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Media law for local government communications officers

By MARK PEARSON

A host of media laws might arise in the work of local government communications and media relations personnel, as I explained to a team from a large council recently.

With councils hosting inquiries and debates among ratepayers on social media platforms, and some even publishing their own news products to supplement a weaker suburban and regional media sector, they are facing many of the same media law risks that journalists encounter in their work.

These include defamation, contempt, breach of confidence, privacy, freedom of information/right to information, intellectual property and discrimination laws among others.

Yet while the news media have been described by some as “not just another business” because of their Fourth Estate role in a democracy, councils are clearly “not just another publisher” because of the special role local government plays in our political system.

A news organ published by the communications department of a local government body faces epistemological questions about their purpose and responsibilities which, in turn, feed into media laws and their defences.

A central question is: “Whose interests should come first, the citizen-ratepayer’s or the council’s?”

The reality is that most topics covered – such as extended library hours and the Carols in the Park coverage – would not trigger a dilemma here.

But push comes to shove when citizens are strongly critical of a council, its officers or its elected representatives over a decision or a proposal.

This is where the editor of any council-owned news organ and the moderator of comments on its social media feed face this fundamental dilemma over who is their real master – which in turn can feed into their position on several media law issues, most notably about whether defamation defences might be defeated by a lack of good faith or a perceived bias.

But there are also fundamental issues over the extent to which councils can shackle both the common law right to free expression and of course the implied freedom to communicate on matters of politics and government – both clarified in relation to local government bylaws by the High Court in Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1.

While that case found Adelaide Council’s restrictions on preaching in Rundle Mall were a reasonable restriction on those freedoms, the decision prompts questions about other restrictions some councils may exercise upon their staff and elected officers.

Some, for example, have banned councilors from speaking publicly against decisions of their councils by narrowly interpreting some provisions of local government acts.

Early in 2017 the Redland City Council in Brisbane was criticized by the Queensland Ombudsman for threatening two citizens with defamation action over alleged defamatory comments about council, council officers and the Mayor, Karen Williams on social media websites. Legal letters from the Council demanded the complainants remove their comments and post apologies. The Ombudsman concluded the threats were not a reasonable or proportional response to what was relatively minor criticism of council’s decisions and were an unreasonable expenditure of public funds. He recommended training for councils in defamation law.

There are many other areas of the law beyond media laws that are likely to impact on local government media relations and communications personnel – both because of their public relations role and because of their function as part of the third tier of government.

These might include contract law, negligence, professional liability, HR law, whistleblower legislation and a host of regulations and common law obligations over transparency in council processes.

The recommendation by Queensland’s Ombudsman that council officers need training in defamation could well be extended to numerous media laws and several other legal and regulatory restrictions.

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.

© Mark Pearson 2017

 

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The courts and social media: what do judges and court workers think?

By MARK PEARSON

Another article by our collaborative Courts and Social Media research team has been published – this time in the Judicial Officers’ Bulletin (Published by the Judicial Commission of NSW).

A hearty thanks to my colleagues – Patrick, Jane, Sharon and Anne – for your collaboration! It is a team of academics from four universities – Bond, Griffith, Monash and Edith Cowan – proving that worthwhile research can defy institutional and geographic boundaries.

The citation is:

Keyzer, P., Johnston, J., Pearson, M., Rodrick, S. and Wallace, A. (2013). ‘The courts and social media: what do judges and court workers think?’ Judicial Officers’ Bulletin, 25 (6). July 2013: 47-51.

JudicialArticleThe full pdf of the article can be viewed here at the site of the Centre for Law, Governance and Public Policy at Bond University, but here is the introduction to give you a taste for it:

“Social media” is a collective term for a group of internet-based applications that allow users to create, organise and distribute messages, pictures and audio-visual content.[1]  Generally speaking, social media is characterised by its accessibility, participatory culture and interactivity.[2]  Social media can be “two way” (allowing conversations characterised by varying degrees of publicity, depending on the privacy settings selected by the contributor) or “one way” (allowing publication of information, but not permitting comment).[3]

Social media have created intense challenges for the law and judicial administration.[4] Traditionally, the courts have employed the law of sub judice contempt  to prevent prejudicial publicity, to protect the right to a fair trial, and to ensure the due administration of justice. Courts also have the option of making non-publication orders about cases.[5]  However, social media applications have dramatically increased the number of people who can publish material about court cases.[6]  Many of these “citizen journalists” are unaware of the legal rules that restrict what they can publish.[7]

At the same time, social media have created unprecedented opportunities for the courts to engage with journalists and the wider community.[8]

This article reports on the findings of a small research project conducted in February 2013 with 62 judges, magistrates, tribunal members, court workers, court public information officers and academics working in the field of judicial administration.  We acknowledge that there were no journalists present, and our findings therefore are skewed towards the legal profession. However, so far as we are aware, this is the first attempt to gauge the opinions of some key stakeholders on the issues in this area.  We intend to follow up this pilot project with more research to build on our findings.

