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Jackson, Margaret; Shelly, Marita --- "The Use of Twitter by Australian Courts" [2015] JlLawInfoSci 12; (2015/2016) 24(1) Journal of Law, Information and Science 83

The Use of Twitter by Australian Courts

MARGARET JACKSON AND MARITA SHELLY^[*]

Abstract

This article explores how four Australian courts are using Twitter to disclose information about decisions as well as to advise about court appointments, media reports and administrative matters. It examines the categories of information being tweeted, the effectiveness or otherwise of the Twitter accounts and identifies the risks and challenges associated with this use.

From interviews with court officers, media officers and managers, it was found that the Twitter accounts were working well and had developed a new channel of communication, albeit a one-way channel, with a new audience for higher level courts at least. The interviews also found that the risks associated with courts using a social media tool like Twitter were few, despite the concerns of some academics and lawyers. As with any organisation, there needs to be support for the use of the tool by senior management to ensure that the information being communicated remains relevant and of interest to recipients and does not become a miniature version of its website.

1 Introduction

Social media tools such as Twitter are being adopted by government organisations, non-profit bodies, schools, businesses, police and court systems as a means of providing information to the public, professionals and stakeholders.^[1] Many police forces in Australia, for instance, use social media both in investigations and for general communication to the public and have found it to be effective for both.^[2] Social media has been used effectively for emergencies, such as during the Queensland floods of 2010/11 and the 2014 and 2015 Victorian bushfires. As well, public political figures such as the Prime Minister of Australia, Malcolm Turnbull, who has 426,000 followers,^[3] and former Prime Minister of Australia, Kevin Rudd, who has 1.4 million followers, are finding Twitter to be an influential communication tool.

Courts have begun to realise the value in using social media, particularly Twitter, to communicate directly with the media and public about the work of the courts. In August 2011, the Chief Justice of Victoria, The Honourable Marilyn Warren, stated that the ‘courts should take advantage of social media such as Twitter and Facebook to better explain themselves to the public’.^[4] However, the immediacy and accessibility of social media as a tool for broadcasting court proceedings has led to concerns that it will challenge the fairness of court processes and lead to ill-informed commentary and misinformation.^[5]

This article focuses on four Australian courts,^[6] which, at the start of this project in early 2013, were the only courts in Australia using a social media tool. As the tool being used was Twitter, this project concentrated on the use of this social media tool by courts. Interviews were conducted with court officers, media officers and managers involved in the use of social media to determine why they started to use Twitter, how they have assessed the effectiveness of their Twitter accounts, whether they have experienced any difficulties or problems since starting to tweet, and whether they intended to expand their use of social media beyond Twitter. We also monitored for a two-year period the Twitter feeds of the courts and analysed the content and frequency of tweets, number of re-tweets, and categories of followers.

The article starts by briefly examining the use of Twitter by overseas courts, commencing with the United States, the United Kingdom and Canadian courts, to provide some context for this Australian study.

2 Use of Twitter in courts

The court system is a very traditional and conservative environment, and the use of social media in such an environment is both innovative and challenging. In the last decade, there has been increasing focus on courts not only facilitating the media’s access to court documents and information, but in also increasing accessibility for the community.^[7] Social media provides opportunities to facilitate both the media and community access to courts.

One of the perceived strengths of social media is its ability to improve communication between an organisation and its stakeholders through exchanges of information and ideas. However, as will be discussed, the use of social media tools by organisations such as courts remains largely one-directional, although some courts have now opened Facebook accounts. Twitter in particular is limited in its ability to build relationships.^[8]

Judges and courts have long been concerned that their work is misunderstood by the broader community and that this weakens the community’s confidence in the way justice is administered.^[9] They have struggled to find a way to effectively educate the community about their work, while remaining within the bounds of the rules of judicial proceedings. Also, the reporting of court decisions by the media can often focus on particular cases and sentences without providing the context or background that is needed to fully appreciate how justice is served.^[10] The various social media tools may have the potential to provide courts with a new flexible, cost-effective and varied approach to media liaison and public education in addition to the traditional web pages updated with announcements.^[11] Social media also offers channels not totally dominated by the media.

Courts have always had a cautious approach to reporting and broadcasting of proceedings and decisions.^[12] So when courts themselves decide to tweet information about decisions and proceedings, these concerns must be handled with care. Court reporting requires that disclosure must not interfere with the administration of justice.^[13] Apart from general concerns about the use of social media by courts, it was also considered by some that the use of Twitter by courts might not succeed, due to concerns that the limit of 140 characters was insufficient to allow ‘fair and accurate’ reporting that will also provide useful information, even when providing links to more information that could be followed by readers.^[14] This concern has not been shown to be the case, as is discussed further below.

