{"id":7721,"date":"2013-08-08T00:21:28","date_gmt":"2013-08-07T14:21:28","guid":{"rendered":"http:\/\/nofibs.com.au\/?p=7721"},"modified":"2022-05-02T00:20:18","modified_gmt":"2022-05-01T14:20:18","slug":"bloggers-beware-social-media-and-the-courts","status":"publish","type":"post","link":"https:\/\/archive.nofibs.com.au\/bloggers-beware-social-media-and-the-courts\/","title":{"rendered":"Bloggers beware: law uneasy about citizen journalists and court reporting"},"content":{"rendered":"

\"chief<\/p>\n

By No Fibs legal reporter Joan Evatt<\/a><\/p>\n

August 7, 2013<\/p>\n

On July 1 this year the NSW government\u2019s amendments to the NSW Court Security Act (2005) became effective as law. It is the government\u2019s first real attempt to come to terms with the growth of social media and its impact on the law.<\/p>\n

The media has historically played a critical role in the \u2018open justice\u2019 principle of the law. Its role has been the public\u2019s eyes and ears in any court proceedings. Now that the mainstream media is in such financial and structural disarray, that role has been compromised. \u2018New media\u2019 or \u2018social media\u2019 has started to fill the void left by the inability of the mainstream media to adequately and appropriately cover the courts.<\/p>\n

It\u2019s been deemed necessary for the law and its institutions to get its head around \u2018new media\u2019 and \u2018social media\u2019, or rather the technology that drives it.<\/p>\n

There are a number of reports from research projects that have raised broad areas of concern about the growth and use of social media platforms and its impact on the courts and their ability to do their job without the administration of justice process being compromised.<\/p>\n

A recent report prepared for the Victorian Department of Justice by a number of very well regarded academics looked at juries and social media\u00a0in particular.<\/p>\n

An article in the current Judicial Officers\u2019 Bulletin <\/a>(Vol 25, Issue 6) gives details of the findings of the Judicial Commission of NSW\u2019s first embryonic research project looking at the impact of and general concerns about the increasing use of social media in court.<\/p>\n

The report, delivered in February, identified 20 areas of concern, laid out in descending degrees of importance:<\/p>\n

1. Juror misuse of social media (and digital media) leading to aborted trials.
\n2. Sub judice issues\/breach of suppression orders (by tweets, Facebook or other social media), that \u201cgo viral\u201d, and the difficulties associated with enforcement of restraining orders.
\n3. Increased risk of cyber stalking\/opportunities for invasion of privacy or intimidation\/bullying of the private lives of court case participants, including victims, jurors, judges, workers.
\n4. Misrepresentation of court work and activity to a community that may not understand the processes or issues involved\/rapid spread of misinformation about trial processes and courts.
\n5. Disclosure of information to witnesses or others waiting outside court.
\n6. Difficulty in testing authenticity and credibility of social media journalism\/lack of verification of social media publications.
\n7. Need to educate judges, court staff, the public and media. Risk of disenfranchisement of people and institutions that do not use social media.
\n8. Using social media to communicate court decisions and engage with the community.
\n9. Improper recording of court proceedings, confidential matters, evidence.
\n10. Defamatory statements that \u201cgo viral\u201d on social media, creating the spectre of increased litigation.
\n11. Using social media to enhance court procedure (eg service via Facebook).
\n12. The use of social media posts as relevant evidence.
\n13. Difficulty in ascertaining ownership of information sources on social media.
\n14. Public expectation that courts will adopt social media quickly\/effectively.
\n15. Impact of social media on court orders, including orders relating to social media use, jury directions, sentencing.
\n16. Social media can be distracting in court\/potential for disruption of court activity.
\n17. Whether to have central control of court communications.
\n18. Need for information technology systems\/staff to
\nsupport social media (lack of resources for social media officers).
\n19. Failure of courts to use social media affects timeliness of news.
\n20. Locating the origins of the user\/tweeter\/contributor.<\/b><\/p>\n

