners and the public alike have been swamped by unreported judgments, and that the answer is to set up a national website for “authoritative”[80] statements of the law, as opposed to statements of the law by inferior courts or tribunals which may contain errors. His Honour considers some form of authorised reports ought to exist alongside the court websites, presumably so that there is some method of supervision of the accuracy of case law.

Bailii was revolutionary in the UK because for many years unreported judgments could only be obtained by paying the private court reporting services (such as Smith Bernal) that provided them. These unreported judgments included appeal judgments in both criminal and civil courts. Austlii’s provision of unreported judgments has long put Australia in the lead internationally for court reporting.

One of the proposals is that cases of lesser importance would not appear on the website, but simply be summarised, as occurred for many years in the Times Law Reports. The Times Law Reports certainly filled an important gap in court reporting at the time, but this gap is now no longer in existence, thanks to e-journals and blogs which not only comment upon, but also provide a link to, the actual judgment.

These proposals to restrict publication of judgments have been made too late. The principal argument for restriction, namely the flood of legal information requiring a controlling hand, does not take into account the manner in which judgments are now read, namely by use of the search function rather than by reading a judgment headnote. Restricting access to judgments is the kind of response that members of the public might misread as evidence that judges are out of touch with community concerns about transparency and open justice.

A more fruitful area for consideration by the courts could be the impact upon the doctrine of stare decisis of the loss of position of authorised reports resulting from free electronic publishing. The shrinking pool of precedent law (the “vanishing trial”[81] phenomenon), the impact of interstate appellate judgments and the increasing reliance of legislation could be additional relevant factors.

The difficulties in which legal publishers now find themselves function as a reminder to courts and to judges that changes to the law caused by electronic publication and social media should be dealt with sooner rather than later.

What changes will social media make to the law?

What are some of the areas of the law most likely to require knowledge of social media-related issues? In their February 2013 survey of judges (the survey) (a summary of which was published in the Judicial Officers’ Bulletin),[82] Professor Keyzer and his colleagues identified the challenges posed by social media to the law, courtroom procedure and judicial status which were of most concern to participants. The participants included judges and court media liaison officers from around Australia. Some of their concerns are considered below, along with others which were not reported in the survey findings.

Increase in apprehended bias applications

The bar for determining apprehended bias is very low.[83] If judges’ social or professional activities can be accessed through social media, as has occurred in the US, this seems fertile ground for such applications. Surprisingly, this issue was not on the list of concerns of the judges who participated in the survey.[84] Such applications are on the increase; a search of the word “recuse” on Barnet Jade showed that one quarter of all judgments referring to this word had been handed down in the last 12 months.[85]

Contempt of court

Aborted trials, publication in breach of court orders and pre-trial publicity issues were a major concern for the judicial officers participating in the survey. For a recent case of contempt which involved comments posted on Twitter, see R v Hinch.[86] The ease with which alleged pedophiles can be named on social media is to be contrasted with other types of media which have censoring facilities. For example, radio’s “dump button” or the editorial discretion which can be exercised when a television program is pre-recorded.

Criminal procedure issues

Where members of the media seek access to material such as a record of interview, or photographs of the crime scene, applications may include requests for such items to be made available on social media. In Ex p Western Australian Newspapers Ltd & Channel 7 Perth Pty Ltd,[87] Staude DCJ (refusing the application) warned:[88]

If the order sought were made in this and similar cases, lawyers would be bound to advise their clients that as a possible consequence of participation in an interview the recording of it may be broadcast and posted on an internet site. Police officers acting properly in their role as investigators would also feel an obligation to warn of this particular risk, lest they be accused of misleading a suspect as to the use to which an audiovisual recording of interview may be put.

The submission made on behalf of the applicants is that s 122 [Criminal Investigation Act 2006 (WA)] applications are so rare that suspects are not likely to be deterred from participating in interviews by the risk of eventual publication. Yet it is also the applicants’ submission that as a matter of principle they should have access to this type of evidence in every case for the purpose of fair and accurate reporting. The applicants do not contend that this case is special or unusual. The logical consequence of the applicants’ submission is that media release of police interviews should be routine. The authorities to which I have referred do not support that proposition.

The court is also of the view, having regard to the subject matter, scope and purpose of pt 11 [Criminal Investigation Act] as a whole, that the privacy of the participants is a relevant and pertinent consideration. While it is proposed that publication on social media be prohibited, it is unreasonable in my view to expect that that order would guarantee any protection to Mr Newman, or the interviewing officers for that matter, from potential abuse of the recording. This is yet another countervailing consideration.

