One of the world's foremost social media gurus has warned law firms that any dithering over introducing social media strategies will see them overshadowed by tech-smart lawyers.
Okay, hands up who knows me in “Real Life”. (Whatever that means.)
Yep, quite a few of you. Well, if you know me in real life then one of the things you’re quite likely to know about me is that I’m a Magistrate.
Well, count yourself lucky. If the only way you know I’m a Magistrate is because of something you’ve read on here, or on Twitter or Facebook or anywhere else online, I hereby issue a directive requiring you to forget you ever read that. And, indeed, that you ever read this.
An email came yesterday: we’ve been issued some guidance…
Blogging by Judicial Office Holders
Introduction
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.
Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.
Any queries about this guidance should be directed to [name removed] at Judicial Office – Tel: 0207 [removed] Email: [removed].
I’m well aware in posting this on here I’m directly going against the guidance it contains, but simply wanted to let my readers know what has been issued so that they know why you won’t see me mention being a Magistrate online any more. I can – sort of – understand why the guidance has been issued. I’m not particularly happy about it, but as a Magistrate I’ve sworn to uphold the law regardless of whether I agree with it, and I’ll treat this guidance in the same way.
You’ll see that the guidance even goes so far as to instruct me to “remove any existing content” that conflicts with it. Well, a quick search indicates that I’ve only ever mentioned it on here about eight times in five years (now nine!), In due course I will probably comply and go back and edit all those posts that mention it. Including this one. Which I guess I’ll need to delete. Pretty fruitless, really, as all the posts will still exist in caches and backups somewhere.
I’m still waiting to hear how the excellent Magistrate’s Blog, written anonymously by Bystander, will respond. If he decides to call it a day it will be a sad loss.
As an aside, when I first saw the email, and read that guidelines had been issued on blogging, I wondered whether the judiciary were going to instruct us to refrain from blogging and using social networks at all. If that had been the case I would have seriously considered resigning from the bench.
I’m glad that I’ve not needed to consider that.
(PS: Introduction for new visitors here.)
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Let the judges blog
August 15, 2012 by Adam Wagner
The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.
The key section of the purported guidance is this:
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.
What to make of this? The first thing to say is that some of the best legal bloggers out there are judicial office holders, including The Magistrate’s Blog, whose anonymous writer has said he is thinking very carefully about what to do, and potentially the wonderful Nearly Legal housing law blog. NL of that blog (who admits to not being a judge), argues that the ban is “short-sighted” and a likely to have a “damaging effect on public understanding of the legal system and transparency“.
A detailed and thoughtful post on the issue has been published by family law blogger, barrister (but not judge) Lucy Reed, who argues:
Any judge or magistrate who opened her mouth before engaging her brain on twitter, on a blog on the radio or in a newspaper or elsewhere ought rightly to be the subject of complaint and due process. It does not require a heavy handed guidance document about web logging for that to happen.
My tuppence
As you might predict, I am with Lucy (and the rest of the legal blogopshere) on this issue. The guidance seems to be a knee-jerk reaction to a problem which does not exist. As Obiter J points out, “I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary.” I probably follow the legal blogosophere as much as anyone, and do not remember ever reading a single inappropriate blog post by a judge.
According to American blogger John Aravosis posts, it’s not all bad:
They didn’t ban judges from blogging all together, so that’s a good sign… Their concerns about anonymous blogging – that it’s not a guarantee that your secret identity won’t be found out – is justified.
But even if things are not all bad, as Lucy Reed suggests, there is still significant work to be done. As the guidance currently stands, it is likely to have a significant chilling effect on current and future judicial blogging. More worryingly, this somewhat heavy-handed response is likely to have precisely the opposite effect than is intended; namely, reducing public confidence in the judiciary by putting paid to the embryonic judicial blogging scene which has – most notably the Magistrate’s Blog – opened otherwise closed doors to court rooms and the everyday concerns and curiosities of life as a judge.