An early use of Twitter in the United States was by the Clark County Courts in Las Vegas, Nevada in 2007. The court was hearing a case against O. J. Simpson, who had been accused of robbing a hotel-casino. Although the court had introduced a blog and an RSS feed as early as 2003,^[15] it needed a faster way to respond to the queries it was receiving from the 100 or so journalists, photographers and television producers who were attending the trial. Twitter provided an easy solution, as it did not require access to a computer, which the blog did, with tweets being sent out using a mobile phone.^[16]

The 2014 United States New Media Survey conducted by the Conference of Court Public Information Officers found that Twitter was the most popular social media tool used by courts, although Facebook and YouTube were also being used.^[17] Twitter is used to release decisions, for emergency management, and to monitor and gather news.^[18] Facebook is used to post calendar events for the public, to advise about court appointments and to advertise job vacancies.^[19] YouTube is used primarily for how-to videos and frequently asked questions.^[20]

Courts in other jurisdictions are also using Twitter. In the United Kingdom, some courts have allowed the use of Twitter for reporting, such as during the bail hearing in the Magistrates’ Court for Julian Assange in 2011.^[21] At the time, it was not clear whether other higher courts would accept Twitter, but in February 2011, the Supreme Court approved the use of Twitter (with some exceptions), with Lord Phillips stating:

The rapid development of communications technology brings with it both opportunities and challenges for the justice system. An undoubted benefit is that regular updates can be shared with many people outside the court, in real time, which can enhance public interest in the progress of a case and keep those who are interested better informed.^[22]

The United Kingdom Supreme Court in England began tweeting in February 2012, and has established a blog, while in Scotland, the Judicial Office started tweeting court decisions in 2010.^[23] The United Kingdom Supreme Court initially intended to use Twitter only to dispense information, but, following a request from a member of the public, it is now accepting freedom of information requests via Twitter. This sets a new precedent in courts’ use of social media to engage with the public.^[24] Canadian courts also use Twitter. The Canadian Supreme Court, and courts in Nova Scotia, Ontario, Manitoba, British Columbia, Saskatchewan, Newfoundland and Labrador, and Quebec use Twitter to send out news items, in a similar way to RSS feeds, with content targeted to specific topics.

The use of Twitter by reporters and members of the public in court remains a contentious issue, with some courts permitting tweeting and others prohibiting it.^[25] The Australian High Court does not permit live tweeting, but in Western Australia and South Australia, live tweeting is permitted from the Supreme Courts.^[26] The Supreme Court and County Court in Victoria allow live reporting by accredited journalists in some circumstances, subject to such individuals proving their knowledge of court procedures and restrictions.^[27] The Magistrates Court of Victoria prohibits the use of social media including Twitter and live blogging in the courtroom.^[28] A fundamental element of media reporting of court proceedings is respect for rules regarding what is allowed to be disclosed, such as bans on identifying particular offenders, jury deliberations and other particular details of court proceedings.^[29] Generally, in Australia at present, it is up to individual judges to decide whether to permit use of electronic communication devices in their courtrooms. Recent cases such as Roadshow Films Pty Ltd v iiNet Ltd [No 2] [2012] HCA 16; (2012) 248 CLR 42 illustrate that judges see the practice as a valid means of informing the public.^[30] The practice of tweeting by reporters from the courtroom could be widespread, but is difficult to measure given that many of them will not seek permission.^[31]

The use of social media by judges and lawyers has created some problems, particularly in the United States, when their comments or behaviour has challenged the code of ethics and rules relating to professional conduct.^[32] Judges, for instance, must avoid impropriety and the appearance of impropriety in all activities, uphold the integrity and independence of the judiciary, perform the duties of the office fairly, impartially and diligently, and only engage in extrajudicial activities that are consistent with the obligations of judicial office.^[33] However, activities such as ‘friending’ barristers on Facebook who may appear before them, commenting on cases on their blogs or providing links to media articles may create impressions of bias.^[34]

There are no studies yet which measure the value of using Twitter by courts. Assessment of the influence of Twitter accounts, for example, has largely focussed on numbers of followers, repetition of tweet (re-tweeting) and mentions of the tweet in media. A 2010 study by Cha and others found that influence is a combination of these measures and that influence is gained through ‘concerted effort’.^[35] In the absence of empirical research, Lambert called for further research, data collection and evaluation of court use of Twitter and other forms of social media.^[36] A number of studies have considered how to measure the impact of government agencies’ use of social media tools in general including Twitter and found that social media can be effective when used with an appropriate implementation strategy.^[37] A common thread is the need to establish a pilot project with defined, measurable outcomes and evaluate results in order to inform further action.^[38] A qualitative approach using focus groups of key stakeholders is one possible approach.

Methods for analysing the effectiveness of social media tools, and Twitter in particular, can utilise a range of new technologies that analyse key metrics such as followers and re-tweets. Google Analytics, TweetStats and BackType are examples of these tools. However, the value of these measurements is questioned by some and researchers need to identify their own clear measures of reach and influence.^[39] A key point in considering how to evaluate social media effectiveness and specifically the effectiveness of Twitter is to have clear objectives for its use.^[40]

3 How four Australian courts are using Twitter

3.1 The Background

At the time of our research project in 2012 and 2013, only the four Australian courts in our study had started a Twitter account,^[41] with the Supreme Court of Victoria the first to commence in March 2011.^[42] The Magistrates Court of Victoria started a pilot Twitter account in July 2012. The County Court set up a Twitter account in October 2012 but the account did not become active until about March 2013 when a new media person was employed. The Family Court commenced a Twitter account in October 2012. To commence our Twitter project, we identified the courts using social media, which at that stage was just Twitter, then sought interviews with the administrators and media personnel of the courts, as well as with the media administrators in two legal-related organisations also using Twitter. In addition, two magistrates and one County Court judge agreed to be interviewed. A total of eight people were interviewed. We did attempt to contact journalists who we identified as followers of the various courts’ tweets, but none responded to the request for an interview. The objectives of the interviews were to determine why the interviewees’ organisations had chosen to start a Twitter account, how they ran their accounts, and whether or not they had faced any particular problems with the use of Twitter.

