Social Media in Court Down Under

A panel of academics (including my friend Mark Pearson of Griffith University) has issued a report commissioned by the Attorney General of the Australian state of Victoria on the issues involving jurors' use of social media, including recommendations for dealing with the issue.

The problems resulting from juror use of social media that the report describes are the same as in American courts: juror use of social media to research and comment on cases, and to research and communicate with trial participants, including fellow jurors.

Social media poses a particular threat to the Australian -- and British -- practice of issuing "non-publication orders" which bar publication of "material which has a tendency to interfere with the administration of justice," and punishing those who publish such material -- whether such orders have been issued or not -- with "sub judice" prosecutions. [Such orders -- except against lawyers and court officers involved in a trial -- and prosecutions would clearly be unconstitutional in the United States.] But these orders and prosecutions, the report concludes, are likely to more difficult -- if not impossible -- to enforce when the trial information is published on social media.

After considering a number of possible solutions, including both the practical and impractical, the report concludes that Australian courts should include discussion of social media in initial orientation of jurors; revise jury instructions to specifically discuss and explain restrictions on social media use; and undertake research on jurors' use of social media to improve these efforts.

As our courts deal with the ongoing emergence and growth of social media, we should realize that it is truly a global phenomenon, and that courts around the world are figuring how to use, accommodate, and control jurors' use of these tools while preserving fair administration of justice.