knowledge 22 November 2018 |

Tweeters’ Wings Clipped by New Practice Direction

Ireland’s judiciary has sought to respond directly to this challenge with a new Practice Direction on the use of cameras and electronic devices in court. The Practice Direction, to be signed by the presidents of all the court jurisdictions, will for the first time regulate the use of personal devices in Irish court rooms during court proceedings.  

Existing restrictions on taking photographs in court and on the live recording of court proceedings remain in place. In addition, the Practice Direction requires any person, other than certain designated persons, to seek express permission from the court prior to transmitting live text based communications from the court room.

In a recent speech, Chief Justice Frank Clarke explained that the new rules are aimed at preserving the integrity of the court process and the system of fair trial. While recognising the importance of the operations and decisions of the courts being communicated widely and so enabling people to understand the work of the courts, he emphasised the judiciary’s concern about the impact on the administration of justice of live transmission on social media by the public during court proceedings.

The use of tweets or other social media updates to comment on evidence when that evidence might later be ruled inadmissible was identified as a key risk in the context of criminal proceedings. Social media commentary on the perceived truthfulness of witness testimony was also undesirable as was rallying those outside the court room with a view to affecting a jury’s outlook.

On the other hand, the Chief Justice emphasised that the print and broadcast media’s use of social media has given rise to very little cause for concern as in general they report honestly, diligently and with great skill, while applying appropriate restraint in their reporting.

Bearing this in mind, under the new regime the transmission of live text-based communications from a personal device during court proceedings will be permitted by

• practising members of the legal profession with bona fide business in the court concerned, or
• bona fide members of the news media profession or professional legal commentators whose professional standing is established to the court’s satisfaction and who are using the device for the purpose of reporting proceedings before the court.

In either case, the device must be in silent mode and the use must not disrupt the proceedings or prejudice the administration of justice in relation to any proceedings.

In any other case, such transmissions are prohibited without express permission from the court. Bloggers, members of the public and ‘hobby journalists’ who fail to comply may see themselves excluded from court, their device temporarily removed and any recorded material surrendered.

Analysis

While in the past the Irish High Court has recognised the entitlement of bloggers to rely upon privilege traditionally reserved to journalists,¹  in this instance a distinction has been drawn between the two groups. While this Practice Direction represents a pragmatic response by the judiciary to significant challenges faced by judges, it raises interesting issues regarding balancing freedom of expression and the right to a fair trial. It will also be interesting to see how Ireland’s uncodified contempt of court jurisdiction interfaces with those rights in this particular instance.  The Practice Direction will necessarily involve judges making assessments of how responsible particular individuals have been, or might be, in their use of social media in relation to court proceedings and it is not yet clear how judges will approach this in practice.

Also contributed by: Rachel Fitzsimons.