The effect of these new rules is potentially very widespread. Lots of barristers sit as part-time judges, whether in the County Court, as Deputy High Court Judges or Recorders. This guidance effectively bans them from blogging, as anyone would be able to find out that they are judges simply by checking their chambers profile.
A more enlightened view
The main problem here is the starting point. It appears that someone has identified a problem, being the potential (although until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary. Indeed, this seems to reflect the rather unfortunate proposed new guidance on Continuing Professional Development from the Bar Standards Board.
But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the position in the United States, where the President of the National Judicial College has said this:
As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice
Obiter J has posted more on the US view, which should be emulated here. Surely any errant judicial blogger (of which I repeat, there are currently none) can be brought into line using the already-existing disciplinary procedures available. The new guidance is akin to banning driving so as to prevent speeding. Or to coin a phrase which will be familiar to readers of this blog, a disproportionate means of achieving a legitimate end.
Like Nearly Legal, I will finish by reminding readers of the words of Lord Neuberger, the new President of the UK Supreme Court, that the Judiciary should
foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.
In my view, our own judicial guidance needs a bit more thought. Social media can be an opportunity rather than a threat for our legal system.
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How to lose followers on Twitter – a helpful guide for lawyers and legal journalists10 August 2012
Everyone should understand how Twitter works, whether they use it themselves or not
My Twitter account now has 33,000 followers and I genuinely have no idea why. This is not false modesty or a so-called ‘humble brag’. It is because there are many far better legal journalists and lawyers on Twitter, all of whom are worth following more than for my erratic tweets.
Accordingly, I cannot explain why I have so many followers. If I suddenly had half or double the number, I would not be able to explain that either. But what I can share is how it seems to have happened over time, and this may be useful to any other legal journalist or lawyer interested in using the Twitter social platform.
The first thing is to look not at how one gains followers but how one loses them. Unless your account is being followed because you are a celebrity or public figure, then the person who has just followed you really has no idea who you are. And people who follow easily also unfollow easily. Say something boring or uninformative, you will be unfollowed. Post two or more tweets and then you will be unfollowed just because you are clogging up their timeline. It may well be that thousands are following you, and this perhaps is nice; but on the way hundreds, if not thousands, will also unfollow you. On average, I get unfollowed by up to a dozen people every time I tweet.
So the first key is to not worry about being unfollowed; it usually is not personal, just evidence of a dynamic medium. At worst, it just means you said something interesting enough to be followed in the first place.
But what attracts followers? In my experience, it tends to be when people retweet you. This means that they have reposted your tweet to their follower list. The effect of this is that people who are not already following you will come across your existence and think you may well be worth a follow. But even here there is no way one can aim for this. Retweets are entirely in the gift of your followers. If they do not think you worth retweeting they will not retweet you, and nor should they.
And this takes you to one underlying merit of social media. So-called ‘social media strategies’ usually do not work. Other than at the margins, increasing a social media profile cannot be done by mere contrivance. Even those who acquire thousands of ‘bought’ followers are swiftly exposed and discredited. Just as nature abhors a vacuum, social media abhors phoniness. If your purpose in having a Twitter account is simply to increase followers then you are actually unlikely to do so.
My own approach to Twitter is mixed. It is a great means for sharing information, especially links, and viewpoints, and for instantly getting feedback. Sometimes the responses are boring or banal; but often there are those willing to share a fresh insight or engage in constructive criticism. On the other hand, there is a great deal of misinformation and sometimes sheer nastiness. But none of this is a special feature of Twitter; it is a feature of people generally.
In respect of the law, Twitter is a superb forum for pointing out errors in news reporting and for promoting generally the public understanding of law and our legal system. It is now becoming common for interesting trials to be live-tweeted and discussed, and for the mainstream media to then play catch-up.
The combination of live tweeting and legal blogging can mean that newspaper reports of the very same case add no or little value. For lawyers, Twitter can also be a rich source of information about clients and their environments. A lawyer who only looks at press cuttings may as well be looking at cave art. So even if a lawyer or legal journalist does not want to tweet, it is increasingly important that he or she understands how Twitter works.
