Monday 21 October 2019

TJ McIntyre: 'The compelling case against the blanket ban on social media in our courtrooms'

Solidarity-People Before Profit TD Paul Murphy. Photo: Gareth Chaney, Collins
Solidarity-People Before Profit TD Paul Murphy. Photo: Gareth Chaney, Collins

TJ McIntyre

On Saturday, the Chief Justice, Frank Clarke, announced that social media posts from the courtroom are to be banned, except by journalists, lawyers and those with special permission of the presiding judge.

In a speech to an event organised by the Courts Service and National Union of Journalists, he described live posts as a risk to the right to a fair trial and referred to recent cases including individuals "commenting on the truthfulness of evidence given during a trial" and "rallying people from inside the courtroom - with a view to affect a jury's outlook".

The Chief Justice did not identify the trials, but some of his examples clearly referred to the 2017 Jobstown trial in which TD Paul Murphy and several others were acquitted of the false imprisonment of then Tánaiste Joan Burton at a 2014 protest against water charges.

That case - with its #JobstownNotGuilty social media campaign - was the first high profile Irish trial where social media played a prominent part. It included a number of tweets by Mr Murphy from the courtroom which were challenged by the DPP and later deleted (though it should be said that Mr Murphy has denied any intention to influence the jury).

What should we make of this ban? One surprising aspect is how long it has taken.

In 2011, the English courts introduced rules preventing anyone other than journalists or lawyers from posting to social media in the courtroom; the new Irish rules are largely identical, and seem to have been prompted now by judicial concern at both the Jobstown trial and the Belfast rugby rape trial. The #JobstownNotGuilty and #IBelieveHer hashtags show a growing popular willingness to second-guess the judicial process and this ban can be seen as a direct response.

There are certainly good reasons for banning live tweeting in some cases, particularly in criminal trials where much takes place in the absence of the jury.

However, the speech by the Chief Justice did not make the case for the blanket ban which was introduced. All the examples of abuse he gave related to criminal trials - there is no obvious reason why civil trials, which normally do not have a jury, should be treated in the same way. This is equally true of appeal courts, which hear legal argument rather than evidence, and in the UK the Supreme Court allows any person attending a hearing to live tweet except in special circumstances.

The restriction to "bona fide members of the news media profession" is also problematic. In his speech, the Chief Justice equated "hobby journalists" with "the single contrarian in a basement".

However this disregards a number of Irish and European judgments stressing the high constitutional value of citizen journalism; restricting live coverage to those who can produce traditional media credentials has the merit of administrative convenience but will limit many who could provide useful and informed coverage of proceedings.

These criticisms might seem minor, and the restriction on freedom of expression is certainly limited. The trial judge can permit live tweeting on a case by case basis, though it is undesirable that this is left to individual discretion without any guidance. Failing that, those attending court can always post at lunchtime or when proceedings are over for the day.

But the ban exemplifies wider problems.

Mr Murphy has criticised it as "attempting to shore up the position of the mainstream media as the gatekeepers of information from the courts".

His comment - based on distrust of the mainstream media - reflects a crisis of distrust in institutions generally, and a measure which reduces transparency in the court system is likely to undermine that trust further.

Despite the constitutional principle that justice shall be administered in public, the Irish court system has a poor record when compared to other common law jurisdictions such as the United States or UK.

Members of the public do have the right to attend court, but broadcasting from the courtroom is almost non-existent and access to basic court documents exceptionally difficult, even for journalists.

As the Chief Justice acknowledged in his speech, the Irish courts have failed to use the internet to promote greater public understanding.

While there is a high standard of reporting by the media, this is necessarily limited to a small number of newsworthy cases. An individual wishing to know more about a particular case of interest to them is left without any place to start.

These issues - social media coverage, trust in the justice system, and transparency - are interlinked. It is never going to be possible to eliminate misleading, hostile or deceptive posts about trials.

There will always be cases where there is public outrage at aspects of a case. But whether the public has confidence in the judicial system as a whole depends on their understanding of how it operates.

The ban on posting from the courtroom is a small but disappointing loss to that understanding.

Dr TJ McIntyre is a lecturer in the UCD Sutherland School of Law, chair of Digital Rights Ireland and consultant with FP Logue Solicitors.

Irish Independent

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