The amendments to the NSW Court Security Act (2005) are the state government\u2019s first real piece of legislation to regulate social media to nullify its impact on the ability of the courts to do their job properly, to safeguard the principle of the \u2018administration of justice\u2019 and how that process can remain untainted by the growth and impact of social media.<\/p>\n

The new amendment, Section 9(A), is a prohibition on the \u2018unauthorised transmission of court proceedings from the courtroom\u2019.<\/p>\n

\u201cSECTION 9A. Prohibition on unauthorised transmission of court proceedings from courtroom<\/b><\/p>\n

(1) 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:
\n(a) by transmitting the sounds, images or information to any person or place outside that room or other place,
\n(b) by posting entries containing the sounds, images or information on social media sites or any other website,
\n(c) by otherwise broadcasting or publishing the sounds, images or information by means of the Internet,
\n(d) by otherwise making the sounds, images or information accessible to any person outside that room or other place,
\nwhether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both).<\/b><\/p>\n

Maximum penalty: 200 penalty units or imprisonment for 12 months (or both).\u201d
\n<\/b>
\nJournalists, doing their job, for the purposes of a media report on the proceedings concerned, are exempt from these restrictions under Section 9B.<\/p>\n

Journalists are defined under Section 4 of the Act as a<\/p>\n

\u2018\u2026 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\u2019,<\/b><\/p>\n

and a media report is defined as being<\/p>\n

\u2018\u2026 an article, program or other report for publication in or broadcast on any of the following:
\n(a) a newspaper, magazine, journal or other periodical,
\n(b) a radio or television broadcasting service,
\n(c) an electronic service (including a service provided by the Internet) that is similar to a newspaper, magazine, radio broadcast or television broadcast\u2019.
\n<\/b>
\nThis amendment has primarily resulted from jurors, witnesses and others texting, \u2018facebooking\u2019 or tweeting evidence and other information to those outside the courtroom. This is a serious problem worthy of concern as it poses a very real threat to the process, which needs to remain untainted if a fair trial is to be achieved.<\/p>\n

My obvious concern with the new amendment is the possibility to silence the \u201cmummy bloggers\u201d and \u201ccitizen journalists\u201d, which is fast becoming a pejorative, from reporting on court cases. It all gets down to the definition of \u201cproperly accredited\u201d journalists.<\/p>\n

The last six words of Section 9A(1)(d)\u00a0\u201c\u2026 whether that transmission, posting, broadcasting, publishing or other conduct occurs simultaneously with the proceedings or at a later time (or both)\u201d<\/b>\u00a0 leave open to apply these new restrictions to bloggers or citizen journalists who report or comment on the case and aren\u2019t deemed to be accredited journalists.<\/p>\n

The\u00a0Judicial Officers\u2019 Bulletin<\/a>\u00a0report touches on bloggers, citizen journalists and members of the mainstream media. Assumptions are made about the knowledge of legal matters and the level of support supposedly still given to accredited journalists covering a legal matter and unavailable to the citizen journalist.<\/p>\n

\u201cSocial media empower anyone to be a publisher. \u2018Citizen journalists\u2019 \u2014 people formerly known as the audience who can now employ press tools to inform each other \u2014 tend not have any professional training in journalism or the law; it is unlikely that they would be aware of the law of sub judice contempt, defamation and other restrictions on freedom of speech. In addition, in a professional media system, checking takes place at multiple levels, by sub-editors, production editors and lawyers. In contrast, \u2018citizen journalists\u2019 do not have their work verified and are less likely to appreciate the legal constraints involved. Indeed, they may be unaware of the existence of these rules, believing instead that Australians enjoy free speech to say whatever they like about anything or anybody at any time. The rules of contempt are not exerting the chilling effect on speech that was traditionally regarded as necessary to ensure the due administration of justice\u201d\u00a0<\/b>(pp49-50).<\/p>\n

The report noted \u201cconcerns that journalists using social media (when contrasted to journalists in the mainstream or \u201clegacy\u201d media) lacked credibility. With the rise of \u201ccitizen journalists\u201d not everyone who reports on courts will be trained and experienced in this field.\u201d<\/b>\u00a0(p. 50)<\/p>\n