We also undertook an analysis of each Twitter account. Using Nvivo 10, the tweets for each Court were classified by the researchers into five categories: general information; judgments/case information; links to media articles;^[43] new court appointments and public relations. The tweets about judgments indicate that a decision has been made available on a court’s website or advise that a suppression order has been made. New court appointments refer to those tweets that announce when a new magistrate or an administrative/management role has been appointed. Following the classification of tweets from each court, the tweets that were re-tweeted were reviewed in relation to the category of the tweet and the type of Twitter account that re-tweeted a tweet. Based on the information provided in the Twitter profiles, the Twitter account categories were classified into academic, individual, journalist, lawyer, organisation and student.^[44] It was not possible to clearly identify who all the followers were as not all Twitter accounts are identifiable.

3.2 The Courts

The analysis of the Twitter accounts of the four courts is discussed below.

3.2.1 Magistrates Court of Victoria

The Magistrates Court of Victoria’s (MCV) use of Twitter has changed since it commenced in July 2012. Originally, its tweets had been a mixture of links to court media stories, stories about the Chief Magistrate and other senior officers, court decisions and some administrative content. Since the beginning of 2013, its tweets comprised primarily administrative information about the operation of the courts. The majority of the tweeting activity (68 per cent) occurred between July 2012 and November 2012, with only 32 per cent occurring between December 2012 and the end of August 2013. This change in focus is due in part to the fact that the former Chief Magistrate of Victoria, who was an instigator and champion of the original Twitter trial, left to take up a new role at the end of 2012.

During our research, 199 tweets sent by the MCV were examined. Of these 199 tweets, 110 (55 per cent) were re-tweeted 298 times.^[45] Of the 199 tweets examined, the majority (37 per cent) were classified as pertaining to ‘public relations’ activities which included launching of programs, court open days, speeches, events, and promotion of community and court based events (such as the hosting of international delegates or visits by students groups). The former Chief Magistrate of Victoria was active in the use of Twitter and promoting the activities of the Court, and most of the public relation tweets occurred in the first six months of the Twitter account. The MVC Twitter account was also mainly being used to provide ‘general information’, with 35 per cent of the tweets providing information around court opening hours, fax machines not working, closing dates for public holidays, changes in fee structures and the release of relevant reports. The next most popular tweet category was links to media articles (17 per cent or 34 tweets), with 29 tweets categorised as news reports relating to a case or a sentence and five categorised as opinion pieces. The remaining tweets related to information around judgments (6 per cent) that came directly from the Court, or to announce a new appointment (6 per cent). At the end of this stage of the research, the MCV Twitter account had 1228 followers and it was following 148 other Twitter accounts.^[46] Of the six key groups into which followers were allocated, the majority of followers are: organisations such as law groups and law firms, lawyers and individuals. Relatively few academics, students and journalists appeared to be following the MCV. The Twitter accounts that the MCV are following vary from unidentified individual accounts with no or limited tweet activity, government departments, other courts including international courts such as the United Kingdom Supreme Court, media reporters, media outlets, lawyers and law organisations.

3.2.2 County Court

The County Court started tweeting in December 2011. During this stage of the research, 129 tweets sent by the County Court were examined.^[47] The County Court Twitter account did not send any tweets between February 2012 and September 2012 or between January 2013 and February 2013. The majority of tweeting activity occurred in May 2013.

Of the 129 tweets examined, 46 tweets (or 36 per cent) were categorised as relating to general information. Public relations also accounted for 42 tweets or 32 per cent of the tweets examined, with a large number of these referring to the Koori Court and the Court’s open days. The other tweets related to judgments (11), new appointments (22) and links to media articles (8). Fifty-one of the 129 tweets examined were re-tweeted, with a fairly even spread between the categories of tweets being re-tweeted. Except for the tweets relating to ‘general information’, with only 26 per cent of these being re-tweeted, each tweet is re-tweeted almost half of the time. The low number of re-tweets is reflective on the number of followers and the overall low level of activity related to this site. Over 50 per cent of the public relations tweets relating to the Court’s open day and Koori Court were re-tweeted.

At the end of this stage of the research the County Court Twitter account had 476 followers and it was following 114 other Twitter accounts.^[48] The low number of followers is likely to be related to the low level of activity, with the increase seen during the last few months as activity on the site increased. The followers are mostly law-related organisations and law firms, with some lawyers, individuals and journalists. Very few academics or students are following the County Court. The County Court cases could be considered more ‘news worthy’; hence journalists and media outlets follow this court. The County Court is also following a number of law-related organisations, law firms and lawyers.