David Allen Green, media correspondent of The Lawyer
video by VictoriaGovDOJTV
A short video for staff of the Department of Justice (Victoria, Australia) explaining the key elements of their social media policy. Visual licenced under Creative Commons (CC-BY-SA-NC), audio track licensed to REM Publishing via stockmusic.net For further details on the social media policy visit http://www.justice.vic.gov.au/socialmedia
Social Media Procedures
Parent Policy
(In this policy and its procedures references to Monash University or the University include Monash South Africa [MSA].)
Staff members are asked to be considerate, to be transparent and to understand that they are representing their employer and that their actions can impact upon the University's reputation. The University recognises the use of social media for open dialogue and the exchange of ideas where it's beneficial for the organisation and / or individual in their work or research capacity.
What is social media?
Social media is defined as media designed to be disseminated through social interaction, created using highly accessible and scalable publishing techniques. Social media allows for the easy sharing and re-purposing of existing content, expanding the reach of work and enabling others to share it with their friends and networks. Popular social media services include Facebook, Twitter, FourSquare, LinkedIn, blogs, YouTube and Flickr.
How is Monash University using social media?
Monash University has been an early adopter of social media. These social media tools help the University to facilitate two-way conversations between students, staff, parents, alumni, friends and fans. Currently the primary tools used are Facebook, Twitter, Flickr and YouTube.
Here are some of the official social media presences (these may change via Office of Marketing & Communications):
General
Use of social media by Monash University staff, where there is a connection with Monash University, must comply with these procedures and with all University policies and procedures governing conduct of staff.
Use of Social Media will have a "connection with Monash University" (and be covered by this policy) in each of the following circumstances:
- If the social media site is established or used as a Monash University social media site;
- If the social media is accessed using Monash University IT systems or equipment;
- If the staff member identifies themselves as a staff member of Monash University on the site; and/or
- If the content of the social media is specifically about Monash University or its staff or students, in whole or in part.
Staff must also read and observe the following before creating a social media presence or engaging in online discourse that has a connection with Monash University:
1. All official Monash University sites or pages on Facebook, Twitter, You Tube, Flickr, etc. must be developed and/or authorised by the Office of Marketing & Communications. Any sites or pages existing without prior authorisation as required above will be subject to review when discovered and may be amended or removed.
2. Content Owners are responsible for monitoring and maintaining web content as laid out in the Web Content Strategy document (in development).
3. The University reserves the right to restrict or remove any content that is deemed in violation of this policy.
4. All social networking sites shall clearly indicate that they are maintained by Monash University and shall have Monash University contact information prominently displayed.
5. Staff representing the University via social media outlets must conduct themselves at all times as representatives of the University and in accordance with all human resource and media policies regarding authorised spokespeople. This includes disclosing themselves as staff members of the organisation and using an approved official account.
