New technology has made the application of law and ethics complicated, where everyday users of the media today have the same responsibilities as the big media players. “Advances in communication technology in this new millennium have redefined the ways most of us share news and information” (Pearson, 2019, p. 4). The intertwined legal and ethical issues in this situation include defamation, intellectual property, contempt and court publishing, confidentiality, privacy, discrimination and freedom of speech. In the process of ethical questioning, there is a duty of public responsibility when it comes to open justice and the disruption of court proceedings.
Instead of obtaining information about our legal system from going to court, most people now hear about the legal system from the mass media. A 2003 survey showed that “personal experience” came below television, newspapers and tabloids as a source of knowledge about the criminal justice system (Page, Wake, & Ames, 2004). Journalist Kate McClymont tweeted evidence during an ICAC hearing and observed that “There are witnesses who are sitting outside who are not meant to know what evidence is being given. Is this going to have an impact on the course of justice by tweeting the minutiae of what is happening in within the courtroom?” (Hemphill, 2013). Not only does this raise questions about the law, but it also points us to another huge media issue right now — open justice.
Twitter is problematic in court because it has the potential for distraction and disruption to the appropriate atmosphere of the court. In terms of open justice, the law of defamation is conjectured to protect people’s reputations from unethical intervention. In practice, its main effect is to hinder free speech and defend influential people from scrutiny. Jeremy Gans attended Victoria’s Supreme Court in 2017 and discovered that only accredited journalists may use electronic equipment, however members of the public needed to seek permission from the trial judge for the use of electronic equipment in Court (Gans, 2017). We are all publishers in the eye of the law when we post on social media, but journalists are typically provided different privileges in court as professional communicators. It is a more difficult task, however, to educate the broader community about social media legal risks.
There is a duty of public responsibility for everyday producers of media, and it is a privilege that communication in Australia is freer than that in many other societies. Pearson states how “abuse of that freedom can erode it for others, who may want to use it for the greater public good” (Pearson, 2019). All individuals should have greater accountability not only for self-protection for legal implications but also credibility in the eyes of the digital space.
Tweeting from court negatively impacts the administration of justice. In essence, access by witnesses to real-time posting about a trial may taint testimony and undermine fairness. With technology today, smartphones allow users to publish media whenever they want, posing problems for ordinary members of the community tangled up in media laws. Courts can no longer protect themselves from the surge of social media. The principal problem is the perception that members of the public may say or do something which implies holding a particular point of view.
AUSPUBLAW. (2015, August 6). Social media and the courts. Retrieved from https://auspublaw.org/2015/08/social-media-and-the-courts/
Page, B., Wake, R. and Ames, A. (2004) Public Confidence in the Criminal Justice System, Research Findings №221, London: Home Office.
Hemphill, B. (2013, May 16). Journalist use of social media in court an issue. Retrieved from https://mumbrella.com.au/journalist-use-of-social-media-in-court-an-issue-155942
Pearson, M. & Polden, M. (2019). The journalist’s guide to media law (6th edition) (pp. 3–27). Sydney: Allen & Unwin.
Gans, J. (2017, June 27). News: Live tweeting the High Court. Retrieved from https://blogs.unimelb.edu.au/opinionsonhigh/2017/06/27/news-live-tweeting-the-high-court/
Gibson, J. (2017). Should judges use social media? Retrieved from http://www.districtcourt.justice.nsw.gov.au/Documents/Should Judges use social media.pdf