Excluding the month of May 2013, this site has seen very little activity relative to the other sites. This is reflected in the low number of followers and re-tweets in relation to the other sites. The increase in activity on the Twitter account since May 2013 indicates a renewed interest in the use of Twitter and new court staff appointments responsible for the County Court’s Twitter account.

3.2.3 Supreme Court of Victoria

The Supreme Court of Victoria’s (SCV) Twitter account was the most active during this research project,^[49] with a total of 372 tweets between March 2011 and the end of August 2013.^[50]

Of the 299 original tweets examined as part of this research, 205 (68 per cent) were re-tweeted a total of 709 times. The majority (52 per cent) of the tweets sent pertained to ‘judgments’ and included information such as a link to a judgment summary, live viewing of the judgment (the SCV was the first to introduce this in Victoria), or indicate that a verdict has been reached and will be delivered shortly.^[51] The judgment tweets also included information around the outcome of appeals. The SCV Twitter account, similar to the MCV’s Twitter account, is primarily being used to provide ‘general information’, with 58 (or 19 per cent) of the tweets providing information relating to the release dates of law reform reports, trial start dates, adjournment of trials and comments from judges that are not related to sentencing. The other large portion of tweets (45 or 15 per cent) related to ‘public relations’ and referred to events such as open court days, award ceremonies or achievement awards. The remaining tweets related to ‘links to media articles’ (24 tweets) and ‘new appointments’ (14 tweets). The ‘links to media articles’ were a mixture of news reports and opinion articles. The ‘judgment’ tweets released by SCV were re-tweeted a total of 353 times, which accounts for 50 per cent of the total number of re-tweets. When considering who was doing the re-tweeting of the ‘judgment’ tweets, there was a fairly even spread amongst journalists (74 or 21 per cent), lawyers (78 or 22 per cent), individuals (95 or 27 per cent) and organisations (63 or 18 per cent). Thirty-five of the ‘general information’ tweets were re-tweeted a total of 125 times. These tweets are mostly being re-tweeted by lawyers (28 or 22 per cent) and organisations (29 or 23 per cent). This is expected as these tweets are often related to policy or indicated trial start dates, which are pertinent information for these two groups. The ‘public relations’ tweets were re-tweeted a total of 125 times (18 per cent) mostly by individuals (29 times or 23 per cent) or organisations (45 times or 36 per cent). This is best described by the public’s interest in visiting the courts through open days and organisations promoting awards, seminars and events. Eighteen of the links to media articles tweets were re-tweeted a total of 50 times, mostly by lawyers. The ‘new appointment’ tweets highlighted when a new appointment had been made, with 13 of the 17 tweets re-tweeted a total of 58 times. Again, most of these re-tweets were from lawyers and organisations. Lawyers would no doubt share a keen interest in the appointment of new judges. When considering who was undertaking the majority of the re-tweeting, there was a fairly even spread amongst lawyers, individuals and organisations, accounting for 69 per cent of the re-tweets between them. The next most active group were journalists, who showed a keen interest in the tweets relating to ‘judgments’. This is not surprising given that ‘judgements’ is the information that is newsworthy and of interest to the public.

At the end of this stage of the research, the SCV Twitter account had 2260 followers and it was following 192 other Twitter accounts.^[52] The SCV is following Twitter accounts which are mostly media-related, including individual journalists, as well as law-related organisations and individual lawyers. The high level of activity related to the Supreme Court Twitter account appears to be related to the newsworthy cases, as well as the feed of live and relevant, up-to-date tweets.

3.2.4 Family Court of Australia

The Family Court of Australia started tweeting in October 2012. During this stage of the research, 140 tweets were examined, with the majority of tweeting activity occurring between June 2013 and August 2013.^[53]

Similar to the other courts’ Twitter accounts examined, the Family Court’s Twitter account provided general information, with 60 (40 per cent) tweets relating to court opening hours, internet or technology issues, changes in fee structures, or the release of a new program or report. During this research, the Family Court also sent out a weekly tweet with a link to the court’s website and statement that the judgement page had been updated. Of the 140 tweets examined, 53 (36 per cent) related to information on judgments. The remaining 27 tweets related to new appointments announcements within the court (11 tweets), public relations (9 tweets) and links to online news articles (7 tweets). The tweets around public relations referred to items that promoted the family law conference or advisory group meetings, promotion of the court’s activities or visiting delegates to the court. At the end of this stage of the research, the Family Court Twitter account had only 621 followers; mostly lawyers, individuals and law-related organisations.^[54]

Of the 140 tweets, 81 of them were re-tweeted a total of 197 times. The majority of the re-tweets were done by lawyers (35 per cent), individuals (37 per cent) and organisations (26 per cent). Very few journalists, academics or students re-tweeted a Family Court tweet, with only 5 of the 197 re-tweets coming from these groups. Of the 60 tweets categorised as ‘general information’, 28 were re-tweeted a total of 85 times, mostly by lawyers (30), individuals (35) and organisations (20). Of the 53 ‘judgement’ tweets, 32 were re-tweeted 51 times, mostly by lawyers (21) and individuals (19). Of the 11 tweets relating to ‘new appointments’, 9 were re-tweeted 23 times, mostly by lawyers and organisations. Of the 9 ‘public relations’ tweets, 6 were re-tweeted a total of 15 times, mostly by lawyers and individuals. Of the 7 tweets linking to ‘news articles’, 6 were re-tweeted a total of 23 times, mostly by individuals (11) and organisations (9). The increase in tweets in the June 2013 to July 2013 period of the research suggests a renewed interest in the use of Twitter as a communication tool or a change in the internal personnel managing the court’s Twitter account. The use of an automated tweet as a regular feed would also allow a court with limited personnel or resources to manage their Twitter account and keep their site active.

