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New media on trial

Feature Articles

Cite as: March 2014 88 (03) LIJ, p.28

Rules regarding the use of social media in Victorian courts and tribunals vary and all are subject to judicial discretion. 

By Kerry O’Shea

The use of social media to communicate real time information about the work of the courts and tribunals is a relatively new phenomenon. It is generally accepted that the first case to allow live tweeting of proceedings was the copyright case, Roadshow Films Pty Ltd v iiNet Ltd in the Federal Court in 2009.

Justice Cowdroy said: “I understand this is the first Australian trial to be twittered or tweeted. I granted approval for this to occur in view of the public interest in the proceeding, and it seems rather fitting for a copyright trial involving the internet” (http://tinyurl.com/kf9gog8).

Interestingly, when the case went to the High Court, no live tweeting was allowed (http://tinyurl.com/mwq7wlx).

Each court and tribunal has individual rules and/or guidelines about the use of social media from within courtrooms. The penalties for a breach of the rules are potentially severe.

In 2011, academic and journalist Margaret Simons was told by a magistrate to stop live tweeting a hearing. Magistrate Peter Mealy warned the media at a subsequent day’s hearing not to use Twitter in his courtroom.

“It will be contempt if it does occur from this court,” Mr Mealy said (http://tinyurl.com/62u3vnw).

Broadly, criminal court proceedings, particularly those that involve a jury (County or Supreme Court) or could result in a jury trial (Magistrates’ Court of Victoria) are much more sensitive about the risk of affecting the administration of justice by live tweeting.

All courts and tribunals in Victoria now have media or public information officers, and it is wise to check with them or the court website before live tweeting proceedings. Most also have electronic devices policies available on their websites.

One thing to consider is that generally courts will have a policy that covers accredited journalists, as they are expected to have an understanding of court proceedings, legislative requirements and suppression orders. However, this will not necessarily apply to others, such as lawyers wishing to use social media from inside a courtroom.

“Citizen journalists” or lawyers who wish to blog or tweet, usually need to seek permission in advance from the trial judge for the use of electronic equipment in court.

Whatever the court or tribunal policy on social media is, it is subject to judicial discretion. So an individual judge may prohibit the use of electronic equipment in court in a particular matter, even if it is generally allowed in that jurisdiction.

The Communication Law Bulletin has outlined some risks to those wanting to use social media in court proceedings. These are particularly pertinent in criminal cases, jury trials or family law. (Communications Law Bulletin Vol 30.3 Dec 2011 (http://tinyurl.com/pywbdwq). These risks include:

  • live reporting of evidence that is later contradicted or ruled inadmissible (sensitive information emerges without it being immediately apparent and the judge then asks the media to keep it out of reports);
  • witnesses seeing reports of testimony of other witnesses, thereby allowing them to amend their evidence;
  • jurors accessing reports of evidence that may not be admissible;
  • if evidence is damaging to the reputation of individuals or companies, and later contradicted or ruled inadmissible, damage has already been done.

Here is a guide to courts’ social media rules covered under electronic devices policies.

High Court: Does not allow the use of electronic devices. Started public audio-visual hearings from 1 October 2013, however these are made available a few business days after hearings (http://tinyurl.com/knm74n9 and http://tinyurl.com/o7mokrg).

Federal Court: Does not have a policy on the use of electronic devices, however it is generally allowed. (www.fedcourt.gov.au/attending-court/communication-devices).

Family Court of Australia: Has a policy on the use of its Twitter account but does not have a policy on tweeting live from the courtrooms. Due to publishing restrictions under the Family Law Act, journalists and practitioners would need to obtain approval to tweet from the courtroom (http://tinyurl.com/ocktx4j).

Federal Circuit Court of Australia: Does not have a formal policy on tweeting from its courtrooms. Due to publishing restrictions in the court’s family law jurisdiction, journalists and practitioners would need to obtain approval to tweet from the courtroom.

Fair Work Australia: Generally allows use of mobile devices in hearings at the discretion of the Member (http://tinyurl.com/mt5zerp).

Supreme Court of Victoria: Uses and generally permits the use of social media subject to the views of the trial judge. Policy is being reviewed to clarify guidelines for accredited journalists and “citizen journalists”. It was the first court to use Twitter (http://tinyurl.com/mlk76p7).

County Court of Victoria: Accredited media may use electronic devices for filing stories, blogging or tweeting, subject to a contrary order by the presiding judge. In jury trials, this is only permitted for verdicts and sentences. Others wishing to use social media, including “citizen journalists”, need to seek permission from the trial judge. (http://tinyurl.com/mtktgpv).

Magistrates’ Court of Victoria: Prohibits the use of electronic devices where such use constitutes instantaneous publication, for example social media such as Twitter or live blogging (http://tinyurl.com/kq2tr7t).

VCAT: Prohibits, without leave of the tribunal, use of electronic devices where such use constitutes instantaneous publication, for example social media such as Twitter or live blogging (http://tinyurl.com/q8j7jch).



KERRY O’SHEA is the strategic communications manager at the County Court of Victoria.

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