6. Social networking content and comments must not contain any of the following forms of content:In the case of University social media sites:
a. Comments not topically related to the particular site or blog article being commented upon;
b. Comments not approved by authorised social media content writers and/ or the Office of Marketing & Communications or Advancement and Corporate Affairs (MSA).In the case of all use of social media possessing a connection with Monash University:
c. Profane or offensive language or content;
d. Content that promotes, fosters, or perpetuates discrimination on the basis of race, age, religion, gender, marital status, national origin, physical or mental disability, sexual orientation or other grounds protected under Commonwealth, Victorian or South African equal opportunity legislation;
e. Sexually explicit or pornographic content or links to sexually explicit or pornographic content;
f.Content used to intimidate or bully another staff member, contractor, student or other person;
g. Content that is or is likely to be defamatory;
h. Solicitations of commerce;
i. Material that is, or might be construed as creating a risk to the health and safety of a staff member, contractor, student or other person, including material that amounts to "unacceptable behaviour" such as bullying, psychological or emotional violence, coercion, harassment and/or discrimination, aggressive or abusive comments or behaviour, and/or unreasonable demands or undue pressure (see the Conduct and Compliance Procedure - Resolution of Unacceptable Behaviour in the Workplace);
j. Conduct or encouragement of illegal activity;
k. Information that may tend to compromise the safety or security of the public or public systems;
l. Content that violates a legal ownership interest of any other person, including breach of copyright or other intellectual property rights of another person;
m. Confidential information or personal information obtained in a person's capacity as a staff member/contractor of the University;
n. The Monash Name, crest or logo unless prior approval from the Office of Marketing & Communications or Advancement and Corporate Affairs (MSA) has been obtained;
o. Content that is misleading or deceptive; or
p. Content that involves unreasonable personal use.Responsibility
Members of the University community using social media
Associate Director, Media & Communications
Executive Director, Advancement and Corporate Affairs (MSA)Spokespeople
Authorised spokespeople for Monash University may provide comment on the University's social media sites as per the following:
1. Monash University management / operational matters:
Vice-Chancellor, Vice-President (Administration), Pro Vice-Chancellor (Monash South Africa), authorised OMC social media coordinators / communications personnel, Executive Director, Advancement and Corporate Affairs (MSA) or other as advised by Office of Marketing & Communications / Associate Director Media & Communications (i.e.: Dean / Faculty Manager)2. General Faculty matters - i.e.: class times, events etc:
Authorised social media coordinators / communications staff3. Expert commentary on a specialist subject:
Academics as per the ‘Academic Freedom' processResponsibility
Authorised spokespeople
Associate Director, Media & CommunicationsPersonal use
When accessing social media via the University’s internet, intranet and extranet systems, staff members must do so in accordance with the University IT policies, which require them to use these resources ‘reasonably’, in a manner that does not interfere with their work, and is not inappropriately or excessively accessed and does not breach this policy or other IT policies. Whether or not use was reasonable in the particular circumstances will be a matter to be determined by the user’s Head of Department or Administrative Head.Responsibility
Members of the University community using social media
Issues Management
Best practices for dealing with an issue arising out of the use of social media:
1. Identify the level of issue: Staff members should identify the issue, those discussing the issue, the forums used and the extent of the commentary along with any legal ramifications.
2. Listen: Staff members should listen to the conversations to maintain a clear and current understanding of what is being discussed.
3. Contact senior management: Staff members should assess commentary for accuracy / defamation / legal issues / organisational sensitivities. Those to contact include: University Solicitor's Office, Human Resources, Administration, Media & Communications, Advancement and Corporate Affairs (MSA), Faculty management.
4. Responding can inflame the issue: If a sensitive / negative issue is being discussed in a public / social media forum, responding can often inflame the issue by making the ‘protestors' believe the University is ‘worried' about their discussion, will change a decision and the like. Staff members should always hesitate before responding so as to ensure key messages, consistent messages, approval process and sensitivities.
5. Use social media to communicate an issue: Social media is an extremely effective tool for dealing with crisis management in order to communicate swiftly and to a large network at short notice. Social media can be used effectively with the correct messages in matters such as on-site crises at a campus where staff / students should leave the premises and gather at another location.Responsibility
Members of the University community using social media
Associate Director, Media & CommunicationsExpert Comment
The University recognises and protects the concept and practice of freedom of opinion and expression as essential to the proper conduct of teaching, research and the pursuit of scholarship. This right carries with it the duty of staff to use the freedom in a manner consistent with a responsible and honest search for knowledge and truth, grounded in scholarly evidence.
Where public comments are offered by staff as members of the University, it is expected that the comments will relate directly to the individual area(s) of expertise of their appointments. In that case, staff members may use the University's name and give the title of their University appointment in order to establish their credentials. This does not restrict the right of a staff member to freely express opinions in their private capacity as an individual member of society, but statements made in this context should not include the University's name, or the title of the staff member's University appointment.
