Social Media and the Courts

Omar Ha-Redeye Law Tech Camp June 18, 2011

Overview

Social Media in the Courts
How much social media should be going on inside courtroom proceedings?
What is the appropriate balance between competing interests?

Granger, J. on Computers in Court
When I was appointed to the bench in 1988, there were very few judges in Ontario using computers. For many years thereafter many judges in Ontario appeared to look on computers with disdain, clinging to ancient courtroom traditions ...
Today most judges in Ontario recognize the benefits that digital technology can bring to the judicial system but are, as a result of their inability to touch type, reluctant to encourage counsel to use computers in the courtroom to display documents.
Justice B. T. Granger . . Using Litigation Support Software in the Courtroom - Better Lawyer, Better Judge, Better Justice - The Need For Judicial Leadership. National Center for State Courts, Ninth National Court Technology Conference, September 13-15, 2005, Seattle, Washington.

Recording Court Proceedings
S. 136 Courts of Justice Act
Prohibition against photography, etc., at court hearing
no person shall:
take or attempt to photograph, motion picture, audio record or other record capable of producing visual or aural representations by electronic means or otherwise
publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record

Exceptions
All are subject to judicial discretion
unobtrusively handwritten notes or sketches
lawyer, a party, journalist making audio recording for purpose of supplementing or replacing handwritten notes
making of a record
investitive, naturalization, ceremonial or other similar proceeding
on consent of parties and witnesses
for such educational or instructional purposes

Offence
fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both.

Public Access
S. 135 Courts of Justice Act
...all court hearings shall be open to the public.
Exception
The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
Disclosure of information
(3) Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Rules of Professional Conduct
Rule 1.03 Standards of the Legal Profession
“ a lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions”
Rule 4.06 Encouraging Respect for the Administration of Justice
“ A lawyer shall encourage public respect for and try to improve the administration of justice.”
Commentary:
“ A lawyer's responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations.”

Is Live-Tweeting Broadcasting?
UNITED STATES OF AMERICA vs. JOHN MARK SHELNUTT , (2009) U.S. DISTRICT COURT, MIDDLE DISTRICT OF GEORGIA, COLUMBUS DIVISION, CASE NO. 4:09-CR-14 (CDL)

Social Media Out of the Courtroom
How is social media use outside of the courtroom treated in legal proceedings?

Juries
Judge Wilkins:
“ certain things will occur that will, in fact, taint a jury pool and interfere with the administration of justice and will, in reality, prevent the accused from getting a fair trial.”

Social Media as Evidence
How much weight should be afforded to information and photos online?
Should the context of social media be considered?

Facebook in Litigation Source: Ronald Podolny. When “Friends” Become Adversaries: Litigation in the Age of Facebook. (2009) 33 Manitoba Law Journal . http://robsonhall.ca/mlj/images/Articles/33v2/podolny.pdf

Sparks v. Dubé, 2011 NBQB 040
Leduc v. Roman, [2009] O.J. No 681 (O.S.C.J.))

Use of Social Media Experts?
R. v. Sather, 2008 ONCJ 98
expert evidence of Jesse Hirch called to explain how people use Facebook
people who profile themselves embellish their character
they deliberately say provocative things to elicit a response from their Facebook “friends”.
They construct an alternate persona.

Resources
NEW MEDIA AND THE COURTS (September 2010)
THE CURRENT STATUS AND A LOOK AT THE FUTURE
A REPORT OF THE NEW MEDIA COMMITTEE OF THE CONFERENCE OF COURT PUBLIC INFORMATION OFFICERS

Contact
http://omarha-redeye.com
[email_address]
@OmarHaRedeye
http://ca.linkedin.com/in/torontolawyer
http://www.facebook.com/TO.Lawyer

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Social Media and the Courts

by Omar Ha-Redeye

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