3.3 Findings from Interviews^[55]

3.3.1 Why Open a Twitter Account?

Twitter was chosen as the communication tool as it was judged by all officers to be the easiest and least expensive form of social media to use. Tweets could be written and sent within a few minutes and could be sent from any location, sometimes from home or on the way to or from work. No particular type of technology was required other than access to the internet.

3.3.2 Who Initiated the Twitter Account?

Generally, the decision to start the account was driven by a ‘keen champion’ rather than through a formal communication strategy. Some accounts resulted from a proposal put forward by communications and media staff to the senior judge. One came up as a proposal at a communication and media committee meeting; another was driven by the senior judge, and one was an initiative of the communications manager, who gained the support of the senior judge before discussing it with the communications committee.

Only one court, once the decision had been made to start the account, set up a steering committee. There seemed to be a ‘let’s just try it and see’ attitude to setting up a Twitter account. There was also a perception that tweeting about court matters were being carried out by journalists and bloggers rather than the courts and it should be the court’s responsibility to have some control over what was being tweeted about court matters. The senior judges in each court were all supportive of the Twitter account. Generally, the role of designated tweeter for each court appears to be the communications manager or a similar position, with strong links to or a direct reporting role to the senior judge.

3.3.3 Objectives

Some of the courts had very broad objectives in setting up the accounts; others were a little more targeted. A common objective was that the courts wanted to communicate more directly with the public without the message being interpreted by others, such as the media. There was a strong feeling that direct communication could improve a court’s public reputation, particularly in areas of public criticism. Once one court in Victoria started to tweet, the other courts felt they should also do so. The main objective they shared was to use a new form of communication technology to circulate information to a new audience, one that was unlikely to regularly visit a website.

3.3.4 Policies

At the time of the interviews, only one of the four courts had an external policy on the use of their Twitter account. One had an internal policy, one had a draft internal policy and the other court had no policy.

3.3.5 Audience

The interviewees all had clear mental images of their intended audiences. First, the legal profession was a key target. Second, another key group were other organisations associated with the justice system, including government departments. Third, all would like to be influencing public perceptions, although this was also the area where they were not seeing an impact or they were not able to measure any impact. The final group is the media. The level of court appears to have the most impact on media interest, as would be expected. There is a clear objective to try to gain a new audience via Twitter, in addition to those already visiting the website for information. Another court said that they are not tweeting anything they would put on their website. The interviewees had noted that tweets related to the senior judge or to cases received the most interest and were most often re-tweeted.

A review of Twitter accounts operated by courts in other countries revealed a similar pattern of content of tweets to the Australian courts. The level of the court determined to a large extent how much detail about court judgments could be provided and the number of re-tweets.

3.3.6 Measurement/Evaluation

Two of the courts had conducted an evaluation six months after their Twitter pilot began and made very few changes as a result. One court sought feedback from followers as part of their evaluation. Generally the interviewees collected data on the number of tweets, followers, re-tweets and click throughs. They recognised that these analytics are only useful up to a certain extent but they have no intention to collect more data at this stage. There was acceptance by all interviewees that they needed to promote the Twitter accounts more internally. None of the interviewees relied on the judicial officers to provide content. Some external promotion was being considered by one or two courts.

3.3.7 Approvals

As previously noted, all court staff responsible for sending tweets on behalf of the court have a strong or direct link to the senior judge of their court. Two of the court tweeters are responsible for what is tweeted, though if they have any concerns about a tweet, they have clear pathways to obtain advice. The tweeters in the other two courts are able to tweet administration information and factual information but need to obtain approval for opinions to be tweeted.

3.3.8 Risks

None of the interviewees had experienced any problems with their tweeting. They had received very little negative comment. They were careful to avoid political comment. They considered that human error, maybe spelling a name wrongly in a tweet, for example, was always possible, but this would only be a minor matter. Apart from human error, the main risks were around privacy and confidentiality. The operation of s 4(1A) of the Judicial Proceedings Report Act 1958 needs to be considered, in particular, in respect of sexual assault cases. The Family Court needs to comply with s 121 of the Family Law Act 1975 (Cth) and its restrictions on publication of court proceedings. Complying with suppression orders was considered to be a major challenge for all interviewees.

3.3.9 Resources

All of the courts started their Twitter accounts within existing resources but in the last six months of our study period, three courts had increased the staff appointments in their media and communications areas. One point that two of the court interviewees made was that involvement with the management of social media goes beyond an 8-hour working day commitment. It cannot be turned off, but needs consistent monitoring and updating.