The above should be read in conjunction with the Media Policy and Conduct and Compliance Procedures - Representing Monash (Public Utterances).
For further guidance on expert commentary please contact the Media & Communications department at media@monash.edu
Responsibility
Members of the University community using social media
Associate Director, Media & CommunicationsUse of images and / or video
In most cases, prior permission (i.e. a release) must be obtained to post, share or distribute images of individuals whose images are identifiable. For that reason, it is always best to use content, such as photographs or videos, obtained by University representatives specifically for the purpose of posting or distribution. For assistance with release forms, contact the Office of Marketing & Communications or Advancement and Corporate Affairs (MSA).
Staff members should not post content that might be embarrassing to an individual or that could be construed as placing an individual in a negative or false light.
Staff members should not post content that might cause someone to believe that his/her name, image, likeness or other identifying aspect of his/her identity is being used, without permission, for commercial purposes.
Special care must always be taken when dealing with images of "special populations", e.g. minors, patients or research subjects. Stringent legal requirements apply. Generally speaking, such images should never be used for social media posting or distribution.
Responsibility
Members of the University community using social media
Associate Director, Media & CommunicationsBest practice guidelines
Best practices for a successful social media presence:
1. Be timely: Staff members should deliver accurate information on time as this is expected from the audience.
2. Be respectful: Staff members should be professional and respectful at all times as this can directly reflect on the individual posting the message and/or the university and its institutional voice.
3. Listen: Staff members should listen to the conversations to maintain a clear and current understanding of what is relevant and of interest to the community.
4. Online content can and will live forever: The Internet is not anonymous, nor does it forget. Everything written on the Web can be traced back to its author one way or another and very easily. Information is backed up often and repeatedly, and posts in one forum are usually replicated in others through trackbacks and reposts or references.
5. Separate the personal from the professional: There is no clear line between a staff member's work life and personal life. Staff member should always be honest and respectful in both capacities. With the ease of tracing authors back from their posts and the amount of information online, finding the actual identity of a poster from a few posts and a screen name is not impossible. This creates an avenue for outside parties to link personal writings to those a person has done in a professional capacity. Staff members should always write as if everyone knows them. They should never write anything that they would not say openly to all parties involved.
6. Avoid hazardous materials: Staff members should not post or link to any materials that are defamatory, harassing or indecent.
7. Keep confidentiality: Staff members should not post any confidential, private or proprietary information.
8. Identification: When relevant, staff members should identify their affiliation with the University and their area of concentration.Responsibility
Members of the University community using social media
Associate Director, Media & CommunicationsContent Enquiries: Monash Media
University Policy Use Only:
Version Number: 1.0 Effective Date: 06-October-2011 Contact: adm-PolicyBank@monash.edu
Languages / Hearing / Speech Impairment?
Translation Services and Interpreters
Google translate : Disclaimer : this is provided as a service to the community, and does not purport to be legal advice.
Journalists allowed to use Twitter in English courtsPosted December 15, 2011 07:38:30
Reporters can now use Twitter, text messages and email in courtrooms in England and Wales without needing to ask permission, the head of the judiciary said.
"Twitter as much as you like from today," Lord Chief Justice Igor Judge told journalists as he handed down new guidelines on using laptops and hand-held devices.
Under interim guidance issued in December 2010, reporters could apply to the judge for permission to use live text-based communications in court.
That came after journalists covering the extradition hearings of WikiLeaks founder Julian Assange asked to be allowed to tweet live news of proceedings.
Following a year-long consultation, the need to make an application has now been lifted for journalists and legal commentators. However, members of the public will still need to do so.
The taking of photographs in court and using sound recording equipment remains outlawed, while regular court reporting restrictions still apply.
Judges have the discretion to limit use of live text-based communications if they feel it would hamper the administration of justice, for example if it could be a distraction, interfere with the court's electronic equipment or put pressure on witnesses.
"It is presumed that a representative of the media or a legal commentator using live, text-based communications from court does not pose a danger of interference to the proper administration of justice," Lord Judge said.
