Friday 20 September 2019

Social media updates in courts to be restricted to journalists and lawyers

Chief Justice, Frank Clarke pictured at the seminar
Chief Justice, Frank Clarke pictured at the seminar PIC COLIN O’RIORDAN
Sian Jones, President, NUJ, Seamus Dooley, General Secretary, NUJ Ireland and Chief Justice, Frank Clarke pictured at the seminar PIC COLIN O’RIORDAN
Chief Justice Mr Frank Clarke. Picture: Collins

Alan O'Keeffe and Rebecca Black

Live social media updates are set to be banned in courts for all except journalists and lawyers involved in the case.

Chief Justice, Mr Justice Frank Clarke, made the announcement as he spoke about the difficulties that some use of social media is having on court cases.

He made his remarks as he addressed a seminar of journalists in Dublin today.

Emphasising the right to a fair trial, the Chief Justice described social media as "all pervasive in society", and while recognising the courts "do not operate in isolation" from the world of communications, he said guidelines are needed.

He announced a new practice direction limiting the use of live text and message based communications from court - to bona fide members of the media and lawyers in a case.

"It is clear that there needs to be guidelines regarding the 'who, when and what' of using social media in courtrooms," he said.

Sian Jones, President, NUJ, Seamus Dooley, General Secretary, NUJ Ireland and Chief Justice, Frank Clarke pictured at the seminar
Sian Jones, President, NUJ, Seamus Dooley, General Secretary, NUJ Ireland and Chief Justice, Frank Clarke pictured at the seminar PIC COLIN O’RIORDAN

"From this month on a new Practice Direction - signed by the Presidents of all the Court jurisdictions - will limit the use of court based data messaging and electronic devices, to bona fide members of the press and bona fide lawyers with business in the courts.

"Both sets of professionals know the limits of what they can report and when.

"Others in court will be unable to text or message from the courtroom - in any form."

He added, that "if the experience of the operation of this practice direction provides evidence that it needs to be reinforced by new legislation, we will ask for this to be considered".

The Chief Justice said that the key legitimate concern is to "ensure the integrity of the trial process and the maintenance of a fair trial system".

"The potential for unregulated social media to have an impact on the fairness of the trial process itself is, in my view, a legitimate and particular concern of the Judiciary," he said.

"To date it has been rare that courts in Ireland have had to use contempt of court laws to curb inaccurate and disruptive online communications about cases.

"But it would be extremely naive of us not to plan for the future in this regard.

"In recent times it has become apparent that there is a need for guidance and rules on use of social media and digital devices in courts.

"This extends to the use of social media by observers of a case, and to a lesser extent the use of same by jurors."

Chief Justice Clarke said the new rules will come into force in all courts in the State on Monday, November 26 next.

He said that the huge upsurge in social media use as a means of communication had not been entirely negative and, indeed, the court system itself are now using the medium for some communications regarding the administration of the courts.

It was important to take action to mitigate the potential harm that can be done to trials and the administration of justice by the inappropriate use of social media. The Chief Justice remarked: "Social media is a genie that is out of the bottle and it won't go back in."

The Chief Justice paid tribute to the print and broadcast media today as having given "very little cause of concern" in how they report and comment on court cases.

"In general they do so honestly, diligently and with great skill," he said.

But he said some concerns over social media are "both widespread and real".

"There are genuine concerns over the dissemination of false and malicious claims - which damage social debate, learning, and understanding," he said.

"Such false claims can come just as much from the organised and powerful as they can from the single contrarian in a basement, or a 'hobby journalist' in a court room."

Seamus Dooley, Assistant General Secretary of the National Union of Journalists, told the seminar on the new court directives today that the new directives will be warmly welcomed by working journalists.

Bone-fide journalists manage to provide comprehensive analysis of complex cases on a daily basis. Referring to non-journalists tweeting from courtrooms, he said "You simply cannot summarise a nuanced submission or judgement in 260 characters."

