Use of social media in courts has potential - and pitfalls

LEGAL OPINION:IN FEBRUARY, a UK High Court judge allowed service of a document via Facebook in circumstances where it was proving difficult to locate a party. This was replicated soon afterwards in this jurisdiction, bringing into sharp focus the advantages and challenges posed by modern media for the courts.

The old certainties of traditional media are gone. Once something is “out there” via social media, it remains so for ever. A 2010 survey of state and magistrates’ courts in the US found one third of courts used social media as a means of communicating. Half said they felt judges participating in social media in a professional capacity might compromise their ethical standards. A balance now needs to be struck between the need for open courts and maintaining fair trials.

The ongoing challenges in the economic environment, reduced readership and changes in the operations of traditional print media put at risk the courts’ reliance on them to connect to the public. There has been a real change in how the public now receives information.

The central problem would seem to be that courts are institutional and focused in direction, whilst new media are decentralised and multidirectional – at times all over the place. Courts can be very cloistered in maintaining their independence, whereas new media is personal and intimate. Courts are also text-based, while new media avail of images, sound and video.

Live “tweeting” is akin to broadcast – it is sent with no delay, there is no taking it back, and no limits to dissemination. But what if soon after a courtroom tweet, a judge rules something inadmissible, or to be ignored by the jury, or is patently shown to be a lie? In the UK, guidelines effectively limit the use of Twitter to accredited media, who apply to use it and who are familiar with the court process and the consequences of endangering it. It can only be a matter of time before we face an issue here for rules of court in this area.

A bigger problem lies in how to treat use of social media by jurors during trials. Judges must be ever-vigilant of outside influences on jurors. Much of “new and social media” have no history, conventions or appreciation of laws of court and contempt. It is the “Wild West” of the communications community, with infinite amounts of at-times uncurated, unmoderated and unedited “information” put out there regarding every subject and person. It in effect allows everyone to “broadcast” almost instantaneously.