3.3.10 Expansion

While the Supreme Court commenced a Facebook page in October 2013, the other courts in the study had no immediate plans to use other social media tools. The need for extra staff resources was a key reason for this. One court was keen to expand its operations on Twitter, moving to provide more information on sittings to practitioners and to highlight more high profile decisions. The Supreme Court has been tweeting audio links already and will seek to target more high-profile decisions. Since our interviews, more courts now have Twitter accounts and some have set up Facebook accounts.

4 What are the Risks?

Some academics and court officials have suggested that there are a number of risks in the use of social media tools in the court system.^[56] These risks include the misuse of social media and digital media by jurors, information that has been suppressed by a court ‘going viral’ via social media, the misrepresentation of court work and activity via social media and the difficulty in assessing the authenticity and credibility of journalists using social media. Risks associated with courts using social media tools were mainly related to the lack of court staff expertise in social media, accidental communication of court orders and decisions, difficulty in maintaining up-to-date information, and slow decision-making processes about what to tweet.

However, based on the interviews conducted, this research identified only three genuine risks associated with Twitter use by courts at present. These do not include the risks that arise when individuals, such as jurors, court officials and journalists, use Twitter and the difficulties associated with such activities. The three risks that need to be considered are:

• Human error – which can arise due the nature of the tool. Tweets can be sent at any time of the day, from any location, and are generally quick to send, due to the limited numbers of characters. It can be easy to send out a tweet without checking facts, spelling and so on. This has not been a cause for concern with any of the courts but was recognised by the interviewees.

• Confidentiality and privacy – in lower tier courts like the Magistrates Court, case reports are generally not publicly available or easily accessible. Tweeters need to be aware that, by including the names of parties and details of cases in a tweet, they may be placing private details in the public sphere. A tweet is accessible by all. The relevant acts governing the individual courts need to be considered when deciding what and how much to include in a tweet.

• Internal lack of support for the use of Twitter – this can lead to tweets becoming predominantly administrative in content and failing to improve public awareness of activities.

The level of the court influenced the content of tweets and the potential risk. There is only a low level of risk associated with tweets about court closures and other administrative details, links to media articles and court appointments. The risks are higher when the names of parties are being tweeted and links to court hearings are provided. The public interest in tweets from lower tier courts is obviously lower than in the tweets around judgments.

Although not identified as a risk at present, digital exclusion is a future risk. Demographic studies show that use of social media is determined by educational background, which may mean that increased use of social media could exclude some people.^[57] As the use of Twitter and other social media tools by courts increases, a portion of the community may be disadvantaged. Mobile phones may be ubiquitous, owned by the young, disadvantaged, elderly and people in remote locations, but this broad ownership does not mean that all of the community uses their phone for social media. In the United States, while 40 per cent of the adults with a phone use their phone for social networking, significantly more educated and higher earning adults are using their phone this way than less-educated and lower-earning adults.^[58] It is likely that similar statistics apply in Australia. As stated previously, this study did not examine juror access to social media and citizen reporting, which remain areas of considerable risk for courts.

5 Conclusion

The objective of this study was to explore the use of Twitter in the Australian court system as a means of disseminating information about decisions as well as informing the public on administrative matters. At the time of our study, only four out of the 37 courts in the Australian court hierarchy were using social media tools, and, the only tool adopted was Twitter. More courts have started using social media, including Twitter, Facebook and YouTube.^[59] The Facebook accounts in particular illustrate some of the issues associated with using a two-directional social media tool. One of the reasons Victorian courts were the first to adopt Twitter may have been the existence of a very active court social media group in Victoria, comprising representatives from the courts, from the Justice Department and from justice-related bodies such as the Judicial College of Victoria, the Law Institute and the Victorian Sentencing Advisory Board. As well, support for the use of Twitter by senior court officials, the Chief Justice of the Supreme Court, the Chief Judge of the County Court and the Chief Magistrate has been pivotal.

The four court Twitter accounts we examined worked well, developing a new channel of communication, albeit a one-way channel. The court officers we interviewed were confident that they were reaching new audiences who would not normally visit their websites. The cost of operating the accounts was low, depending on one, sometimes two people to manage content, usually as part of their existing duties.

Not all courts had developed written policies when they had commenced their accounts but generally, they had clear idea of their intended audiences. Regular reviews of these objectives are needed as internal champions of the use of social media tools can move to other positions.

This study found that the risks in courts using a social media tool like Twitter are few.^[60] Like any organisation, there needs to be support for the use of the tool by senior management to ensure that the information being communicated remains relevant and of interest to recipients and does not become a miniature version of a website. There are certain statutory restrictions placed on courts in respect of confidentiality and privacy and these have to be complied with. Finally, the responsible tweeters need to be of a sufficient level of authority to be empowered with the management of the account. Twitter is a social media tool that is one-directional and relatively easy to manage. Moving into tools like Facebook, for instance, which one or two courts were considering or proposing to do at the time of our interviews, will require more resources.

The public interest in tweets from lower tier courts is obviously lower than in the tweets around judgments and court proceedings. Whether courts are in a position ‘to better explain themselves to the public’ through Twitter accounts as envisaged by Chief Justice Warren is not immediately obvious when most of the content of tweets are examined. The Twitter accounts provide a new channel of communication, but there is little evidence that, for the lower levels of courts at least, a new audience has been engaged. This study has found that for courts, Twitter as a social media channel may not be the most appropriate to engage public interest, but there are likely to be challenges in using other social media tools such as Facebook.

