How and Why the Law Uses Twitter, Facebook and Social Media

Tuesday 18 March 2014 @ 11.44 a.m. | IP & Media | Judiciary, Legal Profession & Procedure | Legal Research

From just a casual scan of the Internet and the social media sites available these days, especially the more prominent ones like Twitter and Facebook, it is clear that they are capable, as more and more data is stored on them, of becoming tools or even aids for legal proceedings. Following is a brief overview of some of the more plausible examples that have surfaced so far.

In the Western legal system, social media now sees itself being used for everything from "blow by blow" reporting of  court proceedings, live reporting of the working of government, a source of evidence in legal proceedings and even for the service of legal claims.

The often made point is that these days from the moment a child (a citizen) is born it is a matter of minutes before by way of a photo and a post their existence is known and recorded in cyberspace. So given that many people broadcast so much detail of their personal life on social media sites it is no surprise that tweets and status updates have become a repository for legal evidence and look like growing further into tools with valid legal applications.

Use of Social Media as Evidence

The site WebPro News informs us that since sites like Facebook and Twitter took hold and the trend of submitting activity on social media sites has increased roughly since 2010 as a result social media has been a key component to nearly 700 legal cases in the USA.

In its article WebPro News shows how social media evidence can be used to establish evidence of:

  • a person's state of mind
  • communication
  • time and place
  • action.

An example of  a US case quoted illustrates the above, a woman who claimed to have been disabled by an accident during her marriage sought $850 per month in support form her ex-husband, evidence pulled from her Facebook and MySpace account established that for four years after her accident she had been an avid belly dancer. The judge accepted this as evidence for denying her the support claimed.

Use of Social Media in Divorce Matters

WebPro News says that in the area of divorce law social media based evidence is also playing an increased role in divorce proceedings and quotes UK data from a survey carried out in December 2011 which found that Facebook turned up in 33 percent of behaviour petitions in the UK increased from 20 percent when the same survey was first conducted in December 2009.

Facebook evidence was found to be most prominently, evidence of a spouse’s interaction with the opposite sex on Facebook. Other prominent reasons for Facebook turning up were, using Facebook to comment on ex-spouses pages after the couple had split or attacking the spouse’s Facebook wall during the divorce proceedings.

Use of Social Media to Serve Illusive Defendants

The first instance of this was in 2009 in the UK where the UK High Court gave permission for an injunction to be served via the social-networking site Twitter with the order to be served against an unknown Twitter user who was anonymously posting to the site using the same name as a right-wing political blogger. The order demanded the anonymous Twitter user reveal their identity and stop posing as the political blogger stating also that the Twitter user was breaching the copyright of the political blogger. This use relied on the UK law which provides that an injunction does not have to be served in person and can be delivered by several methods including a fax or an e-mail.

Other examples include the lawyer (again in the UK) who used Facebook to issue a court summons to a difficult to find debtor and various reports of foreclosure notices being sent via Facebook.

Use of Social Media in Court Proceedings

In the UK, the Courts have allowed proceedings to be live tweeted or reported electronically for some time (as far back as 2010) however such, has been very much only allowed with the guidance of the court and the judges as to what the limitations on the use of social media are and who is actually allowed to tweet or use technology (Facebook, Blogs etc) in the courts.

Essentially, the position appears to be that the use of Twitter from the courts of England and Wales for a member of the public wishing to use a mobile phone or similar device to send live text-based reports is that they must first ask permission or make a formal application to the court.

For a representative of the media or a legal commentator using live, text-based communications from court it is presumed that they do not pose a danger of interference with the proper administration of justice in the individual case. This is presumed because:

". . . the most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings. As such, a representative of the media or a legal commentator who wishes to use live, text-based communications from court may do so without making an application to the court".

In Australia as the Law Institute of Victoria (the LIV) reports:

"The use of social media to communicate real time information about the work of the courts and tribunals is a relatively new phenomenon. It is generally accepted that the first case to allow live tweeting of proceedings was the copyright case, Roadshow Films Pty Ltd v iiNet Ltd in the Federal Court in 2009."

Generally the position seems to be heading in the direction of that expressed above for the UK, namely, that in appropriate cases the courts may allow the use of social media and tweeting where permission is sought formally and no harm is seen as coming from the permission being granted. However, in the main the courts and relevant governments in several Australian jurisdiction have moved to restrict permission to those who are either accredited reporters (journalists, legal commentators) or legally qualified personal aware of the laws of evidence and contempt and the need for accuracy in reporting court proceedings.

The LIV cites the following as the status of the key Federal Courts and Tribunals:

  • High Court: Does not allow the use of electronic devices.
  • Federal Court: Does not have a policy on the use of electronic devices, however it is generally allowed.
  • Family Court of Australia: Has a policy on the use of its Twitter account but does not have a policy on tweeting live from the courtrooms. Due to publishing restrictions under the Family Law Act, journalists and practitioners would need to obtain approval to tweet from the courtroom.
  • Federal Circuit Court of Australia: Does not have a formal policy on tweeting from its courtrooms. Due to publishing restrictions in the court’s family law jurisdiction, journalists and practitioners would need to obtain approval to tweet from the courtroom.
  • Fair Work Australia: Generally allows use of mobile devices in hearings at the discretion of the Member.

The position in State jurisdiction varies and it is best to check with the individual court in each instance.

Ahead for Social Media and the Law

We can expect that as it adapted to email and other means of enhanced communication the legal system will also make sense of social media both in terms of its advantages and disadvantages. The expectation should be to see more use being made of it both as an evidence source and communication tool.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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