Anita Ramasastry

Twitter in the Court: How the WikiLeaks Controversy Brought the Micro-Blogging Service Into a UK Courtroom

By ANITA RAMASASTRY
Thursday, December 23, 2010

Ironically, it took the WikiLeaks controversy -- which itself involved momentous issues of openness and secrecy -- to bring greater openness to British courts. Late this month, during a bail hearing for WikiLeaks founder Julian Assange, Igor Judge -- the Lord Chief Justice of England and Wales -- published an interim guidance document that allows reporters to use the micro-blogging service Twitter in UK courtrooms.

The interim guidance arose from the Assange case because two judges hearing Assange's bail application had disagreed about the micro-blogging issue. On December 14, Justice Howard Riddle permitted journalists who were present in his courtroom to send out messages while he heard the case. Two days later, however, Justice Duncan Ouseley -- who was hearing the appeal of Justice Riddle's decision to grant bail -- ordered journalists in his courtroom to switch off all Blackberries, mobile phones, and computers.

Lord Judge's subsequent issuance of the interim guidance was groundbreaking news in the UK -- where courts ban cameras, television broadcasting, and even courtroom artists, who must leave the courtroom in order to create their sketches of the proceedings.

In this column, I will describe Lord Judge's ruling and examine why the UK is different from the US in terms of its courtrooms' openness to journalists. I will also argue -- elaborating on a point I presented in a prior column -- that more courts and judges in the US, as well as the UK, should allow journalists to use Twitter and other social-media services in the courtroom.

The UK Guidance Regarding the Use of Twitter in the Courtroom

As noted above, Lord Judge's interim court guidance document states that "live text-based communications," such as mobile e-mail and social media, can be used by reporters during hearings. Since the interim guidance was issued in advance of a planned public consultation, it is possible that the ultimate result that the courts will reach on this issue will be different. But for now, such communications are permitted.

In support of the result he reached in the interim guidance, Lord Judge pointed out that "[t]here is no statutory prohibition on the use of live text-based communications in open court." Yet he also noted that courts must balance the proper administration of justice with the need for openness in court proceedings.

In striking this balance, Lord Judge concluded that " the use of an unobtrusive, hand-held, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice." Accordingly, he concluded that "mobile phones, small laptops (e.g. notebooks) and other types of mobile devices may be used for the sole purpose of making live text-based communications of court proceedings."

Despite the Interim Guidance, Judges Still Retain Power Regarding the Use of Social Media in their Courtrooms

Notably, there is an exception to the interim guidance: UK judges may still prevent reporters and members of the public from e-mailing, texting, or using Twitter in the courtroom if they rule that their doing so poses a danger to the administration of justice or to the guarantee of a fair trial, or that their doing so is disrupting courtroom proceedings.

Moreover, the ban on making sound recordings in court and taking photographs remains in place; the interim guidance, by its terms, only covers "live text-based communications." Thus, simply because laptops with the capacity to record sound or save images may now be taken into a courtroom, does not mean they can be used that way.

The upshot is that reporters, bloggers and even members of the public will now, for the first time, be able to sit in courts and report in real time and post courtroom happenings online -- so long as they do so quietly, and so long as they have sought prior approval from the presiding judge. (Based on the interim guidance, it is up to individual judges to decide whether to restrict the use of social media such as Twitter to reporters, or to also allow it to those in the public gallery.)

In the interim guidance, Lord Judge also noted that criminal proceedings are where "the danger to the administration of justice is likely to be at its most acute," which suggests that such proceedings may be more likely than civil proceedings to be closed to social-media use (or at least to social-media use by non-reporters.)

The reason for the difference is the risk that witnesses who have not yet appeared in court may be apprised of what is happening in court through Twitter or other live feeds. For criminal proceedings -- where the stakes are especially grave -- this risk is particularly troubling.

However, it is worth noting that the same risk is also posed by reporters' stepping outside the courtroom to report on the proceedings -- perhaps with a delay of only a few moments between testimony and reportage.

Why Journalists in the UK Must Still Be Careful about Their Courtroom Use of Social Media

As news reports indicate, Lord Judge's interim guidance on micro-blogging is the most significant change in how court cases can be reported in the UK since the Contempt of Court Act in 1981 (which I'll refer to as "the 1981 Act"). Moreover, the 1981 Act and other aspects of UK law may affect how micro-blogging sites like Twitter can be used.

In part because the UK lacks a counterpart to the US's First Amendment, UK publishers and journalists are subject to much tougher libel and defamation laws than their US counterparts are. Such laws will likely make it especially hazardous for reporters to use micro-blogging sites like Twitter, where messages cannot exceed a fixed number of characters -- especially when the micro-blogging is done under time pressure, without much opportunity for editing, review, reflection, or self-correction.

UK law is demanding: To avoid contempt of court, journalists must remain balanced in their reporting as long as a case is ongoing, and must avoid saying anything that could sway the judge or jury either way. According to the 1981 Act, published reports of active court proceedings must be balanced, fair, and accurate, and cannot present "a substantial risk of serious prejudice to the administration of justice."

For journalists and publishers, moreover, contempt of court is a strict-liability offense: That is, the UK publisher or journalist can be held liable even if he lacked any intent to prejudice proceedings, and even if he did not know he was doing anything wrong.

In addition, the strict-liability rule makes no exceptions for micro-blogging. The Act defines a "publication" as being "any speech, writing or communication in whatever form which is addressed to the public at large or any section of the public." Thus, a "Tweet" or other electronic text communication that is aimed at a public audience may be considered a publication.

The contempt-of-court rules apply as long as legal proceedings are "active" (that is, underway). The court has the power to ban all reporters from the courtroom for the duration of a case, and the power -- in order to avoid "a substantial risk of prejudice to the administration of justice" -- to order the delay of the publication of any news account the court proceedings for a period the court deems necessary.

Judges may invoke this rule more often if they feel that the recurrent use of Twitter or mobile devices is leading to reporting that is less than fair or accurate, or that is somehow unduly prejudicing defendants. But if judges do invoke the rule, journalists can challenge the findings behind it, arguing that they do not fit the statute's requirements.

Journalists -- including micro-bloggers -- can also invoke the statute's defenses. For instance, the 1981 Act makes clear that a journalist who creates reports on a public court proceeding that are "fair and accurate, and contemporaneously published in good faith" cannot be held in contempt of court. However, it may be especially challenging to provide that a tweet is "fair and accurate." A tweet provides a short space in which to have to be fair: Must 70 characters be devoted to one side, and 70 to the other? A better rule, under the UK system, would look to the fairness of Twitter coverage over a period of time on the same subject. Finally, journalists cannot blog about only one side of a case, and ignore the other, under the UK rules.

Although the US Has Stronger Free Speech Protections Generally, the UK May Be More Advanced Now When It Comes to the Use of Twitter in Court

While the UK struggles with the rise of social media and mobile devices, US courts also face the same struggle. As I have noted in prior columns such as this one , US federal courts instruct jurors to avoid Facebook, Twitter and other social-networking applications, but the courts leave it to each individual judge to decide whether, in his or her courtroom, journalists can Tweet or blog from court. Relatively few federal courts have embraced Twitter, although last year, a federal judge in Kansas allowed a reporter to use the micro-blogging service to provide updates from a gang-related trial.

Ironically -- in light of the U.S.'s generally stronger free-speech protections -- the UK seems to be substantially ahead of the US when it comes to micro-blogging in the courtroom. Thus, if the US wants to keep its free speech climate healthy, its courts may want to consider keeping pace.


Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity and do not necessarily represent the views of any of her employers, past or present.

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