What happens when a person is identified because of their Facebook picture? Identification and social media are discussed at length in Strauss v Police.[89] (The conviction based on Facebook evidence was quashed, but for a number of reasons unrelated to the use of social media). See also Peterson v R,[90] where it was held that the trial judge’s ruling refusing to exclude Facebook identification evidence was not attended by doubt,[91] and the reliability of the identification was “pre-eminently a jury question”.[92]

Defamation, misleading and deceptive conduct, intellectual property issues

The risk of defamatory publications going “viral” was a particular concern expressed by those participating in the survey, but the extent of publication is only one of many new issues for determination by courts. The sheer scope of the changes can best be addressed by referring to the many issues raised in Dr Matt Collins QC’s weighty tome, The law of defamation and the internet.[93]

Defamation is only one cause of action which may arise from statements made on social media or in electronic publications such as emails. Publications on Facebook may be made in trade or commerce[94] and also be defamatory.[95] They may constitute grounds for an apprehended violence order.[96]

Changes to intellectual property law arising from sharing social media sources will be profound. To cite only one example, in one of a series of articles in the ABA Journal on the paradigm shift in the way law is being practised, the author asks “Who owns the law?”.[97]


Electronically stored information will vastly increase the number of discoverable documents, and special equipment may be required to view them. This is an acknowledged problem in the US.[98] The obligation to discover material on Facebook, the contents of mobile phones and other social media-related documents is now a common issue in litigation proceedings.

Employment law

The sorry story of the senior bureaucrat who lost her job because her tweets were less than flattering to her employer[99] should be a warning to employees both in and out of the court system. The courts have also been asked to rule on what constitutes reasonable access to social media by employees. The United Firefighters Union of Australia brought a complaint to the Fair Work Commission about a 60-minute restriction upon social media use.[100] Fortunately (or unfortunately) the matter was resolved by mediation. Insurers and brokers may need to consider these issues when drafting policies.

Illegally or improperly obtained evidence

Illegally obtained evidence is adequately dealt with under existing legislation. The principal problem in the future, in my opinion, will be claims brought on the basis of revelation of private information, such as health records or sexual activity. The fastest-growing area of tort law relates to invasions of privacy through illegally or improperly obtained photographs, films of private sexual activities, voicemails, or other private material which can be accessed and republished online.

Part of the problem is that different kinds of private or confidential information give rise to different kinds of problems. A good example is the practice of animal liberation groups releasing illegally obtained material demonstrating cruelty to animals. The High Court could neither identify nor describe the tort in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[101] and the problem now is that material of this sort is not just distributed to the mainstream media, but is put directly onto social media websites. A number of US States have attempted “ag gag” (“agricultural gag”) laws to criminalise the provision of illegally obtained material about animal cruelty, with mixed success. However, the issues of law arising from animal cruelty, such as live baiting greyhounds, are generally disclosures of business practices rather than personal information.

Jury use of social media during the trial

A realistic approach to jury use of social media during the trial is essential. A good example of common judicial sense prevailing can be seen in R v Wills.[102] The Director of Public Prosecutions (NSW) (DPP) complained to the trial judge that information about a fraud trial was “all over Facebook”[103] after a juror not only joined other jurors as Facebook friends, but had a photoshopped photo on his site (posted by a personal friend) of the juror’s face superimposed onto a picture of another person in a wig and gown.[104] The DPP wanted the trial judge to question the jurors under ss 55D and 55DA of the Jury Act 1977.[105] Relying on information from the sheriff and an examination of the Facebook pages in question, Haesler SC DCJ concluded that the material was “no more than one would expect a juror in a long trial to engage in”,[106] and the application was refused.

Jury Skaf directions[107] — and the jury’s continued existence

It is not just potential jurors who have access to the internet on their phones or iPads; almost invariably so do their families, and everyone they know. The days when a simple warning to the jury not to look up material on the internet would be listened to are certain to be drawing to a close. Members of the public routinely look up everything from the ending of a movie to archived news stories. Courts are still struggling with what directions jurors should be given. It is still not settled law whether civil juries should be given any directions at all.

What the courts do about proper directions to juries, pre-trial publicity, trial publicity, and indeed, in relation to the future role of the jury is a vast topic, to which this short paper can only briefly refer.[108] Directions about pre-trial publicity, pixelated photographs,[109] use of suppression orders and reporting restrictions,[110] to list only a few of the major areas of concern, need reconsideration. In the UK, a jury was dismissed and a juror (Joanna Fraill) sentenced to imprisonment after she used social media to befriend the defendant.[111] Also R v The Herald & Weekly Times Pty Ltd [2021] VSC 253, where 12 news media organisations, who pleaded guilty to 21 charges of contempt of court for reporting information derived from the trial of Cardinal George Pell in December 2018, contrary to a proceeding suppression order, were convicted and sentenced.[112]

Product liability, health and safety

The interconnectivity of devices, remote access and surveillance may affect traditional concepts of negligence.[113]


The issue of whether a statutory cause of action should be introduced for a serious invasion of privacy, or such a cause of action should be left to the courts to create and define, has been reviewed in a series of reports from the Australian Law Reform Commission from 1979 onwards.[114] All that seems certain is that, sooner or later, such a cause of action will exist. How courts deal with publication on social media which contravenes the right to privacy will form part of that discussion.[115] Understanding the technology involved will be essential.[116]

Service of documents

Applications for substituted service traditionally sought orders that publication in a newspaper’s legal notices column be considered sufficient, although the likelihood that these pages were ever consulted by the defendants in question was improbable. As was noted by the participants in the survey, magistrates in Family Court proceedings, spurred by the desire to make actual contact with the missing party in proceedings, began making orders which included service by Facebook[117] or LinkedIn,[118] a procedure which has spread to other courts.[119] Courts acknowledge that “many corporations now use [Facebook] Fan pages to promote their business”.[120] Facebook use to promote business by music performers such as Lady Gaga (who had the most followers in the world at the time of writing) is a well-known example.

