Top judge: Social media is a threat to justice

Chief Justice Susan Denham said concerns over social media were “widespread and real” and that new laws were needed.

Her comments follow concerns during the Jobstown trial over the use of social media by supporters of the seven defendants and the use of Twitter by defendant Paul Murphy TD, who even received a warning about his tweets from the Director of Public Prosecutions.

Speaking at the launch of the Courts Service Annual Report 2016, Ms Justice Denham said the “fundamental” right to a fair trial needed to be protected.

She is sending a draft discussion paper this week to the presidents of the various courts in a bid to draw up rules on the area.

“Concerns over social media are widespread and real,” said Chief Justice Denham. “There are genuine concerns over the dissemination of false claims.”

She said, to date, it had been rare for courts in Ireland to use contempt of court laws to curb “inaccurate and disruptive online communications” about cases.

Speaking days before her retirement, she said it would be naive not to plan for the future in this area.

“There are several areas we need to address in protecting the right to a fair trial of an individual in this era of social media.

“The fundamental right to a fair trial does not change in the face of any new means of communication. Rules can and must reflect the new reality of same.”

She highlighted three stages to the process:

  • Consider draft guidelines regarding the ‘who, when and what’ of using social media in courtrooms;
  • Discuss with those who use social media in and around courts about the guidelines;
  • Look at legal reform to take cognisance of the reality of social media.

“In this regard,” she said, “I will this week send to the presidents of each court a draft discussion paper on guidelines on the use of social media in the courts.

“I will ask the Courts Service to engage with the media and legal profession on this issue.”

Also speaking at the launch, Justice Minister Charlie Flanagan welcomed the review and said it would support a similar examination he had initiated after the Jobstown trial.

The Jobstown defendants were declared not guilty last month.

“This is an issue that has arisen on a number of occasions in recent times,” he said. “I want to acknowledge the importance of what the chief justice has said and I am keen to have a review with a particular reference to the applications of social media in civil law on the matter of contempt of court.”

A couple of days after the trial ended, Mr Flanagan said he was keen to review the area, saying courts must operate without any undue influence or duress.

Yesterday, he added: “I look forward to working closely with the Courts Service in order to ensure any recommendations that may be forthcoming will be acted upon and I’m reviewing the law at the moment in that area because I think its important that the law keeps pace with advances in technology and we ensure that everybody is entitled on all occasions to a free and fair trial without outside influence.”

Legal sources said that guidelines have been produced in the UK and the US, including on directing jurors regarding their use of social media and controlling usage in the courtroom.

“One of the issues is who can or should use social media in court,” said a source. “If they can use it, when they can use it, and what they can say.”

In some countries, only bona fide members of the press and lawyers are allowed to use social media — everyone else is prohibited.

Since 2011 in England and Wales, if a member of the public wants to use live text-based communications, such as email and social media, in court, they must make an application to a judge.

The rule does not apply to the media.

Last year guidelines were issued by the Lord Chief Justice’s office in Northern Ireland that members of the public could not use social media or email from court.