Bringing down the gavel on social media

Bringing down the gavel on social media

Any disruption to court proceedings caused by social media use could have major financial and reputational consequences for this country, argues Kyran Fitzgerald.

The presidents of our courts have just issued a direction limiting the use of data messaging and electronic devices during court proceedings.

The move comes amid growing evidence that inappropriate social communications are impinging on the running of the courts.

This is important. Any disruption in the administration of justice could result in huge cost, both financial and reputational, to the country.

Enforced retrials can end up costing taxpayers hundreds of thousands of euros and more.

Thwarted enforcement of the rules can put a question mark over the quality of our legal system.

Speaking at a conference on social media and the courts, Chief Justice Frank Clarke highlighted the dangers posed by the widespread use of instant messaging.

First, anybody can currently transmit a message from a courtroom during a hearing. Second, once something is ‘out there’ via social media, it remains so forever

He went on to point to “recent instances of inappropriate social communications in the Irish courts”.

These include “outrageous communications made by an online journalist during a high-profile murder trial”. The posts were removed only after the person concerned was threatened with jail.

It also included evidence being reported before it was found to be admissible or reportable. The evidence was adjudged, in a later ruling, to be not reportable. People being “rallied” from inside the courtroom via social media in an effort to sway the jury.

Bringing down the gavel on social media

Social media has transformed business and legal life in all sorts of ways. The courts, which rely on a sense of mystique and remoteness as a means of generating popular respect, find themselves particularly challenged by the new forms of instant communications.

Lawyers are somewhat traditional in outlook. Many were slow to come to terms with the arrival, in the Noughties, of instant communications on a pervasive scale.

This is no longer the case. The American Bar Association has calculated that at least 90% of its members have a

LinkedIn profile, with 40% on Facebook and more than one-quarter on Twitter.

Employment and labour lawyers are most active on social media (89%) followed by personal injury lawyers and litigators (84%). A similar trend is evident here.

Law firms have generated lots of new business in advising clients on how best to deal with the advent of social media in the workplace, or in helping them to deal with the consequences of failure to navigate the waves of social media-driven change.

Antoinette Vahey is an employment partner with solicitors Ronan Daly Jermyn (RDJ).

The use of LinkedIn by departing employees has been a particular source of concern, she suggests. Employers do not have proprietary rights to contacts gathered.

Some firms have sought to address this by means of restrictive covenants, though these must be proportionate and not too onerous from the point of view of the employee.

Employers have become savvier in their use of social media, she said. They access postings when claims are made against them.

In a lot of cases, they have been able to secure information for use where claims are made against them

In the workplace, bans on the use of the internet by employees are a thing of the past, thanks to the smartphone.

Among millennials, reliance on smartphones is universal. Any denial of access would hit satisfaction, productivity, and, perhaps, employee retention.

Excessive use of smartphones can be a factor in dismissal decisions, however. There is concern about the impact of phone addiction on productivity.

Training to counter such addiction is offered by some firms.

RDJ has itself offered awareness training in the use of smartphones to its staff.

Bringing down the gavel on social media

Cybersecurity is another key area of focus.

Clearly, many employers have begun to adapt to the social media age. The courts here could seek advice from those firms which have raised their game.

Overseas, some court systems have made real efforts to counter the negative effects of social media use in the litigation setting.

Chilean academic Emily Janoski-Haehlen has highlighted the extent to which jurors, lawyers, and even judges have misused social media in a court setting.

In a 2011 article entitled ‘The Courts are all a Twitter’, she set out examples where retrials have been ordered or sought as a result of juror use of Twitter to send updates on the situation during the trial.

In other cases of misconduct, nine jurors charged with deciding a case were all found to have researched the case on the internet, in a major breach of accepted procedures.

In Baltimore, Maryland, a retrial was sought after five jurors sitting together became Facebook friends and chatted on social media sites.

Judges have not been free of the virus. In Ohio, a judge was accused of posting comments online about a case he was hearing.

An English magistrate got into hot water for tweeting about his cases.

Bringing down the gavel on social media

He resigned, but was unapologetic, contending that he had not mentioned any names and had not revealed information of a private nature.

Academics question whether judges should be allowed to access social media sites when reaching decisions. A fear of falling for fake news, perhaps?

Here, Mr Justice Clarke and his judicial colleagues are faced with some difficult challenges as they set out to navigate a new world in which the old world of respect and deference is under assault from one based on impulse and punchy fingers.

In his recent address, the chief justice accepted that the courts have not always been sufficiently proactive when it comes to keeping pace with developments in social media.

The stakes are high as he himself made clear.

“The potential for unregulated social media to have an impact on the fairness of the trial process is a legitimate and particular concern of the judiciary,” he said.

The judges here have opted for a system of reporting in which regular court reporters enjoy privileged access.

Supervising such a system may not be easy particularly when faced with determined opposition from digital warriors and the disgruntled.

The last thing we need is the transformation of our courthouses into rough houses influenced by tapping demagogues and windbags.

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