However, the NSW Court of Appeal decisively rejected the use of social media in Flo Rida v Mothership Music Pty Ltd.[121] Flo Rida, a singer, was paid $50,000 to sing at a concert but, minutes before he was due to perform, refused to do so. The promoter commenced proceedings against both Flo Rida and the Australian company representing him, and sought an order for substituted service by Facebook, as well as service by email on the Australian company (which continued to represent Flo Rida during his visit to Australia), as there was evidence his departure from Australia was imminent. Justice Macfarlan warned that anyone could set up a Facebook page in the name of Flo Rida, and service (including service on Flo Rida’s co-defendant by email) and the default judgment were set aside. These statements suggest a lack of curial familiarity with the widespread commercial use of Facebook,[122] particularly by the music industry, and with the now universal use of emails by businesses generally.

The decision is also inconsistent with the increasingly common use of social media in the Family Court and more recently summonses, such as the use of USTREAM for service on a young girl publishing information about sporting figures.[123] (USTREAM was a program which enables its users to upload videos, not only to the USTREAM site, but to various sites including Facebook and Twitter, it is no longer available as a streaming option as of 1 August 2016).[124] Such orders are increasingly common in Family Law Act 1975(Cth) proceedings,[125] orders for corrective advertising,[126] notification of criminal proceedings and applications for injunctions. The likelihood is that this will continue, regardless of the Court of Appeal’s disapproval.


The form of suppression order relevant to social media which has caused the most difficulty in the UK is the superinjunction — so called because even the fact that an injunction has been sought cannot be revealed. This was a popular method of media suppression where social media, especially Twitter or Facebook, was used to name persons contrary to court orders made to prevent sensational “red top” tabloid publications from publishing scandals (usually of a sexual nature). Some of these orders were made contra mundum. The Neuberger Committee[127] produced a comprehensive report on superinjunctions in the UK 10 years ago and the problem appears to have died down. There appears little likelihood that such problems will arise in Australia, although the practice of naming and shaming convicted pedophiles continues to be an issue.

Surveillance footage, procedural fairness and other issues

In Frost v Kourouche,[128] a review panel confronted an applicant with evidence that, according to her Twitter and Facebook accounts at least, she was a lot less injured than she had been asserting. Independently of the issues of procedural fairness raised in this case, social media is a fertile (and cheap) source of information about the daily activities of injured plaintiffs (see also Munday v Court,[129] where excerpts from the plaintiff’s Facebook pages were tendered, to similar effect). The rules for showing surveillance film are straightforward, but would social media posts, such as photographs be caught by Pt 31, r 31.10 of the Uniform Civil Procedure Rules 2005 if they are the plaintiff’s own entries?


While preparing this paper, I asked some of my colleagues if they used social media. One response was that judges should not use social media because its contents could be harmful to the standing of judges. Whether judges (as opposed to doctors, religious leaders or police officers) should refrain from use of social media is an issue best left to the guidance of the courts, but the exclusion of judges from, for example, academic discussions on law reform issues, runs the risk of judges being seen as out of touch with the community.

Another response was to the effect that there were many undesirable aspects of social media, such as the “trolling” attack on Charlotte Dawson. Social media certainly is open to misuse, but so is mainstream journalism, as evidence in the Leveson Inquiry[130] and subsequent criminal proceedings has made clear.

A further area for concern, whether judges participate in social media or not, is how social media will impact upon how judges do their work. While it would be fanciful to fear that judgments will feature a “like” button, or end up being as short as those seen on television series, the style and content of judgments (and headnotes) will undoubtedly change in the course of interaction with the public through the courts’ Twitter sites.

However, it is relevant to note that judgment-writing style has changed profoundly over time, and no doubt this will be a continuing process. A mere 400 or 500 years ago, judges did not have to worry about writing judgments at all. They would argue the cases with the lawyers or, if there was a collegiate Bench, with each other, but did not necessarily hand down a formal judgment. Sometimes counsel would ask for an explanation; for example, barrister Edmund Plowden is recorded in Sharington v Strotton[131] as asking: “may it please you, my lord, for the sake of our learning, to show us the causes of your judgment?”,[132] following which Catlyn CJ delivered short reasons. By the end of the 18th century, judgments were still being delivered orally; opinions of individual judges (as opposed to the facts) were often not recorded or only summarised. In fact, when the first steps were taken to have judgments recorded, some judges complained.[133] By the 1970s, when Lord Denning MR was revolutionising judicial style by referring to bluebell time in Kent,[134] the role of the judge in the common law system was increasingly expected to reflect current social values and ideas. The precepts of simplicity and clarity currently being imparted to judges by Professor James Raymond and his colleagues will no doubt come to have increasing relevance.