After describing our research methodology, we outline the findings and offer our brief reflections.


[1]                 T Bathurst, “Social media: The end of civilisation?” The Warrane Lecture, 21 November 2012, UNSW, Sydney, p 7; A Kaplan and M Haenlein, “Users of the world, unite! The challenges and opportunities of social media” (2010) 53(1) Business Horizons 61.

[2]                 P Keyzer, J Johnston, G Holland, M Pearson, S Rodrick and A Wallace, Juries and Social Media, Centre for Law, Governance and Public Policy,  a report commissioned by the Victorian Department of Justice on behalf of the Standing Council on Law and Justice, 16 April 2013, [1.2], <www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juries%20and%20social%20media%20-%20final.pdf> accessed 20 June 2013.

[3]                 Privacy Victoria, “Social Networking, Information Sheet 04.11, September 2011, at <www.privacy.vic.gov.au/domino/privacyvic/web2.nsf/files/social-networking/$file/info_sheet_04_11.pdf> accessed 20 June 2013.

[4]                 For a discussion of these challenges, see: M Pearson, Blogging and Tweeting Without Getting Sued, Allen and Unwin, Sydney, 2012; P Keyzer, J Johnston and M Pearson, (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media, Halstead Press, Sydney, 2012.

[5]                 D Butler and S Rodrick, Australian Media Law, 4th edn, Thomson Reuters, Australia, 2011, ch 6.  There is also an increasing tendency of courts to make general non-publication orders rather than rely on people knowing and complying with the common law of sub judice contempt. In other words, courts are prohibiting by specific order what would be prohibited by contempt laws anyway.

[6]                 Juries and Social Media, above,  n 7, at [2.3].

[7]                 ibid.

[8]                 J Johnston, “Courts’ New Visibility 2.0”, in Keyzer, Johnston and Pearson, (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media, above, n 9.

© Mark Pearson 2013

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.

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When jurors go ‘rogue’ on the Internet and social media …

By MARK PEARSON

The term ‘rogue juror’ has been used widely and pejoratively to describe a range of juror actions running counter to judicial directions to restrict their inquiries and communications about a case to the court room and the jury room.

I was tasked with taking a close look at the phenomenon for our collaborative research project conducted recently to the Standing Council on Law and Justice via the Victorian Attorney-General and drafted a section around the following cases. Our full report – including elaboration on this material – can be viewed here. [Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University.]

While all such incidents involve jurors venturing beyond the courtroom in their communications during a trial, not all their actions are prejudicial to a trial and can be viewed on a continuum. At one extreme are serious transgressions such as a juror’s ‘friending’ of the accused on Facebook (as in was A-G v Fraill [2011] EWCA Crim 1570). At the other extreme are actions that still risk being counter-productive, but are far from ‘roguish’ behaviour and may well stem from a desire on the part of jurors to better perform their role. For example, jurors who search the Internet for definitions of terms they have been asked to consider are likely indulging in their normal method of research and inquiry and might consider such actions as fastidious rather than inappropriate. Between these poles on the continuum are a range of behaviours classified and exemplified here through recent cases in Australian and other jurisdictions.

In 2010 Reuters Legal, using data from the Westlaw online research service, compiled a tally of reported US decisions where judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. They identified at least 90 verdicts between 1999 and 2010 challenged over juror Internet misconduct. They counted 21 retrials or overturned verdicts in the 2009-2010 period (Grow, 2010).

The Law Commission (2012) (p. 62) identified at least 18 appeals in the UK since 2005 related to juror misconduct during criminal trials, some of which involved Internet access or social media use. The section below is an attempt to classify these types of cases, with examples, according to their level of potential prejudice to a trial, although this is not a perfect science and experts will inevitably differ in their opinions on this.

Jurors using social media to communicate with parties to the case

The most famous case of this type was A-G v Fraill [2011] EWCA Crim 1570, [2011] 2 Cr App R 21. Joanne Fraill, 40, was sentenced to eight months in jail by London’s High Court in 2011 for exchanging Facebook messages with the accused in a drug trial while she was serving on the jury. She also searched online for information about another defendant while she and the other jurors were still deliberating. All this went against clear instructions from the judge to jurors to stay away from the Internet.

In June 2010, the West Virginia Supreme Court of Appeals granted a new trial to a sheriff’s deputy convicted of corruption, after finding that a juror had contacted the defendant through MySpace. (Grow, 2010).

