Judges all in a Twitter over Social Media

The old adage that justice must not only be done, but must also be seen to be done, underpins the legal system in the western world. But various developments are conspiring to change the way in which the public sees justice being done and courts worldwide are grappling with strategies to ensure that what happens in their precincts remains open and accessible to all and sundry.

In years gone by, dedicated court reporters from mainstream media, such as newspapers, were the interface between the courts and the public. They covered civil cases in great depth, shining a powerful light on complex cases for the enlightenment of a public that was often bewildered and confused by the sometimes arcane workings of the judicial system.

Since then, of course, television and radio journalists have been admitted to the courts with their cameras and microphones. While this may have the effect of making proceedings even more transparent to the public, the dangers are that television journalism may sensationalise cases without providing a proper context, and that drier but still important cases may receive less coverage.

Further adding to these concerns is the digital revolution sweeping the world that threatens to isolate the courts even further from the public at large. The internet and its social media offspring like Facebook, Twitter and LinkedIn pose a major challenge to the long-cherished concept of open justice and it is not only old school journalists who are concerned.

In Australia, the Chief Justice of Victoria, Marilyn Warren, believes new media have far-reaching implications for the age-old relationship between courts and the media, especially as far as the preservation of open justice is concerned. She says the paradigm shift to new media is having a profound effect on the commercial viability of traditional media and its coverage of the courts and the judicial sector.

“The decentralisation of the press into a variety of new media forums is starting to have a noticeable effect on the circulation and revenues of traditional print and television media. In 2011 The (Melbourne) Age had nearly 200,000 weekday newspaper subscriptions - today it stands at just over 142,000 but The Age Twitter account has over 150,000 followers,” she notes.

As a result of this trend there have been redundancies at newspaper outlets around the world, with some of the principal victims being specialist court reporters. Such a situation greatly worries Chief Justice Warren, who says the courts are losing the main source of dedicated and coherent media coverage of court proceedings and justice sector matters. Those remaining are taking up new media tools and using them with a variety of results.

 “These days, accredited journalists are permitted to email, tweet and text from the courtroom [and] all this goes on line almost immediately. The public on checking the news updates online read the bare facts - often with little analysis - and embark on their own generation of opinion and commentary,” she notes.

Chief Justice Warren says, given the magnitude of the internet and plethora of social media publishers, it has become increasingly difficult for courts to identify who they should engage with and how in order to deliver a targeted and coherent message to the public.

This has left the courts in Victoria with only one option. “The courts must (now) look to new media forums if they are to reach a wider cross section of the community and effectively inform them about the justice system,” says Chief Justice Warren.

And to that end the Victorian Supreme Court has embarked on some fairly radical moves. It has joined Facebook and Twitter and is planning to launch a revamped website featuring live videos and blogs from retired judges. Masterminding the new website are three “communication” judges and the court’s communications manager. Other than these people, no one over the age of 30 will be allowed to participate in the initial discussions to set up the site.

Chief Justice Warren says the blogs from retired judges are designed to “create greater community understanding around controversial issues”. “This will represent a historic shift away from traditional judicial reluctance to explain or defend judicial decisions that are made in accordance with the rule of law. Open justice now increasingly means the ability of the community to access information about the courts through the internet and social media,” she says.

Not surprisingly, the New Zealand judicial sector is watching developments in Victoria and elsewhere with close interest as it embraces the digital revolution and works towards paperless courts.

Here, new technology known as eBench will allow judges to manage criminal cases electronically, see charges processed up to 70 per cent faster and save the Ministry of Justice and police around 93,000 hours a year. According to Courts Minister Chester Borrows it will eliminate the need for courts to “print, sign-by-hand, ink stamp, photocopy, courier, fax, post, file, locate and distribute all this paper”. “This is the sort of technology that will help us realise our goal of bringing the courts into the 21st century,” he says.

eBench is a key segment of a $30 million project to modernise the court system known as the Electronic Operating Model (EOM). Sensitive details of the project, which were released to
The New Zealand Herald in July under the Official Information Act 1982, show it is behind schedule and on track to exceed its budget, although the exact amount of excess spending is unclear.

