The rise and rise of social media platform Twitter has had all sorts of impacts on the administration of justice. In this article, Partner, Tom Griffith explores two key developments: the effectiveness of suppression orders in the age of Twitter, and the use of Twitter as a live reporting tool for media organisations covering cases as they unfold in Court. Both of these issues are of course not unique to Australian Courts, but are being faced world wide.

The UK super injunction cases

There have been a number of high profile cases recently where suppression orders, known in the UK as super injunctions, have been undermined and breached by users of social media.

Perhaps the most famous of these has been the case of the Manchester United Football player Ryan Giggs. Giggs had been granted a UK super injunction prohibiting publication of his identity in relation to allegations he had had an extramarital affair with a former reality TV star. The super injunction ultimately provided little or no protection. Giggs was named as the relevant footballer on Twitter, and upwards of 70,000 Twitter users knew his identity and the allegations, despite them not appearing in mainstream media. Finally, a UK politician, under the cloak of parliamentary privilege, named Giggs in parliament as the player who had obtained the super injunction. Within hours, the mainstream UK media reported on the story in all of its tawdry detail.

The explosion of social media, combined with the growing and widespread use of smart phones means that the effectiveness of suppression orders is being called into question both in Australia and in many other parts of the world.  

What is a suppression order?

Suppression orders are Court orders that prevent the details of civil or criminal proceedings being publicised. Most commonly, suppression orders are used to suppress the identities of the accused, the victim and certain witnesses in criminal cases. Different approaches to suppression are taken in different jurisdictions.

The justifications for suppression orders include:  

  • protecting victims from adverse publicity, particularly in sexual cases  
  • protecting witnesses, to better ensure they will give evidence  
  • protecting the prosecution’s investigation of an alleged offence, or connected offences, and  
  • protecting the accused and protecting against an accused’s trial miscarrying by reason of prejudicial media reporting.  

At the same time, there has been criticism of suppression orders in that:  

  • they unduly protect the rights of an accused  
  • they are the province of the rich and powerful only, and  
  • they offend principles of open justice.  

Possible future direction

There will always be cases where suppression of details of individuals is in the public interest. Social media and smart phones pose a potentially lethal threat to the use or effectiveness of suppression orders. However, ultimately it is important to note that they are mere conduits for information. Someone ultimately needs to know the relevant information before it can be posted, and that individual must be prepared to breach the terms of a suppression order. Rather than attempting to wind back the technology, the answer may instead lie in a public education campaign about the issue and tougher penalties for those who breach Court orders. Both of these are a tough sell.

It is not clear how prosecution authorities will respond to the challenges posed. Prosecution authorities face difficulties in locating and bringing to justice those who elected breach suppression orders:  

  • Problems with identification - Twitter users and bloggers often use pseudonyms and multiple identities  
  • Too many offenders in number, such that selecting any one offender may risk criticism of discrimination  
  • The offenders may be outside the jurisdiction of the Courts, and
  • Tougher penalties for breaches of suppression orders and a public education campaign about the role of suppression are tough political sells.

However, in the face of the difficulties outlined above, if prosecuting authorities do nothing, important criminal and civil trials may miscarry. Traditional media outlets, who have historically been very respectful of suppression orders may also cry foul about having to comply with onerous suppression restrictions while new media users seemingly get off scot free.  

We are effectively faced with a bizarre dichotomy, highlighted by the Ryan Giggs case, where a large chunk of the British population knew the identity of the footballer via Twitter or word of mouth, however the traditional media could not identify or repeat the name by reason of the Court’s order.  

Twitter in the courtroom

Social media, and in particular Twitter, has also had a significant impact on the way in which Court proceedings are reported by the media.  

The high profile bail proceedings against Julian Assange in the UK is a prime example of the Courts coming to grips with the widespread use of social media. In an interim guidance note, Lord Justice Igor Judge stated that the use of unobtrusive, handheld, virtually silent pieces of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice. The Lord Justice’s guidance note was subject to some important caveats. Permission to make live text based communications regarding a Court case may only be granted following an application to the Court in question. Individual judges reserve a discretion to disallow use of live, text‑based communications if such use would interfere with the proper administration of justice. The prohibition on recording Court proceedings and taking photographic images in Court remains. The existing UK statutory framework governing contempt of Court still applies.

The Australian position

The position in Australia will vary from State to State. There has traditionally been a general prohibition on the use of mobile phones in New South Wales courtrooms. It is not expected that this prohibition will be lifted, although with the advent of new technology it may be modified. Currently a policy exception applies to journalists who work for recognised media organisations, who are permitted to use mobile phones or personal digital assistants (PDAs) provided that such devices are:  

  • switched to silent  
  • are not used for verbal communication  
  • are only used for note taking, text messaging or emailing, and  
  • the use of the mobile phone or PDA does not cause any disruption to Court proceedings.  

Query whether a similar policy exception might in future apply to solicitors and barristers, who might similarly be permitted to use mobile devices in Court to send messages back to their offices or chambers, provided that they are switched to silent and do not disrupt the Court proceedings.  

It is important to note too that the NSW Supreme Court practice note allows practitioners to use laptop computers at the bar table during hearings.  

The risks posed by live text-based reporting from Courtrooms are discussed in a recent Consultation Paper published by the Judiciary of England and Wales and include:

  • technical interference with the Court’s PA systems and transcript recording equipment  
  • increased risks of jurors researching their cases online during trials  
  • witnesses who are out of Court may be informed via Twitter of what has already happened in Court and be coached or briefed prior to giving evidence
  • difficulties for Court staff in identifying those present in a Courtroom who are entitled to use mobile devices and those who aren’t (possibly overcome by separate seating arrangements for those permitted to use mobile devices), and  
  • sensitive or excluded evidence being immediately published to the wider public without pause for reflection on the ramifications for the fair and just hearing of the matter.

For the moment, there is no easy answer. Australian Courts and legislators are watching developments overseas with interest. In particular, and following the interim guidance note, the Judiciary of England and Wales has commissioned a public consultation in respect of the use of live, text-based forms of communications from Court for the purposes of fair and accurate reporting. The questions posed as part of the consultation are as follows:

  • Is there a legitimate demand for live, text-based communications to be used from the Courtroom?  
  • Under what circumstances should live, text-based communications be permitted from the Courtroom?
  • Are there any other risks which derive from the use of live, text-based communications from Court?  
  • How should the Courts approach the different risks to proceedings posed by different platforms for live, text-based communications from the Court?  
  • How should permitting the use of live, text-based communications from Court be reconciled with the prohibition against the use of mobile telephones in Court?  
  • Should the use of live, text-based communications from Court be principally for the use of the media? How should the media be defined? Should persons other than the accredited media be permitted to engage in live, text-based communications from Court?

The consultation closed on Wednesday, 4 May 2011 and is expected to report later this year.

Australian Courts and legislators are monitoring the developments in the UK with interest.