Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers. It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:
Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.
Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.
So, what is the policy on live tweeting High Court proceedings? Much the same. The High Court website’s guide to ‘court etiquette‘ says:
We ask that you do not take any of the following items into the courtrooms when the Court is in session: cameras, radios, pagers, tape players, tape recorders, mobile phones or any other electronic equipment. These items are to be surrendered at the door and a receipt will be given.
Despite this seemingly absolute ban, the Court’s ‘conditions of entry‘ suggest that it might sometimes be lifted:
Any electronic devices (e.g. mobile phone, iPad, iPod, camera, recording device etc.) that have not been approved for use within the Court are required to be cloaked at the entry to a sitting court.
But no information is provided about how this approval is to be obtained, who provides it or on what terms. (The High Court’s website has no ‘media’ policy.) Tech heads following the Court’s iiNet hearings in 2011 were disappointed to learn that the Court would not permit live tweeting of the closely watched arguments in that case. Nor do either the High Court nor the Victorian Supreme Court generally explain their bans on phones. Attendees at the Victorian Court of Appeal contempt hearing were amused when a court officer told us that the use of personal phones is forbidden because it interferes with the Supreme Court’s own electronics. The officer did not explain quite how that could occur – perhaps the Court uses the same electronics as pre-2015 airplanes? – or why the many phones openly used by lawyers and media in the courtroom (including the Solicitor-General, who received updated instructions from his clients via his mobile with the Court of Appeal’s encouragement) did not crash the Victorian Supreme Court’s systems.
More plausibly, legal stakeholders are sometimes concerned that lay live tweeting may lead to the publication of suppressed or inadmissible information aired in court. In 2011, England’s Court of Appeal opted to manage this issue by a specific ‘guidance‘ on live tweeting ‘for the purposes of fair and accurate recording’ that permits all ‘journalists and legal commentators‘ to live tweet (unless specifically forbidden) and provides:
Where a member of the public, who is in court, wishes to use live textbased communications during court proceedings an application for permission to activate and use, in silent mode, a mobile phone, small laptop or similar piece of equipment, solely in order to make live, textbased communications of the proceedings will need to be made. The application may be made formally or informally (for instance by communicating a request to the judge through court staff).
The guidance notes that, aside from jury matters, ones involving sensitive witnesses or where excessive use of mobile devices causes a distraction in court, ‘the use of an unobtrusive, hand held, silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice.’ The UK’s apex court has gone one step further in its own guidance, noting that ‘cases which come before the UKSC do not involve interaction with witnesses or jurors; and it is rare for evidence to be adduced which may then be heard in other courts’ and stating:
Subject to the exceptions which are outlined below, any member of a legal team or member of the public is permitted to use text-based communications from court, providing (i) these are silent; and (ii) there is no disruption to the proceedings in court.
The guidance promises that the exceptions (for reporting restrictions, and a narrow exception barring revealing the name of an anonymous child) will be posted at the Court’s entrance. Otherwise, the guidance encourages live tweeters to take advantage of the Court’s own wifi.