"This is because the most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings.
"As such, a representative of the media or a legal commentator who wishes to use live, text-based communications from court may do so without making an application to the court."
He said the use of "an unobtrusive, hand-held, silent piece of modern equipment for the purposes of simultaneous reporting" was unlikely to interfere with proper proceedings.
Scotland and Northern Ireland are separate jurisdictions within the United Kingdom.
AFP
Topics: courts-and-trials, law-crime-and-justice, internet-technology, internet-culture, information-and-communication, journalism, england, united-kingdom, wales
Twitter is being sued for defamation by a Melbourne man who was wrongly identified as the author of a “hate blog” directed at writer and TV personality, Marieke Hardy.
Hardy posted a tweet last year to “name and shame” Joshua Meggitt, the Melbourne man she incorrectly identified as the blog’s author, leading Meggitt to sue Twitter for defamation.
While Meggitt and Hardy have already apparently reached a (confidential) legal settlement, the broader issue of Twitter’s moral culpability and legal responsibility for allegedly defamatory tweets has now been brought sharply into focus.
This is the first time under Australian law Twitter has been sued for defamation, and it raises three interesting legal questions with respect to the liability of online intermediaries or platforms, such as Twitter, Facebook and YouTube.
1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. In that case, the High Court held that a cause of action for defamation arises in all places of publication. (That is, just because the Dow Jones is based in the US, it doesn’t mean Gutnick couldn’t bring the case to an Australian court.)
So even though Twitter is based in Silicon Valley, it can potentially be held liable for publication in Australia. This decision, while accepted law in Australia, has been very contentious overseas, particularly in the United States.
2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity.
While such disclaimers will likely provide some protection, they will not provide absolute legal protection in all situations. Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.
3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued.
This is novel because, in the United States, section 230 of the Communications Decency Act provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.
In Australia we do not have an equivalent immunity for platforms such as Twitter, Facebook or even Google. In Australia, platforms will have to rely on either the defence of innocent dissemination or schedule 5, clause 91 of the Broadcasting Services Act 1992 to avoid liability.
While both these provisions will clearly apply to internet service providers, they are unlikely to extend to provide immunity to platforms such as Twitter or Facebook. That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.
If that is indeed the result in this case, Australian defamation law will need urgent reform. Online intermediaries and platforms should not be held liable for the actions of their users.
It is simply not practically possible for these platforms to filter all the content posted to these sites. If the law did require platforms to do so, they would either be forced to pass the considerable costs of doing so on to their members, withdraw from Australia altogether or change the very nature of their platform.
Moreover, if Australian law did place this burden on platforms, such a regulatory framework would be a powerful disincentive to innovative new services being developed and based in Australia.
The simple solution could be that, where defamation takes place on the internet, the individual who posted those defamatory remarks should be held responsible. Alternatively, if the legislature wishes to impose an additional level of liability upon online intermediaries and platforms, it should do so only where such an intermediary and platform fails to take account of a defamatory comment once they have been given notice.
A notice and takedown regime has similar antecedents in existing legal frameworks. With respect to copyright, the US Online Copyright Infringement Liability Limitation Act (a part of the DMCA) and section 116AG of the Australian Copyright Act 1968 limits, in certain circumstances, the remedies available against carriage service providers to taking down infringing material, terminating a specific account and/or disabling access to an online location outside Australia.
With respect to defamation, Australia already has detailed provisions for offers to make amends. A scheme of this nature has the potential to protect an individual’s legal interests while fostering collaborative communication on the internet. It is a potential reform that deserves further consideration.
In essence, the law is still struggling to keep up with rapid advances in technology over the past few decades, and this case has the potential to expose some weaknesses in Australia’s existing defamation law with respect to online intermediaries and platforms.
It will definitely be a case to follow (both on and off Twitter).
Evidence In 140 Characters Or LessNot so long ago, sketch artists and reporters’ notebooks were the only means to convey courtroom proceedings. Along with much of the old world, justice is struggling to keep up with a smartphone-toting social-media here and now.