^[*] Corresponding author Emeritus Professor Margaret Jackson, LLB (Melb), PhD (Melb), MBus (RMIT), Grad Dip Cont Ed (UNE). Dr Marita Shelly, BBus (RMIT), PhD (RMIT), Grad Dip Info Man (RMIT). The authors acknowledge the funding provided by the AuDA Foundation for this project and support from the CRC Smart Services.

^[1] Twitter is a micro-blogging service that limits users to 140 characters. It is easy to use, location free and can be used via a mobile phone. Currently it is used by 17 per cent of social media users in Australia and 23 per cent of social media users in the United States. See, eg, Sensis, Sensis Social Media Report 2015 (2015)

<https://www.sensis.com.au/assets/PDFdirectory/Sensis_Social_Media_Report_2015.pdf>;

Pew Research Centre, Social Networking Fact Sheet (2014)

<http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/> .

^[2] Jane Johnston and Alyce McGovern, ‘Communicating Justice: A Comparison of Courts and Police Use of Contemporary Media’ (2013) 6 International Journal of Communication 1667, 1679; Alyce McGovern and Murray Lee, ‘Police Communications in the Social Media Age’ in Patrick Keyzer, Jane Johnston and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead, 2012) 160, 160-174.

^[3] See <https:/twitter.com/turnbullmalcolm> as at 16 September 2015.

^[4] Marilyn Warren, ‘Open Justice in the Technological Age’ [2014] MonashULawRw 5; (2014) 40 Monash University Law Review 45, 53; Marilyn Warren, ‘Courts must use Facebook, Twitter to Counter “Skewing of Information”’, The Sydney Morning Herald (online), 1 September 2011

<http://www.smh.com.au/technology/technology-news/courts-must-use-facebook-twitter-to-counter-skewing-of-information-chief-justice-20110901-1jmr1.html> .

^[5] Leah Findlay, ‘Courting Social Media in Australia’s Criminal Courtrooms: The Continuing Tension between Promoting Open Justice and Protecting Procedural Integrity’ (2015) 27 Current Issues in Criminal Justice 237, 239-242; Alysia Blackham and George Williams, ‘Social Media and the Courts’ (2014) 88 Law Institute Journal 31, [8]; Sarah Evans, ‘Courted by Social Media: Australian Courts Have Been Quick to Embrace Social Media; Despite This, Practitioners Are Still Urged to Pause Before Posting’ (2014) 52 Law Society Journal 51, 53; Marilyn Krawitz, An Examination of Social Media's Impact on the Courts in Australia (PhD thesis, Murdoch University, 2014), 66; Patrick Keyzer, ‘Who Should Speak for the Courts and How? The Courts and the Media Today’ in Patrick Keyzer, Jane Johnston and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 5, 5-6; Paul Lambert, Courting Publicity: Twitter and Television Cameras in Court (Bloomsbury Publishing, 2011), 33.

^[6] Out of a total of 37 federal, state and territory courts in Australia,

^[7] Judith Gibson, ‘Judges, Cyberspace and Social Media’ (2015) 12 Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 237, 252-254; Alysia Blackham and George Williams, 'Australian Courts and Social Media' (2013) 38 Alternative Law Journal 170, 171-173; Jane Johnston, ‘Courts' New Visibility 2.0’ in Patrick Keyzer, Jane Johnston and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead, 2012) 41-54.

^[8] Kristen Lovejoy, Richard D Waters and Gregory D Saxton, 'Engaging Stakeholders Through Twitter: How Nonprofit Organizations are Getting More Out of 140 characters or Less' (2012) 38 Public Relations Review 313, 316-317.

^[9] Findlay, above n 5, 239-242; Warren, above n 5, 6.

^[10] Anne Wallace and Jane Johnston ‘Tweeting from Court: New Guidelines for Modern Media’ (2015) 20 Media and Arts Law Review 15, 15-32; Chief Justice Paul de Jersey AC, ‘The Courts and the Media in the Digital Era’ (Speech Delivered at Bond University, Western Australia, 12 February 2011).

^[11] Findlay, above n 5, 239-242; Michael S Sommermeyer, All-a-Twitter: Harnessing New Media for Judicial Outreach and Communication (2011) National Center for State Courts

<http://ncsc.contentdm.oclc.org/cgi-bin/showfile.exe?CISOROOT=/ctmedia & CISOPTR=28>

^[12] See, eg, the Court Security Act 2005 (NSW), amended in 2013 to introduce s 9A, which prohibits the unauthorised transmission of court proceedings from courtrooms.

^[13] Beverley McLachlin, ‘The Relationship Between the Courts and the News Media’ in Patrick Keyzer, Jane Johnston and Mark Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 24; Patrick Keyzer et al, ‘The Courts and Social Media: What Do Judges and Court Workers Think?’ (2013) 25 Judicial Officers’ Bulletin 47, 48.

^[14] David Banks, 'Tweeting in Court: Why Reporters Must be Given Guidelines’, The Guardian (online), 15 December 2010

<http://www.theguardian.com/law/2010/dec/15/tweeting-court-reporters-julian-assange>

Lambert, above n 5, 33; Wallace and Johnston, above n 10, 15-32.