According to the Herald, the project was flagged as being at risk in November 2012 with staff under extraordinarily high pressure. “Even then, officials were trying to salvage the project but accepted by December it would miss the 2013 deadline,” the report stated.

Law News asked the Ministry of Justice for an update since the Herald story was published. Nathan Green, Team Leader - Media and External Relations, told us: “We’re still working towards the December rollout of Corrections being able to file pre-sentence reports electronically, and we’re planning the tool (eBench) for judges still. This re-plan is about the delivery approach and implementation timetable, not the functionality,” he said.

All of which means that eBench is probably still some way off and may not see the light of day until the middle of next year. Some informed industry sources believe the difficulties with it are indicative of a malaise that afflicts government IT projects in general and legal IT projects in particular, with memories of the disastrous Novopay and Incis programmes still fresh in their minds.

“New Zealand government IT projects are committed to re-inventing the wheel,” one source told Law News, posing the question: “Melbourne has an efficiently functioning eBench as does Singapore. Can we not use their systems and modify them for our purposes?”

New Zealand’s most tech-savvy judge, David Harvey, declined to comment on the EOM saga but told Law News that, like other jurisdictions such as Victoria, New Zealand courts should embrace social media.

“Certainly. Given the uptake of social media in courts overseas where it is used for a variety of purposes the issue is: ‘Can you afford not to use it?’ Social media is a vibrant and dynamic form of communication and should be a part of any organisation’s communications strategy.”

Asked for his preference in terms of Facebook, Twitter and LinkedIn, he said: “LinkedIn is a professional recommendation network and I wouldn't rank it in importance alongside Twitter and Facebook. Twitter, particularly if tweets are properly composed, can be a highly effective, instantaneous communication system.”

Judge Harvey believes the use of social media in the courtroom should be controlled by “a skilled media person” with each court having their own person, as the communication needs of each court are different.

He says the “creative use” of social media could fill a gap left by the demise of dedicated court reporters, a trend that troubles him: “Yes, because the media, as the surrogate of the public as a reporter of the activities of an arm of government, should do more”.

And what of a website along the lines of the one proposed for the Victorian Supreme Court, which will have blogs from retired judges? “Certainly it is an idea worth looking at. For your information there are a number of sitting judges who blog - one in New Zealand,” Judge Harvey says, although he would not be drawn on the identity of the judicial blogger.

For her part, Justice Minister Judith Collins told Law News that she is watching developments in Victoria with interest. “It’s important to note the changes in Victoria are being driven by the judiciary rather than the executive. There is an important constitutional separation between the judiciary and the executive, so while I’m supportive of greater openness in court, the government needs to work closely with the judiciary for this to happen,” she says.

“Although it is for the presiding judge to determine what information can be published, subject to any suppression orders or statutory prohibitions, I expect judges to be alert to the public’s right to have prompt access to decisions.”

Ms Collins says rules around social media in court are being addressed as part of a judicial-led review of in-court media coverage announced by Chief Justice Sian Elias in August 2013. “The review will look at whether the current framework is meeting the interests of the public, parties and victims and will likely cover live streaming information and internal best practice regarding open justice in the current digital age.”

So, as New Zealand jurists tiptoe along the social media highway, their colleagues across the Tasman appear to be up and running towards the finish line. And for Chief Justice Marilyn Warren it is a race with a lot hanging on it. “There is now an expectation that open justice involves the judiciary adopting new media technologies and engaging in a direct dialogue with the community,” she says.

“The judiciary must find a way to meet those expectations whilst at the same time preserve the fundamental aspects of the rule of law - fairness and judicial impartiality. Technology and social media provide an exhilarating opportunity for the courts to tell the public we serve who we are, what we do, how we do it and why the rule of law matters.”

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