This brings me to the most difficult issue in this discussion paper, namely how to reconcile the preservation of judicial independence with the need to communicate effectively, including use of social media to do so. The public perception that judges are out of touch is in part reinforced by perceived judicial unfamiliarity with cyberlaw and social media generally. Each time the current (and limited) Skaf warning is delivered to a jury who may need more compelling reasons to turn off mobile devices they consult on a daily or hourly basis, or a judge has to determine whether a journalist can send tweets from the court, or courts express unfounded fears of social media, the public will be the judges of whether the legal system is keeping up with modern technology. The US Supreme Court’s lack of familiarity with technological terms and absence from social media has already led to “bemused derision”[135] of these justices as “black-robed techno-fogeys”[136] and Luddites.[137]

Judicial education, law reform and changes to courtroom procedure to accommodate social media and electronic publication are issues with which the courts, and judges, must deal now.

[1] Revised version of a paper prepared for the District Court of NSW Seminar, Social Media, 4 June 2014, Sydney. This paper is based in part on two earlier papers by the author: “Should judges use social media”, Australasian Institute of Judicial Administration Public Information Officers’ Conference, Social Media and the Courts, 14 June 2013, Sydney; and “Judicial style and reasoning”, for the 2009 China Law Society Legal and Judgment Writing Conference, September 2009, Shanghai. This article has been updated in 2021.

The author wishes to thank Liz Porter (Media Officer, Australasian Institute of Judicial Administration), Julia Virgo (Special Counsel, Clayton Utz), Ruth Windeler (former Education Director, Judicial Commission of NSW) and her associate Vincent Mok (District Court of NSW).

[2] Judge of the District Court of NSW.

[3] The February 2013 survey of 62 judges and court workers by Professor Keyzer and others, referred to in detail in this paper, and summarised in Keyzer et al, “The courts and social media: what do judges and court workers think?” (2013) 25(6) JOB 47 is an invaluable resource. The speech given by the Honourable T Bathurst, Chief Justice of NSW, “Social media: the end of civilisation?”, Warrane Lecture, University of NSW, 21 November 2012, Sydney, at www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Bathurst/bathurst211112.pdf, accessed 26 May 2021, is also particularly helpful.

[4] The answer to this question is yes: L Hurley, “The Supreme Court is clueless when it comes to tech — and that’s a problem”, Business Insider Australia, 9 May 2014, at www.businessinsider.com.au/r-in-us-when-high-tech-meets-high-court-high-jinks-ensue-2014-09, accessed 26 May 2021. However, judges familiar with technology have expressed similar exasperation with lawyers who are “clueless about the latest in technology”: J Dysart, “Catch up with tech or lose your career, judges warn lawyers”, ABA Journal (online), 1 April 2014, at www.abajournal.com/magazine/article/catch_up_with_tech_or_lose_your_career_judges_warn_lawyers/, accessed 26 May 2021.

[6] “Editorial” (2011) 29(4) Salisbury Review 3.

[7] R Calo, “Robotics and the lessons of cyber law” (2015) 103 California Law Review 102. A draft of this paper, “Robotics and the new cyberlaw”, was presented at the We Robot 2014 Conference on Legal and Policy Issues relating to Robotics, 5 April 2014, Miami. Professor Calo has workshopped this paper through a series of conferences in 2013–2014, including the University of Washington and Yale, and it contains helpful definitions of many basic internet terms as well as a short history of internet law.

[8] Reno v American Civil Liberties Union 521 US 844 at 849 (1997).

[9] ibid at 851.

[10] B Garner (ed), Black’s law dictionary, 9th edn, West Publishing, 2009.

[11] F Sheppard, “A brief history of the internet over the past 20 years and the role of the world wide web”, ABC News, 25 May 2014 (updated 27 May 2014), at www.abc.net.au/news/2014-05-25/internet-changes-over-20-years/5470442, accessed 26 May 2021. There were precursors to the web, such as the French Minitel, released in 1978, but destined to be “an evolutionary cul-de-sac”: J Lichfield, “How France fell out of love with Minitel”, The Independent (online), 9 June 2012, at www.independent.co.uk/news/world/europe/how-france-fell-out-of-love-with-minitel-7831816.html, accessed 26 May 2021.

[12] A term coined by Kevin Ashton in 1999 at the World Economic Forum, Davos.

[13] www.urbandictionary.com, accessed 26 May 2021. Net dictionaries provide not only definitions, but origins. For example, “spam” comes from the Monty Python sketch; “Google” comes from the misspelling of “googol” (a large number); “yahoo” is an acronym; “Hotmail” was originally “HoTMaiL” (referring to HTML).

