You may have heard.
In Australia, our Attorneys General are discussing ‘national guidelines for social media use’. Here’s a rundown of recent coverage:
Setting aside the issue of why it’s taken law makers so long to look at this (social media has been around for years: hello!) I think our governments are looking at this issue the wrong way.
There’s a big assumption that social can be controlled. That we can stop people from having conversations online, that we can quickly remove content, that we can control what is being spread. “If only” global behemoths like Facebook and Twitter would cooperate with the Australian Government, all of that content could go away and we could have nice, clean trials with juries who haven’t been influenced by what they might have come across online. If only people we could shut down blogs that discuss current cases, remove comment threads from online forums .. yadda yadda yadda.
That’s nonsense and fighting against the tide.
We can’t keep a lid on what people discuss on the internet, any more than we can stop people:
- Emailing others about court cases
- Telephoning each other about court cases
- Accessing national or international news stories online which may be ‘banned’ in their state
How on earth would any ‘control’ of social media be carried out? Who is going to keep up with the flood of online content shared every minute of every day? Who’s going to decide on the search terms, set up the monitoring, sift through the monitoring, take steps to contact the perpetrators – and take steps to remove the content? An intern in the Attorney General’s office? A new crack team at Facebook? What about the entire blogosphere? Who is the blog watchdog?
The pace of social media is one of the main issues we face. It can take time for content to be found and dealt with – and by then, any ‘damage’ that was going to be done, has been done. And as outlined in this great blog by Natalie Hickey, “Technology-specific regulations will be superseded as new technologies proliferate”. Any plan for ‘control’ that the Attorneys-General come up with, simply won’t cope.
We know that if Facebook takes down a page, a new one can be quickly established. We know that people can have their own ‘private’ discussions online that the government’s tentacles aren’t reaching.
So let’s take this as given: people will talk about court cases. And they may share inaccurate and inflammatory material. And we can’t stop it. As a recent piece in Crikey stated, we may have to “learn to live with the fact that juries cannot be quarantined from social commentary”.
The issues then become:
- how courts and juries deal with and adapt to this reality
- how we can educate communities about the possible ramifications and perhaps discourage at least a percentage of social media users from taking part (and indeed I have seen members of the public warn others about possibly affecting court cases with their posts).
Don’t juries already come to the court room with preconceptions and prejudices? And don’t we already provide them with instructions on how to deal with their duties?
In NSW, jurors are given a prep kit which tells them:
“Laws have been passed which make it illegal for a juror to carry out his or her own investigations during a trial. This means that you must not, during the course of the trial, use any material or research tool, such as the Internet, to access legal databases, earlier decisions of this or other courts, and/or other material of any kind which relates to any matter arising in the trial.”
WA’s juror guidelines touch on internet use: “While you are on jury duty you must not access the internet to research any aspect of jury service or the matters that you may be involved in if empanelled as a juror … Also do not update Facebook, Twitter or any other social networking services with your involvement and location of the court you are attending. The purpose for these restrictions is to protect you as a potential juror and to protect the integrity of the judicial process.”
Perhaps these guidelines, and those in other states, could be expanded to give jurors guidance on how to treat any information they may have come across prior to the trial. If the NSW guidelines can provide guidance on note taking (“Take your time, review your notes and remember it is all right to change your mind when there is good reason for doing so. At the same time, try not to be overly influenced by other people’s ideas and recollections. Even if someone has taken notes, this does not necessarily mean that his or her notes are more accurate than what you remember of the evidence”) surely some can be developed relating to social media?
Again, from Crikey: “Most commentators now agree that enforcing contempt laws in cyber space is nearly impossible and that the courts need to accept that juries are increasingly capable of assessing the facts in complex cases, despite the influence of negative commentary.” Ie, we have to trust our jurors’ capabilities.
I’d be interested in your thoughts.
[Note, this blog focuses on criminal proceedings that are discussed in social media forums. It’s not a blog about defamation, copyright infringement and other legal issues that can be pursued as a result of social media postings. I actually think those laws are a little more clear cut – it’s the criminal trials being discussed in social media that I’m interested in today].