Tweeting in Court

The Lord Chief Justice has relaxed the rules about use of Twitter in court. If the judge gives permission, you can Tweet about the proceedings.

The use of any form of communication device (e.g. mobile phones or laptops) in court is generally prohibited. Mobile phones, for example, must be switched off in court. Real-time reporting of a trial from the court room (e.g. through Twitter, email or blogs) has generally therefore not been possible. However, in December, the most senior judge in the UK produced some guidance on when a judge might allow "live text-based communications" to be used in his or her court. Permission from the judge is always required. Whether it is given will depend on whether the court is satisfied that "its use does not pose a danger of interference to the proper administration of justice".

We set out here some guidance about when permission may or may not be given:

• If the device is unobtrusive, hand held and virtually silent and will be used only for simultaneous text-based reporting then permission will generally be given, provided there is no danger to the "proper administration of justice". The "text-based" limitation is important because making sound recordings is generally not allowed.
• Permissible devices include mobile phones, small laptops and tablet computers.
• Permission is less likely to be given in criminal trials than in civil trials because of the risks posed by a jury being influenced by inadmissible evidence appearing on Twitter or of witnesses being coached on the basis of Tweets.
• In the highest profile cases if permission is to be given at all, it may be given only to the media rather than the wider public, apparently to prevent distraction and interference with the court's sound equipment.
• The application can be made formally or informally (for example, through court staff) or the court can allow it on its own initiative.

Of course, the general contempt of court rules still apply to "live text-based communications", as much as they do to any other form of publishing. Communications must therefore not "create a substantial risk that the course of justice… will be seriously impeded or prejudiced." There is a defence to a charge of contempt if the report is contemporaneous (which it will always be in this context) and if the report is fair and accurate and published in good faith. Care must therefore be taken to be fair and accurate, potentially in under 140 characters.

It will be interesting to see if judges focus on the risks posed by real-time reporting additional to those posed by other non-contemporaneous reporting. If there is unlikely to be any court-room distraction and the same content could be Tweeted from the court steps, it would seem over-cautious to prohibit real-time reporting if it poses no greater risks than almost-real-time reporting. Juries are, for example, already warned not to search for the defendant on the Internet, in case Google or Twitter reveal prejudicial information.  However, Tweets such as "In court - defendant looks shifty, pros evidence strong" might create a greater snowball effect than those from non-real-time sources.

The Master of the Rolls has recently rejected what is thought to be the first application to use Twitter in a hearing. The case was about whether an anonymity order should be continued in a privacy action. Unsurprisingly (especially as the hearing would have been in private), the basis of the rejection was that, as the hearing was about private information, something that should be kept private could be released through Twitter.  

Our prediction is that, once a judge says that mobiles can be switched on for text-based reports of the case, a lot of people are going to be very tempted also to check their emails and send text messages. Some of those observing the trial might spend most of their time staring at and fiddling with their phone. This alone may irritate the judge, but someone or other is bound to forget to turn their ringer off or want to rush out of the court gripping their phone tightly, which is likely to annoy the judge so much that he or she might then order everyone to turn off their phones again. Until recently, the court was one of the few places where you could get away from your Blackberry or mobile. But, along with cinemas and restaurants these days, even the courtroom will no longer be a sacred place.

Lawyers Adam Rendle