[16] J Chin, “China tightens grip on social media”, Wall Street Journal (online), 9 September 2013, at http://online.wsj.com/news/articles/SB10001424127887324549004579065113098846226, accessed 27 May 2021.

[17] D Tang, “China courts lift veils but keep courtroom closed”, The Big Story, Associated Press, 1 October 2013, at https://omaha.com/news/china-courts-lift-veils-but-keep-courtroom-closed/article_5555e75d-a1d1-58e4-aa92-2442f96dd104.html, accessed 27 May 2021.

[18] However, see B Feldman, “How Chinese courts try their cases on social media”, The Atlantic, 31 August 2013 at www.theatlantic.com/technology/archive/2013/08/how-chinese-courts-try-their-cases-social-media/311596/, accessed 26 July 2021.

[20] There are now entire websites dedicated to reputation protection for restaurants, hotels or other businesses, which receive bad reviews. Critical reviews are a fertile source of defamation actions: see L Kinstler, “How TripAdvisor changed travel”, The Guardian, 17 August 2018, at www.theguardian.com/news/2018/aug/17/how-tripadvisor-changed-travel, accessed 26 July 2021.

[21] N Galvin, “Psy’s Gangnam Style ‘breaks’ the internet”, Sydney Morning Herald (online), 4 December 2014, at www.smh.com.au/entertainment/music/psys-gangnam-style-breaks-the-internet-20141204-11zusj.html, accessed 27 May 2021. In June 2015, Baby Shark became to most watched video with 8.44bn views.

[22] For example, the SA Supreme Court has a presence on YouTube, see www.youtube.com/results?search_query=south+australia+supreme+court, as does the Judicial Commission of NSW, see www.youtube.com/user/JudComNSW, accessed 27 May 2021.

[24] http://en.wikipedia.org/wiki/ICQ, accessed 6 January 2015.

[25] C Jones, “iTunes hits 25 billion songs sold”, Forbes, 2 June 2013, at www.forbes.com/sites/chuckjones/2013/02/06/itunes-hits-25-billion-songs-sold/, accessed 27 May 2021.

[26] D Gillmor, “Encyclopedia Britannica in the age of Wikipedia”, The Guardian (online), 15 March 2012, at www.theguardian.com/commentisfree/cifamerica/2012/mar/14/encyclopedia-britannica-wikipedia, accessed 27 May 2021.

[27] Geocities, created in 1994 and closed in 2009, was one of the first social media-style sites: www.oocities.org/, accessed 27 May 2021. More recent examples are Minecraft, Second Life and IMVU.

[29] https://twitter.com/NSWSupCt, accessed 27 May 2021.

[30] D Smith, “When everyone is the judge’s pal: Facebook friendship and the appearance of impropriety standard” (2012) 3(1) Journal of Law, Technology and the Internet 1 at 2, at https://scholarlycommons.law.case.edu/jolti/vol3/iss1/8/, accessed 27 May 2021. See eg, Youkers v The State of Texas 400 SW 3d 200 (2013); Onnen v Sioux Falls Independent School District 801 NW 2d 752 (2011); and Quigley Corporation v Karkus 2009 WL 1383280 (ED Pa).

[31] Public Reprimand, Inquiry No 08–234 before the Judicial Standards Commission, State of North Carolina, 1 April 2009. The judge also conducted personal research into the alleged conduct of the mother by visiting the website of the mother’s photography business and later quoted poems she had published there in open court. The orders made by the judge were later vacated on the grounds of the ex parte communication between the judge and father’s lawyer, and for bias or influence gained from the independent research conducted by the trial judge. The judge disqualified himself and a new trial for the custody dispute entered.

[32] See eg, the response of the UK courts as late as 2012: M Beckford, “Judges banned from blogging or tweeting about cases”, The Telegraph (online), 15 August 2012, www.telegraph.co.uk/news/uknews/law-and-order/9477275/Judges-banned-from-blogging-or-Tweeting-about-cases.html, accessed 27 May 2021.

[33] In Valentine v Eid (1992) 27 NSWLR 615 at 621, Grove J, lamenting the “potential for disorder” caused by the almost total unavailability of NSW District Court judgments, even for other judges and magistrates, stated: “A Local Court learning of a decision in the District Court would seem to depend largely upon chance”.

[34] See the discussion of the ramifications of electronic judgment publishing on authorised reports by the Honourable Justice G Lindsay in “The future of authorised law reporting in Australia”, paper presented to the Australian Law Librarians Association, 11 June 2013, Sydney, published in (2013) 25(9) JOB 73, and discussed in more detail later in this paper.

[36] See for example, https://twitter.com/highcourtofaus?lang=en for the latest tweets from the High Court of Australia; and https://twitter.com/fedcctcourtau?lang=en for tweets from the Federal Circuit Court of Australia.

[37] See www.supremecourt.uk/live/court-01.html, accessed 26 July 2021.