The trial has also captivated the internet’s darker regions, where the trial judge, prosecutors and defence are routinely savaged and defamed.
“ The normal ... rule has been that mobile phones must be turned off in court. There is however no statutory prohibition on the use of live text-based communications in open court.”
“ Whether the courts have sufficient confidence that amateur court tweeters are aware of the rules, are prepared to abide by them, or can be identified if they fail to do so, remains to be seen.”
Now-retired Chief Justice James Spigelman (R) in the NSW Court of Appeal in 2008 | AAP Image/News Ltd pool, Lindsay Moller
Former WA director of public prosecutions lawyer now murder defendant Lloyd Rayney | AAP Image/Cortlan Bennett
If ever there was a murder trial that rivets barristers' chambers from Phillip Street in Sydney to Perth's St Georges Terrace, it would be that of the former Western Australian Director of Public Prosecutions lawyer Lloyd Rayney — accused of killing his wife, Corryn, a lawyer and senior Supreme Court registrar.
Now in its seventh week, the trial astounds daily. It draws its cast from the gilded interior of the Western Australian justice system. Friends and colleagues from the Bar are now icy witnesses. The unravelling insides of a marriage — that of the vivacious Supreme Court Registrar to the lawyer in a love-at-first-sight tale — are searingly exposed.
The accused was an ambitious and tenacious prosecutor whose bigger cases included his prosecution of the great man of letters, Robert Hughes, after Hughes crashed in his car while returning from a fishing trip in Western Australia. Lloyd Rayney went on to sue Hughes, who nearly died in the crash, for defamation, after Hughes railed at his treatment by the Western Australian justice system. (That matter was settled out of court.)
So great is the media interest that court authorities have set up a room for reporters, away from the court, that offers a live electronic feed of the trial. Reporters are able to tweet, instantaneously, evidence and events as they unfold in the courtroom. On offer at Twitter (#rayneytrial) are instant scraps of evidence from the trial, or direct links to evidence — including a tape of a phone call between Lloyd Rayney and a technician he allegedly paid to bug his home telephone while his wife was still alive.
Of course, the trial has also captivated the internet's darker regions, where the trial judge, prosecutors and defence are routinely savaged and defamed in terms that would result in swift retribution had they appeared in mainstream media.
You might call it trial by Twitter.
Welcome to the technological frontline, then, as an ancient judicial system, forged in centuries of practice and precedent, rubs up against a bursting, grasping and still ill-formed social media. Suddenly there are new dilemmas about how a closeted, cautious judicial system deals with anyone with an iPhone and a will to write. The bench must even decide, perhaps, what defines a journalist within this new world. Will courts allow coverage of trials by Twitter? What about live streaming? And what to do with those who describe themselves as live bloggers?
The challenges posed by social media have cascaded down through judicial systems everywhere. Australia's responses — so far — range from an extremely tolerant social-media policy within the New South Wales District and Supreme Courts — one that permits reporters to instantaneously tweet proceedings — to a policy that will come into effect on September 3 in the Victorian judicial system, which bans instantaneous tweeting and live blogging, unless permission is expressly given.
The fact that there are widely varying policies within Australia's two largest judicial systems is perhaps not so surprising; it merely reflects the diversity of views within the law about the role of social media.
The Sydney barrister Mark Polden is a defamation specialist who has given much thought to the emerging new platforms. In his view there is a good argument that the use of Twitter in courts should be encouraged because, unlike the televising or filming of court proceedings, Twitter is unobtrusive and uninfluenced by proprietorial agendas, a reporting medium "which flows directly from the right of members of the public to be present in court and to report to others what they see and hear."
But Polden also is acutely aware of Twitter's limitations as a court reporting medium. Whilst Twitter's 140-character limit is capable of providing and promoting what Polden terms "headline coverage", a single tweet also is unlikely to stand up as a fair, protected report of court proceedings in the event of a challenge to its author.