Jurors commenting on social media during the trial

Harvard’s Digital Media Law Project recorded the case of attorney Frank Russell Wilson who was suspended from the Bar for 45 days for blogging about a burglary trial while serving as a juror. He had failed to disclose to the court that he was a lawyer (California Bar v. Wilson DMLP 1/23/09) .

An erstwhile Californian Superior Court Judge was called for jury duty in a murder case, and proceeded to email 22 fellow judges with progress reports on his experiences.  His first e-mail stated:  “Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].”  (Sweeney, 2010).

A juror used his smartphone to send eight tweets from an Arkansas case brought by investors against a company manufacturing building materials. He tweeted: “oh and nobody buy Stoam [the building product].  Its bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.” (Sweeney, 2010)

Tweets from the handle @JohnnyCho in 2010 boasted the owner was in a jury pool in Los Angeles Superior Court. He posted: “Guilty! He’s guilty! I can tell!”  He was identified through his Twitter profile to be Johnny Cho, director of communications at a Los Angeles entertainment lighting company. The accused in the case was convicted and the court took no action against Cho (Grow, 2010).

Jurors commenting on blogs or social media after a trial has concluded

In Commonwealth v. Werner  81 Mass. App. Ct. 689 (2012) Appeals Court of Massachusetts, Plymouth, February 1, 2012 a variety of juror online behaviours were exhibited, including three jurors friending each other and two jurors posting comments to Facebook about their jury service. One also blogged about the case after the trial. The Appeals Court refused to set aside the conviction on this basis because of overwhelming evidence of the accused’s guilt.

Jurors using social media to seek responses or advice about the case 

A UK juror was dismissed from a child abduction and sexual assault trial after she asked her Facebook ‘friends’ to help her decide on the verdict. “I don’t know which way to go, so I’m holding a poll,” she wrote. This was discovered prior to the jury starting its deliberations  (Sweeney, 2010)

Jurors ‘friending’ each other on Facebook during trial

Retired Circuit Court judge Dennis M. Sweeney told the Maryland State Bar Association of an episode during the political corruption trial of Baltimore Mayor Sheila Dixon, over which he presided in 2009. Five jurors had ‘friended’ each other on Facebook and had mentioned the case in their postings, despite his explicit direction not to use Facebook (Sweeney, 2010). After he admonished them, a young male juror posted on his Facebook page, “F— the Judge.” Judge Sweeney said he asked the juror about the offensive comment and was told: “Hey Judge, that’s just Facebook stuff.” [Westlaw News & Insight website, 2010]

Given it is common behaviour among social media for people to ‘friend’ those with whom they interact in many situations, the challenge is for the courts to distinguish the often close relationships formed during an intense jury trial from other social contexts if they wish to establish juror duty as an exception to this common practice.

Jurors searching the Internet for information on the accused (“Trial by Google”)

The UK Attorney-General used the expression ‘Trial by Google’ in a recent speech to describe jurors’ use of Internet search tools and social media to conduct their independent investigations into a case (Grieve, 2013). He conveyed a dim view of the practice and cited instances where it had resulted in contempt convictions, including Attorney General v Dallas [2012] EWHC 156. There, a female juror was sentenced six months’ jail for contempt of court for conducting research on the Internet, including definitions of the word ‘grievous’ and a newspaper report of an earlier rape allegation against the accused, and had shared this with fellow jurors. The judgment [at http://www.bailii.org/ew/cases/EWHC/Admin/2012/156.html] provides an extended account of how the British courts brief juries about Internet use and manage transgressions.

A US District judge in Florida ordered the search of a former juror’s computer hard drive in 2013 after the juror revealed she had done Internet research each evening while hearing the federal criminal drug trial of reggae star Buju Banton. The order specifically asked whether the following words had been searched: “Pinkerton. Doctrine. Mark. Anthony. Myrie. Buju. Banton. Music. Reggae. Gun. Charge. Guilt. Verdict. Mistrial. Conspiracy. Cocaine. Narcotic. Drug. Possession. Hung. Jury.” The juror had told a newspaper: “I would get in the car, just write my notes down so I could remember, and I would come home and do the research.” (Ryan, 2013)

Jurors searching the Internet to better inform their role

In Benbrika v. The Queen [2010] [2010] VSCA 281(http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2010/281.html) the Victorian Court of Appeal affirmed trial judge’s (Bongiorno, J.) handling of a situation where jurors had used Internet sites including Wikipedia and Reference.com seeking definitions of terms related to the terrorism trial (definitions the judge said were not substantially different from those stated in court). The Appeal court said the trial judge had found that “it was distinctly possible that they had interpreted his directions as meaning that they should not seek information about the case, rather than using the Internet for more general purposes” (at para 199). They noted the important difference between this kind of search and searching for “information that is both inadmissible at trial, and prejudicial to the accused”, which might prompt the discharge of a jury  (at para 214).

