Handbook for Judicial Officers — Socialising and social media

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 Nearly all of the traditional methods — the address book, postcard, phone book, encyclopedia — have been replaced by social media networking and electronic publishing.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:

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.

“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:

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 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]

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”.

“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.

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:

“Journalist” is defined in s 4 as follows:

A “media report” is also defined as follows:

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.

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:

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.

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.

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?

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.

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 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.

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.