[38] R Schoon, “Social media Saturday: Twitter celebrates 8th birthday, gets banned in Turkey, and US government tells Facebook about privacy”, Latin Post (online), 22 March 2014, at www.latinpost.com/articles/9327/20140322/social-media-saturday-twitter-celebrates-8th-birthday-gets-banned-in-turkey-and-u-s-gov-tells-facebook-about-privacy.htm, accessed 27 May 2021; Twitter celebrated by allowing its users to access their first Tweet, an indication of the eternal nature of publication in the blogosphere.

[39] B Kerschberg, “The new way twitter will dominate online journalism”, Forbes, 13 January 2012, at www.forbes.com/sites/benkerschberg/2012/01/13/the-new-way-twitter-will-dominate-online-journalism/?sh=7658e3bf6128, accessed 27 May 2021. For a more recent article on Twitter's influence, see “Twitter’s influence on news judgment: an experiment among journalists” at https://journals.sagepub.com/doi/abs/10.1177/1464884918802975, accessed 21 July 2021. When asked what medium she could not live without, the 7.30 Report’s Leigh Sales told Encore: “Probably Twitter. It collates all the different sources of information — newspapers, magazines, blogs, TV and radio — and puts them in one place for me to sift through. It saves me a huge amount of time and delivers me a lot of information I wouldn’t otherwise find”: at http://mumbrella.com.au/leigh-sales-157476, accessed 27 May 2021. See also Kumova v Davison [2021] FCA 753.

[41] See the coverage of the phone hacking trial by Peter Jukes: https://twitter.com/peterjukes, accessed 27 May 2021, and his book, Beyond contempt: the inside story of the phone hacking trial, Canbury Press, 2015.

[43] District Judge Howard Riddle permitted journalists to send tweets from the courtroom while hearing the Assange case: see CBS News, 15 December 2010, www.cbsnews.com/news/uk-judge-allows-tweeting-at-assange-hearing/, accessed 26 July 2021. However, Swedish Judicial Authority v Assange [2010] EWHC 3473 (Admin), Ouseley J refused permission for this practice to continue.

[45] The Honourable J J Spigelman, then Chief Justice of NSW, “Seen to be done: the principle of open justice”, paper presented at the 31st Australian Legal Convention, 9 October 1999, Canberra.

[46] (2004) 61 NSWLR 344.

[47] ibid at [18].

[48] L Mulcahy, Legal architecture: justice, due process and the place of law, Routledge, 2011, Ch 5.

[49] The Honourable Justice I Judge, then Lord Chief of England and Wales, keynote address to the Society of Editors Annual Conference, 16 November 2009, London.

[50] L Moran, “Mass-mediated ‘open justice’: court and judicial reports in the press in England and Wales” (2014) 34(1) Legal Studies 143.

[51] B Page, R Wake and A Ames, Public confidence in the criminal justice system, Home Office Research Findings 221, Home Office (UK), London, 2004.

[52] Cerutti v Crestside Pty Ltd [2014] QCA 33 at [49], n 45.

[53] (1979) 24 ALR 473 at 492.

[54] C McLeod, “Wrestling with access: journalists covering courts” (2004–2005) 85 Reform 15 at 15; M Krawitz “Stop the presses but not the tweets: why Australian judicial officials should permit journalists to use social media in the courtroom” (2013) 15(1) FLJ 1 at 5.

[55] McJannett v Daley (No 2) [2012] WASC 386 at [4] (Le Miere J).

[56] P de Jersey, “Courts and the media in the digital era: a judicial perspective” in P Keyzer, J Johnston and M Pearson (eds), The courts and the media: challenges in the era of digital and social media, Halstead Press, 2012, pp 35–36.

[57] See eg, M Kirby, “Improving the discourse between courts and the media” (2008) 35(6) Brief 20.

[58] I Lueckenhausen, “Facebook vs a fair trial? Court reporting restrictions and the internet” (2009) 92 Precedent 15; Krawitz, above n 54, at 6.

[59] J Evatt, “Bloggers beware: law uneasy about citizen journalists and court reporting”, No Fibs, 7 August 2013, at https://nofibs.com.au/bloggers-beware-social-media-and-the-courts/, accessed 27 May 2021.

[60] (1991) 26 NSWLR 131 at 141.

[61] See Ex p West Australian Newspapers Ltd & Channel Seven Perth Pty Ltd [2014] WADC 12.

[62] Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 at [22] (Rares J).

[63] See P Keyzer, “Media access to transcripts and pleadings and ‘open justice’: a case study” (2002) 2(3) The Drawing Board 209, at www.australianreview.net/journal/v2/n3/keyzer.pdf, accessed 27 May 2021, which reviews Australian courts’ rules for provision of documents to the media.

[64] For a comprehensive bibliography, see the articles discussed by N Garoupa and C Liguerre, “The syndrome of the efficiency of the common law” (2011) 29(2) Boston University International Law Journal 287, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1674170, accessed 27 May 2021.

[65] O Bowcott, “Inquisitorial system may be better for family and civil cases, says top judge”, The Guardian (online), 5 March 2014, at www.theguardian.com/law/2014/mar/04/inquisitorial-system-family-civil-cases-judge-lord-thomas, accessed 27 May 2021.