However, in the US similar behaviour was enough for a Washington State Superior Court judge to declare a mistrial in a child sex case after a juror admitted researching on the Internet about witness coaching (Hefley, 2012).

Also in the US, Maryland’s Court of Special Appeals, overturned a murder conviction because a juror had searched Wikipedia for the terms “livor mortis” and “algor mortis” on and had taken printouts to the jury room, later discovered by the bailiff.  The juror did not consider the action wrong: “To me that wasn’t research.  It was a definition.” (Sweeney, 2010).

Jurors as citizens engaging in their routine social media behaviour during a trial

As social media becomes a part of everyday life, the courts are encountering the fact that ordinary citizens have adopted a routine use of social media which they carry into the court room. A visitor to the District Court in Sydney used a cellphone to take a photo of a family friend who was sitting in a jury panel – common social behaviour in other public places (Jacobsen, 2011). But she was charged with contempt and was fingerprinted, her phone was seized and she was granted bail but the charge was later dropped and signs were erected in the courthouse warning that no photography was allowed.

[Other cases of inappropriate access by British jurors include the following cited by the Law Commission (2012):  Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; Smith [2005] EWCA Crim 2028; Hawkins [2005] EWCA Crim 2842; Pink [2006] EWCA Crim 2094; Marshall [2007] EWCA Crim 35, [2007] Criminal Law Review 562; Fuller-Love [2007] EWCA Crim 3414; H [2008] EWCA Crim 3321; Thakrar [2008] EWCA Crim 2359, [2009] Criminal Law Review 357; White [2009] EWCA Crim 1774; Reynolds [2009] EWCA Crim 1801; Richards [2009] EWCA Crim 1256; Gibbon [2009] EWCA Crim 2198; Bassett [2010] EWCA Crim 2453; Thompson [2010] EWCA Crim 1623, [2011] 1 WLR 200; McDonnell [2010] EWCA Crim 2352, [2011] 1 Cr App R 28; Mpelenda [2011] EWCA Crim 1235; Morris [2011] EWCA Crim 3250; Yu [2011] EWCA Crim 2089; Starling [2012] EWCA Crim 743; Gul [2012] EWCA Crim 280, [2012] 3 All ER 83.]

References

Grow, B. (2010, December 8). ‘As jurors go online, US trials go off track.’ Reuters. Available: http://www.reuters.com/article/2010/12/08/internet-jurors-idUSN0816547120101208

Grieve, D. (2013, February 6). ‘Trial by Google? Juries, social media and the Internet. Speech by the Attorney-General at the University of Kent. Available: https://www.gov.uk/government/speeches/trial-by-google-juries-social-media-and-the-internet

Hefley, D. (December 12, 2012). ‘Juror’s ‘research’ forced mistrial in child rape case’, HeraldNet. Available: http://www.heraldnet.com/article/20121212/NEWS01/712129975?page=single

Jacobsen, G. (2011, September 8). ‘A quick click or two in court lands a young woman in the nick’, Newcastle Herald. Available: http://www.theherald.com.au/story/936338/a-quick-click-or-two-in-court-lands-a-young-woman-in-the-nick/

Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., and Wallace, A. (2013). Juries and Social Media. A Report Prepared for the Victorian Department of Justice. Centre for Law, Governance and Public Policy, Bond University. Available: http://www.sclj.gov.au/agdbasev7wr/sclj/documents/pdf/juries%20and%20social%20media%20-%20final.pdf

Krawitz, M. (2012). ‘Guilty as Tweeted: Jurors using social media inappropriately during the trial process’. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176634

Law Commission (2012). Consultation Paper No 209 Contempt of Court. Law Commission, London. Available: http://lawcommission.justice.gov.uk/docs/cp209_contempt_of_court.pdf

Ryan, P. (2013, March 5). ‘Judge wants to know if Banton juror typed any of these 21 words’. Tampa Bay Times. Available: http://www.tampabay.com/news/courts/criminal/judge-wants-to-know-if-banton-juror-typed-any-of-these-21-words/2107088

Sweeney, D.M. (2010). ‘The Internet, social media and jury trials: lessons learned from the Dixon trial’. Address to the litigation section of the Maryland State Bar Association, April 29, 2010. Available: http://juries.typepad.com/files/judge-sweeney.doc

© Mark Pearson 2013

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.

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Mapping social media use in courts – some text search gems

By MARK PEARSON

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 [2008] 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 [2012] 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.

© Mark Pearson 2013

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.

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