^[15] Using Wordpress.

^[16] Sommermeyer, above n 11, 51.

^[17] Conference of Court Public Information Officers, 2014 CCPIO New Media Survey (6 August 2014) 4

<http://ccpio.org/wp-content/uploads/2014/08/CCPIO-New-Media-survey-report_2014.pdf> .

^[18] Ibid, 4.

^[19] Ibid, 5.

^[20] Ibid, 12.

^[21] Press Association, 'Tweeting Allowed in Supreme Court', The Guardian (online), 3 February 2011

<http://www.theguardian.com/law/2011/feb/03/tweeting-allowed-in-supreme-court> .

^[22] Ibid; Supreme Court of the United Kingdom, ‘Press Notice: Guidance Issued for Tweeting the Twists and Turns of Supreme Court Cases’ (Press Notice 2, 3 February 2011)

<http://www.supremecourt.uk/docs/pr_1102.pdf> .

^[23] See Judges Scotland at <https://twitter.com/judgesscotland>.

^[24] See The Supreme Court, Twitter Policy for The UK Supreme Court (February 2012) <https://www.supremecourt.uk/twitter-policy.html>.

^[25] Gibson above n 7, 244-245; Sylvia Kierkegaard, ‘Twitter Thou Doeth?’ (2010) 26 Computer Law & Security Review 577, 583-585; Emily M Janoski-Haehlen, ‘The Courts are All a‘Twitter: The Implications of Social Media Use in the Courts’ (2011) 46 Valparaiso University Law Review 43, 44-45; Pamela D Schulz, 'Trial by Tweet? Social Media Innovation or Degradation? The Future and Challenge of Change for Courts' (2012) 22 Journal of Judicial Administration 29, 35.

^[26] Timebase, How and Why the Law Uses Twitter, Facebook and Social Media (2014) <http://www.timebase.com.au/news/2014/AT144-article.html> .

^[27] See, eg, County Court Victoria, Guidelines for the Media (March 2015)

<https://www.countycourt.vic.gov.au/sites/default/files/County%20Court%20Guidelines%20for%20the%20Media%20%2810%20March%202015%29_FINAL_0.pdf>.

^[28] Magistrates Court of Victoria, Use of Electronic Devices Policy for the Magistrates Court of Victoria (30 April 2012)

<http://www.magistratescourt.vic.gov.au/publication/use-electronic-devices-policy> .

^[29] Krawitz, above n 5, 132; Patrick Keyzer et al, above n 13, 48.

^[30] Findlay, above n 5; Brian F Fitzgerald, Cheryl Foong and Megan Tucker, ‘Web 2.0 Social Networking and the Courts’ (2012) 35 Australian Bar Review 281, 295-297.

^[31] Kerry O’Shea, Social Media - Its Impact and Challenges on Court Reports, Juries and Witnesses (9 September 2011) 2-6

<http://www.aija.org.au/Criminal%20Justice%202011/Papers/O'Shea.pdf> .

^[32] Janoski-Haehlen, above n 25, 44-45; Lambert, above n 5, 79.

^[33] See, eg, United State Courts, Code of Conduct for United States Judges (20 March 2014) <http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#c> American Bar Association, Formal Opinion 462: Judge’s Use of Electronic Social Networking Media (21 February 2013)

<http://www.americanbar.org/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf>

The Australasian Institute of Judicial Administration Incorporated, Guide to Judicial Conduct (2007)

<http://www.supremecourt.wa.gov.au/_files/GuidetoJudicialConduct(2ndEd).pdf> .

^[34] Judith Gibson, Should Judges Use Social Media? (2013), 11-13 <http://www.districtcourt.justice.nsw.gov.au/Documents/Should%20Judges%20use%20social%20media.pdf> .

^[35] Meeyoung Cha et al, ‘Measuring User Influence in Twitter: The Million Follower Fallacy’ (Paper presented at the 4th International AAAI Conference on Weblogs and Social Media, Washington, May 2010) 8.

^[36] Lambert, above n 5.

^[37] Andrea Kavanaugh et al, 'Social Media Use by Government: From the Routine to the Critical' (2012) 29 Government Information Quarterly 480, 482-283; Sergio zo-Vela, Isis Gutiérrez-Martínez and Luis F Luna-Reyes, 'Understanding Risks, Benefits, and Strategic Alternatives of Social Media Applications in the Public Sector’ (2012) 29 Government Information Quarterly 504, 505-506.

^[38] David Landsbergen, ‘Government as Part of the Revolution: Using Social Media to Achieve Public Goals’ (2010) 8 Electronic Journal of e-Government 134, 135-145; Katherine Bladow and Joyce Raby, Using Social Media to Support Self-Represented Litigants and Increase Access to Justice (2011)

<http://www.ncsc.org/sitecore/content/microsites/future-trends-2011/home/Social-Media/2-2-Using-Social-Media-to-Support-Self-Represented-Litigants.aspx> .

^[39] David Stuart, The Problem with Measuring Twitter (2011)

<http://www.researchinformation.info/features/feature.php?feature_id=341> .