[66] For example, the Victorian Reports are now published electronically and free of charge: https://victorianreports.com.au/, accessed 26 July 2021.

[67] L Hall, “Judges fight ‘out of touch’ tag with courtroom broadcasts, jurors’ surveys”, Sydney Morning Herald (online), 26 March 2014, at www.smh.com.au/nsw/judges-fight-out-of-touch-tag-with-courtroom-broadcasts-jurors-surveys-20140325-35ghn.html, accessed 27 May 2021.

[68] N Farndale, “Google has eroded a judge’s right to be heroically out of touch”, The Telegraph (online), 16 June 2012, at www.telegraph.co.uk/comment/columnists/nigelfarndale/9335414/Google-has-eroded-a-judges-right-to-be-heroically-out-of-touch.html, accessed 27 May 2021.

[69] D Blitsa et al, “Judges and social media: managing the risks”, Researchgate, at www.researchgate.net/publication/315450646_Judges_Social_Media_Managing_the_Risks, accessed 26 July 2021.

[70] A M Gleeson, “Out of touch or out of reach?” (2005) 7(3) TJR 241.

[72] See AIJA, Guide to Judicial Conduct, 3rd ed (rev), 2022. See also Beckford, above n 32.

[73] Goritsas v Barakat [2012] NSWCA 36 at [64] (Basten JA).

[75] See for example, Local Court Practice Note Crim 1 Case management of criminal proceedings in the Local Court; Judicial Commission of NSW, Local Court Bench Book at [28-120] case conferences may be held by AVL.

[76] H Aston, “Man jailed over nude Facebook photos”, Sydney Morning Herald (online), 22 April 2012, at www.smh.com.au/technology/man-jailed-over-nude-facebook-photos-20120421-1xe2c.html, accessed 27 May 2021.

[77] For technological changes in the courtroom since COVID-19 pandemic, please see: A Levin and T Kashyap, “Law enforcement and police powers in NSW during COVID-19” (2020) 32 JOB 29; A Miller, “Lawcodes report: new criminal penalties for COVID-19 related offences” (2020) 32 JOB 33; NSW Public Defenders, COVID-19 resource for practitioners; Judicial College of Victoria, Coronavirus and the courts — summary of court arrangements around Australia during COVID-19 pandemic.

[78] G Lindsay, “The unfolding future or authorised law reporting in Australia”, 25 September 2013, Sydney, at www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Lindsay/lindsay_2013.09.25.pdf, accessed 27 May 2021. See also S Rares, “Remarks to welcome to Australia the Incorporated Council for Law Reporting for England and Wales” at www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-rares/rares-j-20180509, accessed 26 July 2021.

[79] Lindsay, ibid at [17].

[80] ibid at [14].

[81] K Hayne, “The vanishing trial” (2008) 9(1) TJR 33.

[82] Keyzer et al, above n 3.

[83] Newcastle City Council v Lindsay [2004] NSWCA 198 at [29]–[32] (Giles and Tobias JJA; McClellan AJA); Goritsas v Barakat [2012] NSWCA 36 at [64].

[84] See also Australian Law Reform Commission, “Who judges whether a judge is biased?”, 24 May 2021 at www.alrc.gov.au/inquiry/review-of-judicial-impartiality/spotlight-on/who-judges/, accessed 26 July 2021.

[85] See M Groves, “Public statements by judges and the bias rule”, 40(1) Monash University Law Review 115 at www.monash.edu/__data/assets/pdf_file/0004/139837/groves.pdf, accessed 26 July 2021.

[86] [2013] VSC 554.

[87] [2014] WADC 12.

[88] ibid at [68]–[70].

[89] (2013) 115 SASR 90.

[90] [2014] VSCA 111.

[91] ibid at [57].

[92] ibid at [56].

[93] M Collins, The law of defamation and the internet, 3rd edn, Oxford University Press, 2011.

[94] Madden v Seafolly Pty Ltd [2014] FCAFC 30.

[95] McAlpine v Bercow [2013] EWHC 1342 (QB).

[96] Ives v WA (No 8) [2013] WASC 277, which reports Mr Ives’ subsequent, and unsuccessful, attempt to sue the person seeking the order for defamation.

[97] V Li, “Who owns the law? Technology reignites the war over just how public documents should be”, ABA Journal (online), June 2014, at www.abajournal.com/magazine/article/who_owns_the_law_technology_reignites_the_war_over_just_how_public_document/, accessed 27 May 2021.

[98] Dysart, above n 4.

[99] Banerji v Bowles [2013] FCCA 1052. See also, Comcare v Banerji (2019) 267 CLR 373.

[100] United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2013) FWC 4758.

[101] (2001) 208 CLR 199.

[102] [2012] NSWDC 285.

[103] ibid at [1].

[104] ibid at [4].

[105] ibid at [3].

[106] ibid at [5].

[107] R v Skaf (2004) 60 NSWLR 86 at [280]–[284]; Jury Act 1977, s 68C.

