Screen Shot 2015-08-06 at 11.08.33 amBY ALYSIA BLACKHAM AND GEORGE WILLIAMS

Social media is pervasive in many sectors of Australian society. However, Australia’s courts are generally taking a cautious approach to using this technology to enhance and complement their processes. Where courts have used social media, it has generally been in the context of regulating its use by others (for example, by limiting journalists’ live tweeting of court cases or juries’ use of extraneous social media ‘research’) rather than considering how they might make active use of social media themselves. In this blog post, we examine the extent to which Australian courts are using social media, and consider the opportunities and challenges posed by such media for courts.

Courts and social media

Social media refers to the ‘set of online tools that are designed for and centered around social interaction’,[1] including such platforms as Facebook, Twitter, YouTube, Instagram and blogs. Every day, there are more and more people looking to get free instagram followers to give themselves a larger presence on social media. Social media may significantly enhance court communication processes. First, it can provide an effective means for the direct delivery of judicial decisions and court information. As social media continues to grow, and traditional media formats decline, social media can provide court information in a format that many (particularly younger) citizens are likely to access. Thus, social media’s potential for improved access to information offers obvious and straightforward advantages to courts in extending the reach of their communications.

Second, social media can enhance public confidence and understanding of the courts by facilitating individuals’ direct engagement with the courts in a non-confrontational setting. Social media can facilitate two-way, interactive engagement between the courts and the public. Social media can thereby help to reaffirm public confidence in the legal system, including by assisting courts to build more personal relationships with individuals by showing a more ‘human’ side to the judicial system.

Third, social media can provide courts with a voice and an opportunity to counteract adverse media coverage and media distortions. Social media provides courts with a direct channel of communication to the general public, allowing them to present their own information on issues without filtering. Courts are thus provided with the opportunity to correct inaccurate reporting and publicise information that may not be regarded as ‘newsworthy’.

Social changes may increasingly demand court engagement with the new media. As courts’ roles and powers expand in the modern regulatory environment, it is essential that they maintain democratic legitimacy and public trust through stronger accountability and, more particularly, openness to public scrutiny via social media. This may also require courts to re-think their traditional reticence to engage in public debate. Maintaining judicial legitimacy in a technological age may require a shift in substantive conceptions of the judicial role and its position in society.

While courts may need to use social media to secure democratic and social legitimacy, social media can also undermine courts’ authority. Courts need to operate with a degree of detachment. Engaging with the public through social media may reduce this, thereby undermining the integrity of the courts. Further, engagement with social media may expose courts to criticism or jeopardise the due administration of justice. Mediums such as Twitter allow impulsive comments to be instantaneously visible globally. There is a risk that court officers will make a comment that is liable to be criticised or release information prematurely into the public sphere. These concerns relate equally to use of social media by courts and judges, as well as to the use by court employees, whether they are acting in a personal capacity or as a court representative. While we have found limited evidence of Australian judges using social media in their individual capacity while acknowledging their professional role (indeed, only one Australian judge, Lex Lasry, a member of the Victorian Supreme Court, appeared to be using Twitter openly in his individual official capacity – @Lasry08), this does not preclude the possibility that judges are using social media as private individuals. While this risk can be managed through staff training and supervision, social media poses new challenges and risks for courts, as well as opportunities. The diffuse and decentralised nature of social media makes managing the conduct of individual court employees a complex task.

With this in mind, we turn now to consider how courts are using social media as a tool to enhance their communication, and what consequences are arising as a result.

Courts using social media in Australia

Australian courts have not been early adopters of social media. Of the (roughly) 19 courts in Australia, six now have an individual social media presence. In two states, courts are represented by a collective presence. Australian courts are increasingly appearing on Twitter, and some courts and government judicial departments now have a presence on YouTube. However, the use of social media varies dramatically across the jurisdictions, ranging from no engagement (Western Australia, the Northern Territory, the Australian Capital Territory, Tasmania) to engagement by a central body on behalf of all courts (South Australia, Queensland), to limited engagement by individual courts (New South Wales, federal courts), to extensive involvement by individual courts (Victoria). Australia’s High Court has no presence whatsoever on social media.

Most courts with a social media presence use Twitter and YouTube as a means of publishing court news (for example, articles featuring judges) and judgments, administrative matters (for example, registry opening hours, changes to fees and court disruptions), broader news (for example, reports by the Attorney General and talks at conferences) and educational items (for example, informing people of the ability to file court documents online). This shows that engagement with social media tends to be for one-way information transmission only.

Of the Australian courts, the Victorian Supreme Court (@SCVSupremeCourt) is engaging with Twitter and other social media tools in the most active way. The Court is using social media as more than just a means of information transmission: Twitter has been used in the past to respond to criticism of the Court and publicly present the Court’s perspective, and to answer questions from the public. It has also been used to source public opinion on the courts’ operations. However, there is limited evidence of the Court using social media as more than a one-way transmission tool. That said, the Court also web-streams criminal sentencing in some cases, and links to the streams via Twitter.

If courts are to avoid relinquishing their democratic legitimacy and social authority, it becomes increasingly important for them to engage appropriately with social media. Courts can no longer remain separate and immune from the swirl of social media: they will be drawn-in to social media platforms whether or not they choose to engage with them. Rather than allowing individuals to determine how courts are depicted on online platforms, there is a strong case for courts managing their own presence and profile on social media. Indeed, interactive and continuous engagement with the public via social media may become central to upholding courts’ democratic legitimacy and social authority. Conversely, a failure by courts to engage with social media may mean that they are not taking the necessary steps to build their legitimacy and status in the eyes of the social media ‘generation’.

Courts could do far more to engage effectively with social media. However, this does not mean throwing caution to the wind: unthinking judicial engagement with social media could seriously undermine the administration of justice and the integrity of the courts. Further, it may jeopardise the appearance (and reality) of judicial independence and impartiality. There is a need for cautious and principled engagement with social media by courts as institutions, rather than by judges as individuals. This reflects the importance of courts using social media in a way that is consistent with the judicial role.

 

[1] John C Bertot, Paul T Jaeger and Derek Hansen, ‘The Impact of Polices on Government Social Media Usage: Issues, Challenges, and Recommendations’ (2012) 29 Government Information Quarterly 30, 30.

 

Alysia Blackham is the Turpin-Lipstein Fellow and College Lecturer in Law at Clare College, Cambridge and an Affiliated Lecturer at the Faculty of Law, University of Cambridge. George Williams is the Anthony Mason Professor, a Scientia Professor and the Foundation Director of the Gilbert + Tobin Centre of Public Law at the Faculty of Law, University of New South Wales. This blog is drawn from research published in Alysia Blackham and George Williams, ‘Australian Courts and Social Media’ (2013) 38(3) Alternative Law Journal 170–5 and Alysia Blackham and George Williams, ‘Social Media and Court Communication’ [2015] Public Law 403–25.

Suggested citation: Alysia Blackham and George Williams, ‘The courts and social media’ on AUSPUBLAW (6 August 2015)