By MARK PEARSON Follow @Journlaw
A search of the Australasian Legal Information Institute (Austlii) database offers some interesting insights into the use of social media terminology in the courts.
Legal scholars know that an Austlii search is not a flawless indicator, but it remains one of the best tools available to us.
My search on March 2, 2013 reveals the following insights into the Australian courts and the use of social media terminology.
The venerable justices on the High Court have yet to use the terms “social media”, “Facebook” or “Twitter” in a judgement.
However, transcripts of High Court proceedings reveal some gems.
The honour of being the first High Court justice to use social media terminology appears to go (quite appropriately) to then Chief Justice Murray Gleeson who famously asked on May 16, 2008: “Are you responding to the argument that I just mentioned by saying that if these two people had individually decided to post their statements on their respective Facebooks they were perfectly entitled to do so?”
He was querying counsel in State of NSW v. Jackson  HCATrans 193 – a dispute over whether a student teacher’s written statement after a school gym accident could be withheld from release under client legal privilege.
Justice Susan Kiefel was the first to use the word “Twitter” in the High Court – while hearing submissions in the 2011 free political speech case of Wotton v. State of Queensland on August 2, 2011.
Her Honour was questioning how the appellant might seek to communicate his views to the media: “But he could do it by telephone, could even Twitter,” she stated.
The term “social media” was also used by counsel in that case.
The only other case recording related words being spoken before the High Court was the mention of both “Twitter” and “Facebook” by Guy Reynolds SC in David v. Abdishou  HCATrans 253 on October 5, 2012.
It formed part of a query about whether the test of ‘publication’ should remain the same in social media, but the application for leave to appeal was unsuccessful.
It would be a worthwhile research project to examine the frequency of mentions of social media terms across all courts listed in the Austlii database, along with a content analysis of the situations in which they arose.
My preliminary search across all case law databases (courts and tribunals across the nine jurisdictions) revealed 604 mentions of the term “social media”, 75 mentions of “Facebook”, 73 mentions of “Twitter” and 41 mentions of “MySpace”.
The contexts seemed to range widely, including the following:
- social media material used as evidence in criminal trials and compensation claims
- applications for injunctions prohibiting the use of social media for a range of reasons (confidentiality, defamation, consumer law, breach of parole conditions etc)
- orders that certain announcements be posted to social media sites
- concern about jurors and witnesses viewing social media sites
- use of social media in the court room.
It is a fascinating field, and I welcome your comments below.
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.