The potential of social media in relation to legal proceedings was perhaps nowhere greater realised as during the trials of South African sprint runner Oscar Pistorius. With journalists providing minute by minute updates by tweets, people the world over felt as though they were actually in the courtroom. However, journalists’ use of social media to report court proceedings is not without controversy.  Some commentators believe that journalists should not be able to cover court proceedings via Twitter. And others wonder why, in a world saturated by social media, where almost anything is fair game, we are even discussing it?  If you would like information about whether journalists can cover court proceedings via Twitter, this article explains the legal position in Australia and the significance of the discussion itself.

Twitter in Court Proceedings

In Australia, the short answer to this question is: it depends on where you are. There exists no national approach to journalists tweeting court proceedings.

If you are a journalist in a South Australian Court, the answer is a qualified yes. Journalists can tweet a verdict or judgment immediately. If the tweet concerns a submission, proceedings or evidence in a trial, they must wait 15 minutes in case a court suppresses particular material. Journalists in Western Australian courts can also tweet from the courtroom.

In Queensland, journalists can use electronic devices and social media to report court proceedings provided they not interrupt proceedings. However, judges have the right to prohibit the use of social media and electronic devices in the court.

In NSW, journalists are also able to cover court proceedings via Twitter.  Although the Courts and Other Legislation Amendment Act 2012 (NSW) amended the Courts Security Act 2005 (NSW) to prohibit the unauthorised use of any electronic devices (including phones) to transmit noise, sound or information from a court proceeding, it specifically exempted journalists and legal practitioners. The Act attracted controversy in its original form. Lawyers feared that it would prevent them using their phones while in court to contact colleagues. For their part, journalists perceived that the legislation unnecessarily intruded on the principle of open justice. After amendments that satisfied both groups, the Parliament made the Act law. However, while journalists can tweet court proceedings, a presiding judge always has the right to prohibit electronic transmissions from the court.

Check a Court’s Policy

As there is no national consensus on tweeting judicial proceedings, journalists must always check a court’s policy before proceedings begin. They can approach the court registry for information or a court officer. Court websites also have valuable information.

Of course, even if tweeting is permissible, journalists are still obliged to observe all their usual legal obligations concerning court reporting. That means their reporting – including any tweets – can never be in contempt of court.  Contempt of court is a serious and complicated legal issue. Journalists can find information on what is considered contempt of court on state government websites. For example, the NSW Department of Justice provides useful general information for journalists on this issue. Also, journalists must usually be accredited before being able to use social media in court.

Open Justice

The discussion about tweeting court proceedings matters because it is a debate about how to balance two important legal issues: the principle of open justice and the need to protect the integrity of court processes.

The principle of open justice means that all court proceedings are public and accessible to the public. In that context, journalists are essential in enabling the wider community to know what is happening in a courtroom.  Open justice is as important as an independent judiciary in a democracy. It prevents secret trials and the arrest of citizens for contravening unknown laws.

Protecting the integrity of the court process is essential. If this does not happen, the justice system cannot operate fairly. That raises serious ethical questions. Further, costs can rise as judges dismiss juries and abort trials and parties seek retrials.  For example, an instantaneous tweet may reach an important witness outside of the court who has not yet given evidence. If it does, their evidence might be unduly influenced, affecting the fairness of the entire trial. The judge may abort the trial and order a retrial ordered.  Citizens must pay the costs of the first and second trial. Moreover, it increases the burden on an already busy justice system. Instantaneous tweeting could also be dangerous. If a judge suppresses a witnesses’ identity for their own safety but a journalist has already tweeted it, they could be at risk.

The question of tweeting court proceedings need not be a definitive no or an unqualified yes. Given the significance of the issue, any resolution requires balance. Of course, courts and legislators already know this. That is why there are often time delays placed on tweets by journalists and why judges can always prohibit the use of social media.  Journalists too are aware of their responsibilities in reporting court proceedings using social media.

If you need advice on this issue, speak with a legal professional. They can offer advice tailored to your situation. Contact LegalVision’s lawyers to assist you. Questions? Call us on 1300 544 755.

Carole Hemingway

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