He even sees a risk that Twitter will lead to a more closed court system, if non-journalists are allowed to provide tweeted reports.
"It may lead to more applications for closed courts, for example in extortion cases or those involving police informers both — of which are presently heard in open court, subject to the making of non-publication or suppression orders which allow the proceedings to be reported with relatively minor changes and by which journalists and the media generally abide," says Polden.
"Whether the courts have sufficient confidence that amateur court tweeters are aware of the rules, are prepared to abide by them, or can be identified if they fail to do so, remains to be seen," says Polden.
Even for experienced, professional court reporters such as The Sydney Morning Herald's Louise Hall, social-media platforms — especially Twitter — must be treated with great caution. Hall frequently tweets courtroom verdicts for which there is a wide audience but she says she is extremely wary of tweeting evidence as it unfolds in court despite the liberal rules in NSW which allow her to. Her greatest concern, she says, is that non-publication or suppression orders will be made after evidence has been given. While tweets can be deleted, they will have been published.
Hall also likes to know the Herald's lawyers have cast their eyes over her more demanding reports prior to publication.
"Obviously the lawyers cannot see your tweets before you send them off," she says.
Mark Pearson is a legal academic and professor of journalism at Bond University. This year he released his safety guide book for bloggers and tweeters, Blogging and Tweeting Without Getting Sued; A guide to the law for anyone writing online.
He is now leading a research project that is designing a social-media policy for adoption by Australia's various courts. Pearson is fond of pointing out the enormity of the consequences of getting things wrong on social media; every tweet or blog may be subject to the laws of more than 200 different jurisdictions.
He believes that anything that enhances the ancient principles of open justice should be welcomed and that there is no better tool to improve social justice than social media.
But he cautions: "The fact is we have an ancient judicial system that is quite conservative in its uptake of new technologies. Basically they are 19th-century procedures and practices that evolved for very good reason but don't necessarily suit social media."
Examples of court procedures and rules that risk compromise by social media, says Pearson, are the integrity of the jury process, the quarantining of witnesses from each other and the testing of evidence for admissibility. Live tweeting, he says, has the potential to prejudice any of those processes.
Pearson believes that courts will in future need to adopt specific social-media policies that accord with the kind of cases they are deciding. Some, such as the Family Court, will need to remain relatively secretive and closed. But for lower courts, there will be real advantages in the use of social media to demonstrate that minor crimes are being dealt with.
It is likely that Australian jurisdictions will look abroad when considering what social-media policies to adopt for courtrooms. They will find in Britain, at least, the unexpectedly open policy announced some 18 months ago by the Lord Chief Justice, Igor Judge, who proclaimed: "Twitter as much as you wish."
Not only do the guidelines brought down by the Chief Justice of England and Wales allow accredited court reporters to tweet from the courts, they also allow members of the public to tweet from the courts — provided they first obtain permission.
In his guidance, Lord Judge said: "The normal, indeed almost invariable, rule has been that mobile phones must be turned off in court. There is however no statutory prohibition on the use of live text-based communications in open court."
By contrast, the policy now applying in the Victorian Magistrates Court states: "Upon entering a Magistrates Court Victoria courtroom you must not use any electronic device where such use constitutes instantaneous publication (for example social media, such as Twitter or live blogging)."
This policy may be varied upon application to individual magistrates.
Yet in New South Wales journalists are allowed to take their mobile phones or "personal digital assistants" into court and use them for "electronic note-taking, text messaging or emailing".
Nowhere does the policy mention Twitter or Facebook. It was drawn up four years ago by the then Chief Justice, James Spigelman — at a time when smart phones had barely arrived and when Twitter was just about to catching on.
Intended — or not — the Spigelman policy has become the country's most liberal and Twitter thrives in NSW courtrooms.
Read more Bernard Lagan stories on the challenge posed by Google-happy jurors, Australia's Olympic-funding conundrum, and an artful gambler betting on public support to win his battle with the tax office.
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