Twitter is both a source and subject of the news whether it be for super-injunctions, the election in Iran or Lady Gaga having 10 million followers. This article looks at the more prosaic subject of live, text-based communications from court.

The matter really came to prominence in England when Julian Assange was before Belmarsh Magistrates' Court on a bail hearing on 14 December 2010. The Chief Magistrate gave explicit permission to tweet proceedings "if it's quiet and doesn't disturb".

This presumably prompted the Lord Chief Justice, who had previously talked publicly about the subject, to issue interim practice guidance on 20 December 2010 on the use of live, text-based forms of communication (including Twitter) from court for the purposes of fair and accurate reporting. The guidance extends to mobile email and internet enabled laptops.

The guidance noted that photographs and sound recordings are prohibited by statute (and for photographs the prohibition dating back to 1925 is absolute). In contrast, as there is no statutory prohibition on the use of live, text-based communications in open court, Lord Judge felt it to be acceptable for an application to be made for permission to use these communications. The key question for the court is whether granting permission interferes with the proper administration of justice. As long as the communications are made on a silent device there ought to be no problem. The dangers are more likely in criminal trials where there might be a risk that witnesses are subjected to forms of pressure if their evidence is being publicised. Witnesses can however also be put under pressure in civil proceedings. There can be more mundane aspects of interference with justice; the guidance states that it will be appropriate, for example, to prohibit a mobile phone if it would interfere with the court's sound recording equipment.

In February 2011, the Supreme Court published a policy document on the same topic. Any lawyer, journalist or member of the public can tweet or use other forms of text-based communications provided they are silent and they do not disrupt proceedings in court. The position in the Supreme Court is different since there will be no witnesses or jurors and it is pretty rare for evidence to be adduced that has not already come before a lower court. Moreover Supreme Court proceedings are televised and, as from 16 May, streamed live on Sky News.

Also in February, the Judicial Office for England and Wales issued a consultation paper on behalf of the Lord Chief Justice on this topic. The consultation closed on 4 May 2011. The issues covered in the consultation include:

  • the potential to influence jurors and witnesses;
  • the fact that Twitter is live and therefore there is little opportunity to review tweets;
  • the normal rule that mobile phones should be switched off; and
  • the scope of the rule and whether it should it be limited to the media.

Many courts already tolerate the use of BlackBerrys provided they are on silent mode. In the majority of commercial cases, the risks are seen as minimal. The biggest danger is probably that of inadvertently disclosing confidential information. There is no way entirely to eliminate this except having both counsel and the judiciary alert to the issue.

The remarkable thing about this debate is how efficient and uncontroversial it has been. On the one hand this should be unsurprising since justice is supposed to be open. The idiosyncrasy is that for historical reasons photographs and sound recordings are prohibited and the judiciary has only been able to adapt because there is currently no statutory prohibition on live, text-based communications from the court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.