[108] See Judicial Commission of NSW, Criminal Trial Courts Bench Book at [1-450]; C Smith and J Wheeler, “Dealing with prejudicial and adverse publicity”, March 2018 at www.publicdefenders.nsw.gov.au/Documents/Prejudicial and Adverse Publicity.pdf, accessed 26 July 2021.

[109] These problems principally occur in reports of criminal trials and cases involving minors. For the truly determined, Google can be used to get around pixelated photographs: see A Kidman, “Use Google to identify pixelated pictures”, Lifehacker Australia, at www.lifehacker.com.au/2012/07/use-google-to-identify-pixelated-pictures/, accessed 27 May 2021.

[110] For a helpful review of proposed reporting restrictions in the UK, see J Townend, “Law Commission: a sensible proposal for online recording of reporting restrictions”, Inforrm’s Blog, 18 April 2014, at http://inforrm.wordpress.com/2014/04/18/law-commission-a-sensible-proposal-for-online-recording-of-reporting-restrictions-judith-townend/, accessed 27 May 2021.

[111] A G v Fraill [2011] EWCH 1629 (Admin).

[112] See also, A Cooper, “Media companies apologise to court for breaching Pell suppression order”, Sydney Morning Herald, 10 February 2021 at www.smh.com.au/national/media-companies-apologise-to-court-for-breaching-pell-suppression-order-20210210-p57189.html, accessed 26 July 2021.

[113] G Millman, “Cyber cavalry rides to the rescue of internet of things”, The Wall Street Journal (online), 5 May 2014, at http://blogs.wsj.com/riskandcompliance/2014/05/05/cyber-cavalry-rides-to-the-rescue-of-internet-of-things/, accessed 27 May 2021.

[114] See eg, Australian Law Reform Commission (ALRC), Privacy, ALRC Report 22, 1983, at www.alrc.gov.au/report-22, accessed 27 May 2021; and ALRC, Serious invasions of privacy in the digital era, ALRC Report 123, 2014, at www.alrc.gov.au//publications/serious-invasions-privacy-digital-era-report-123, accessed 27 May 2021.

[115] Office of the Privacy Commissioner, The adequacy of protections for the privacy of Australians online, Submission to the Senate Standing Committee on Environment, Communications and the Arts, August 2010.

[116] ALRC, For your information: Australian privacy law and practice, ALRC Report 108 (Final Report), 2008, Pt 1, Ch 9, “Overview: impact of developing technology on privacy”, at www.alrc.gov.au/publications/9.%20Overview%3A%20Impact%20of%20Developing%20Technology%20on%20Privacy/internet, accessed 27 May 2021.

[117] For example, Penna v Lanza [2014] FCCA 278.

[118] For example, Hilton v Longhurst [2013] FamCA 511.

[119] Graves v West [2013] NSWSC 641 (service by LinkedIn).

[120] Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34 at [16]. See also, “Facebook Marketing for Musicians 2021” at www.octiive.com/blog/facebook-marketing-for-musicians-2021, accessed 22 July 2021.

[121] [2013] NSWCA 268.

[122] See Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34.

[123] P Millar and J Lynch, “Better get a lawyer: St Kilda schoolgirl warned to appear in court today”, Sydney Morning Herald (online), 23 December 2010, at www.smh.com.au/afl/afl-news/better-get-a-lawyer-st-kilda-schoolgirl-warned-to-appear-in-court- today-20101222-195lw.html, accessed 6 January 2015.

[124] See also P Tabibi, “Facebook notification — you’ve been served: why social media service of process may soon be a virtual reality” (2014) 7 Phoenix Law Review 37.

[125] The Family Court Rules allow for substituted service (with court approval) of service via Facebook messenger, but not on someone's Facebook page/wall.

[126] Such as occurred in the proceedings in Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34.

[127] “Report of the Neuberger Committee: thorough, thoughtful but not the last word”, Inforrm’s Blog, 22 May 2011, at http://inforrm.wordpress.com/2011/05/22/report-of-the-neuberger-committee-thorough-thoughtful-but-not-the-last-word/, accessed 27 May 2021.

[128] (2014) 86 NSWLR 214.

[129] (2013) 65 MVR 251.

[131] (1564) 1 Plowden 298.

[132] ibid at 309.

[133] H Cockburn, Memorials of his time, TN Foulis, 1909, p 158. These early reports sometimes mixed judicial reasoning with opinions and the accuracy of the reports was uneven; see eg, Wills’ Trustees v Cairngorm Canoeing & Sailing School Ltd 1976 SC (HL) 30, which notes reporting errors of this kind.

[134] Hinz v Berry [1970] 2 QB 40 at 42.

[135] L Hurley, “The Supreme Court is clueless when it comes to tech — and that’s a problem”, Business Insider (online), 9 May 2014, at www.businessinsider.com.au/r-in-us-when-high-tech-meets-high-court-high-jinks-ensue-2014-09, accessed 27 May 2021.

[136] ibid.

[137] ibid.