Dispute Resolution Update: Rules and Procedures for “New Reality” of Social Media in Court

The Chief Justice, Mr Justice Frank Clarke, has this week issued a new practice direction on the use of cameras and electronic devices in Court. The practice direction limits digital, text based, mass communication from a courtroom to members of the press and lawyers with business in the courts.

Background

The use of social media in the courtroom is a relatively new phenomenon. As a result, it now presents new challenges to the administration of justice and the ideal of a fair trial in Ireland. The issue came to the fore of the judicial and political agenda in 2017 following the use of social media in the high profile Jobstown trial. The case centred on charges faced by six individuals who were alleged to have falsely imprisoned former Labour Party leader Joan Burton during a water charges protest in 2014.

In the wake of the trial, Fine Gael Party member, Minister Josepha Madigan tabled the Contempt of Court Bill which sought to give the courts powers to deal with contempt of court occurring on social media. Subsequently, the former Chief Justice, Susan Denham, called for new procedures on how contempt of court laws apply to posts on social media.

The current Chief Justice echoed these concerns last Saturday in his address to the Courts Service of Ireland and the National Union of Journalists on court reporting. He noted that the potential for unregulated social media to have an impact on the fairness of the trial process is a genuine concern for the judiciary. He said that the “new reality” of online communication in the courtroom required clear rules and guidance and announced that a new practice direction would issue in November 2018.

Key aspects of the Practice Direction

• The use of court based data messaging using an electronic device is limited to bona fide members of the press and bona fide lawyers with business in the courts. Electronic devices are defined in the practice direction as including a smartphone, cellular phone, computer, laptop, tablet, notebook, personal digital assistant, or other similar device. Other individuals attending court will be unable to text or message from the courtroom without the permission.

• Persons, other than the Courts Service officials, can only record proceedings in writing or shorthand. Permission of the court is required before recording proceedings by means of an electronic device.

• Persons involved in proceedings may use electronic devices to take notes, as distinct from recording, of the proceedings.

• The taking of photographs or transmission by video or television of court proceedings is prohibited.

• The Courts may address any infringement by directing the person to: desist; leave the courtroom; or surrender the device or recorded material.

Comment

While there is currently no legislation surrounding contempt of court occurring on social media, the Chief Justice did not rule out the possibility of requesting legislation to bolster the practice direction if required. In addition, a Law Reform Commission report on the wider issue of the law of contempt and the use of social media in the court is expected in early 2019. This report may indeed make a recommendation for statutory reform in this area.

It remains to be seen how the practice direction will be enforced however the Chief Justice commented that the judiciary will take a common sense approach when implementing the direction.

The new practice direction will come into force on 26 November 2018 and applies to all courts.

For more information on this development, please contact a member of our Dispute Resolution team.

This article was written by Colin Monaghan and Louise Mitchell. The content of this article is provided for information purposes only and does not constitute legal or other advice.