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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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South Australia’s antiquated sex ID law

By MARK PEARSON

Media coverage of the arrest of a prominent South Australian politician on sex charges and its political fallout on April 22 made a mockery of that state’s outdated suppression of the names of people accused of sexual crimes.

It also highlighted the difficulties faced by the mainstream media attempting to comply with the law while their online competitors in social media and the blogosphere named and shamed the accused with gay abandon.

The state’s newspapers performed layout and design gymnastics as they attempted to tell their readers very different stories on different pages – one about the arrest of an anonymous politician on child pornography charges and another on the important matter of personnel changes in the South Australian parliament.

On Tuesday, May 3, South Australian Premier Mike Rann conceded the restrictions might be a little antiquated when he announced an independent review of the 35 year old law banning the identification of the accused in major sex crimes – or even coverage of preliminary proceedings – until after they have been committed for trial. (See http://bigpondnews.com/articles/TopStories/2011/05/03/Child_sex_offenders_not_for_parly_-_Rann_608425.html )

South Australian and Queensland laws keep the accused’s identity secret until later in the criminal process. In South Australia, the identity restriction extends to a ban on any coverage of the preliminary proceedings of a major sexual offence until the accused person has been committed for trial or sentence (Evidence Act 1929, s. 71A). In Queensland, the preliminary proceedings can be reported, but the identity of the accused must remain secret until after they have been committed for trial (Criminal Law (Sexual Offences) Act 1978, s. 7).

The laws differ from those in other Australian states and territories where only the identity of the victim is suppressed. There, the accused in a sexual crime can be identified unless their identity might lead to the identification of the victim or unless a judge or magistrate decides to suppress the identity on other public interest grounds.

These restrictions did not even work very well in earlier times. Queensland media had to suppress the name of former Opposition Leader Keith Wright when he faced sex charges in 1993, while competing outlets in other states were able to name him. It meant residents in the NSW border town of Tweed Heads could read about Wright and see his photo while just a minute’s drive away in Coolangatta Queenslanders could only read about ‘a politician’.

Today’s communications defy state borders and the postings of bloggers and social media users make a mockery of state-based laws to the disadvantage of traditional media. The result is that the identity of the arrested South Australian politician has become widely circulated on the Internet, but newspapers and broadcast media in that state have been forced to comply with an outdated law.

Journalists face a $10,000 fine if they identify the person and their companies can be fined up to $120,000, the same penalties they would face if they identified the victim.

When the accused person is a politician there is the added important public interest element in citizens’ rights to be fully informed on political matters. This must surely outweigh other considerations, particularly when most other jurisdictions allow the identification of accused in such circumstances.

The South Australian example demonstrates it is just a bad law when almost everyone knows the identity of this accused politician but the mainstream media is gagged from stating it. That is unhealthy for both justice and democracy.

Now that South Australia is making the first moves towards reform, Queensland legislators should follow suit so that state does not become the suppression laggard of Australian jurisdictions when the next Keith Wright comes along.

Further information: AdelaideNow http://www.adelaidenow.com.au/news/south-australia/identity-secrecy-guards-possible-victims/story-e6frea83-1226043119942

ABC PM program http://www.abc.net.au/pm/content/2011/s3206817.htm

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