The judiciary and lawyers have long complained, often loudly and despairingly, about the standard of court reporting in the mainstream media. Their complaints include journalists who don\u2019t seem to have even the most basic understanding of how the justice system is structured, what its overall role is, what functions it performs, the limitations on journalists when a court is in session, the role court officials play, a basic understanding of the difference between civil and criminal cases, and between common and statutory law.<\/p>\n

Sometimes it just may be the \u201ccitizen journalist\u201d or the \u201cblogger\u201d who is better qualified to report and comment on legal matters. Long gone are the days when specialist journalists like Pamela Bornhorst for the ABC and Jennifer Falvey sat in a courtroom all day, every day for weeks covering the one case. These journalists were highly respected within legal circles for knowing their job and doing it well.<\/p>\n

The NSW Court Security Act (2005) amendments and reports as outlined in the Judicial Officers\u2019 Bulletin may be the first salvo in the genuine diminution of the principle of \u2018open justice\u2019. The concerns of the judiciary are understandable. But the arguments being used and the overall thinking is concentrated against the new technology rather than the underlying lack of knowledge of or understanding in the law by those outside the law especially the media when it comes to its role of reporting court proceedings. The concerns expressed by those in the law about social media are so similar to those arguments used when the Gutenberg printing press appeared on-line in Europe in 1450. It was going to be the end of the world.<\/p>\n

With this new technology the problem, ensuring the untainted administration of justice, is the same problem it has always been; the problem hasn\u2019t changed and suddenly morphed into something new. What has changed is the instant and far-reaching means of delivery.<\/p>\n

The system shouldn\u2019t be distracted by or only focus on the new technology. The courts have always had the capacity to take action to prevent and\/or penalise behaviour that threatens the justice system from doing its job.<\/p>\n

Suppression orders are preventative measures, and then there is a plethora of contempt laws, from scandalising the court to contempt sub judice that can be used. In recent times, the judiciary has rarely resorted to using the contempt measures. Suppression orders and contempt laws are still the first and only real line of defence from the attacks on the justice process.<\/p>\n

The judiciary needs to enforce the existing measures when suppression orders aren\u2019t met or contempt behaviour threatens the court\u2019s ability to do its job.<\/p>\n

Governments and the legal system need now to consider educational procedures for jurors, witnesses or those who report on legal matters, whether they are journalists or citizen bloggers. The ability of the courts to comment on, as well as insist on rectification when regulations and rules are breached, should be enhanced and pursued.<\/p>\n

Underpinning and strengthening the \u2018administration of justice\u2019 needs to be done, but not by dismantling the fundamentals contained in the principle of \u2018open justice.\u2019 A balance between the two is essential for a healthy democracy.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

By No Fibs legal reporter Joan Evatt August 7, 2013 On July 1 this year the NSW government\u2019s amendments to the NSW Court Security Act (2005) became effective as law. It is the government\u2019s first real attempt to come to terms with the growth of social media and its impact on the law. The media […]<\/p>\n","protected":false},"author":29,"featured_media":7754,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"jetpack_publicize_message":"","jetpack_is_tweetstorm":false,"jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false}}},"categories":[3434,3546,585,20,21,439],"tags":[1083,1084,633,1082,227,1085,1081,1086],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/archive.nofibs.com.au\/wp-content\/uploads\/2013\/08\/chief-justice-street-leads.png?fit=698%2C460&ssl=1","jetpack_shortlink":"https:\/\/wp.me\/p3t0mw-20x","jetpack_likes_enabled":false,"jetpack-related-posts":[],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/7721"}],"collection":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/users\/29"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/comments?post=7721"}],"version-history":[{"count":1,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/7721\/revisions"}],"predecessor-version":[{"id":56448,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/posts\/7721\/revisions\/56448"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/media\/7754"}],"wp:attachment":[{"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/media?parent=7721"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/categories?post=7721"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.nofibs.com.au\/wp-json\/wp\/v2\/tags?post=7721"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}