Mr Dooley said he was proud how well these tasks were performed by members of the NUJ.

"The role of the much maligned mainstream media is becoming even more significant as the source of authoritative information delivered calmly, soberly and for a journalistic purpose," he said.

Ray Byrne, Commissioner of the Law Reform Commission, addressed the seminar and said later that people who use social media in ways which contravene reporting restrictions could end up being jailed.

Such breaches of court rules can risk an ongoing trial having to be abandoned. In such cases, the person breaching the reporting rules could end up receiving a prison sentence, he said.

"The current law on contempt applies to somebody who is posting something on social media, particularly if it is going to be published,"  said Mr Byrne.

"You can’t say something that would pre-judge the outcome... That would be a very clear contempt of court," he said.

Mr Byrne said: "If someone says that someone is completely innocent and they post that on social media then that could be prejudicial to the outcome of the case. And, equally, if they say the person is definitely guilty, then that could also be regarded as a clear contempt of court."

Another issue is the duty of protection of the identity of certain individuals in court.

"It is important, particularly in a very sensitive trial, judges will always impose reporting restrictions and for journalists who are in court, they know those restrictions are in place.

"Not everybody knows about that. But it is very clear why it is being done to protect the identity of not only the accused but, particularly in sexual cases, the identity of the complainant.

"And that is a very important part of the system that we operate here in the Republic so, from that point of view, it is very important that those who are reporting, in whatever form, whether in commenting on social media, maybe they have seen someone who has been involved in a court case that is still going on and that they do not break those very clear reporting restrictions.

"Because that is something that could end up in them being brought before a judge and being held in contempt. And that can have very serious consequences if a trial has to be abandoned, they may end up getting a prison sentence for themselves as a result of that."

He continued; "The Commission is currently considering this whole area of contempt of court. We hope to publish a report sometime next year trying to set out how the general law should be reformed.

"That will have to address the issue of how we identify the problems arising from social media and the way in which there is an issue around education, public education of people around that whole question of what is and what is not permissible in terms of reporting on the courts," he said.


The new restrictions come in the wake of several incidents regarding the use of social media and court cases.

During a trial last year involving six people charged with offences arising from a water protest in Jobstown, Tallaght, there were concerns about prejudicial material being published online.

One of the defendants, Solidarity TD Paul Murphy was forced to delete several of tweets, including material related to evidence in the case, towards the end of the trial following complaints by the Director of Public Prosecutions.

Judge Melanie Greally had the power to hold him in contempt of court, but opted not to take further action when she was told the tweets were being taken down.

Also near the end of the trial Solidarity TD Ruth Coppinger used social media to say the defence legal teams were challenging what the judge had said in her charge to the jury.

The post was made even though it is forbidden to report anything that happens in the absence of the jury.

Justice Minister Charlie Flanagan has said that the new measures will protect the right to a fair trial.

"The use of social media from within Courts has become highly controversial, not only in this jurisdiction, cutting across the law of contempt and judges’ powers of contempt.

"I welcome this move by the Chief Justice, limiting the use of texting and tweeting from Court to bona fide members of the media and lawyers in a case will help ensure only those fully aware of the limits of what they can report and when will report live from a Court room," he said.

Culture Minister Josepha Madigan has welcomed the ban on the public Tweeting and texting in court.

Minister Madigan introduced a Private Members Bill, the Contempt of Court Bill 2017 in October last year, which included measures to give judges powers to direct social media companies to take down posts that could risk prejudicing a criminal trial.

The Fine Gael representative said: "The Supreme Court first called for changes in this law in the early 90s while legislation was first introduced in the UK in 1981.

"My Contempt of Court Bill was the first attempt in this country to legislate for contempt despite Judges, legal experts and journalists all calling for legislation in this area for some time.

"This move is a welcome first step. It will help prevent injustices from being done, protect the administration of justice and guarantee the right of every citizen to receive a fair and impartial hearing of their case." 

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