Bloggers in the Court

Judges in two prominent Ontario cases recently gave journalists the go-ahead to use wireless devices like laptops and smartphones to report live from courtrooms. Ontario Superior Court Associate Chief Justice Douglas Cunningham permitted Twittering and blogging from the influence-peddling trial of Mayor Larry O’Brien, while reporters in London are doing the same as they cover the Bandidos first-degree murder trial.

Darryl Cruz, litigation practice group leader with McCarthy Tétrault LLP in Toronto, is no fan of this sort of social media in the courtroom. “I think it leads to inaccuracy, number one,” he says, because it means journalists are multi-tasking rather than listening carefully. As well, 140-character sound bites posted in real time are unlikely to capture the context or nuances of a case.

“If you go to court first thing in the morning and you sit there all day long and spend time listening to the evidence, it develops a flavour and a kind of momentum over time,” says Cruz. “By the end of the day, at least you can put it together with some context. If you’re doing it as you go? if you’re writing as you’re listening ? then I think you’re not paying the same kind of attention.”

It has nothing to do with freedom of speech, he emphasizes. “The information will come out of the court one way or another at the right time. It’s about accuracy.”

But David Fraser, chair of the privacy practice group with McInnes Cooper in Halifax, believes the two Ontario trials probably represent “the front of a wave” as more and more communications technologies become mobile and wireless. The issue might not be whether these technologies are good or bad, but how best to manage them. “I think it’s going to be hard to put the genie back in the bottle now that it’s out,” he says.

Fraser says it’s imperative that lawyers, judges, court administrators, journalists and especially legislators start giving some thought to taming the genie. They might start by considering the rapidly evolving notion of who can be considered a journalist.

“If I sit in a courtroom and send an email to six people about a hearing, is that broadcasting or publishing? Probably not,” says Fraser. “But if I’m Twittering it, and I have six followers, then it’s potentially available to everybody who wants to search online, just the same as a Globe and Mail or National Post article is. So maybe some of the definitions in legal provisions like the criminal code may need to be reconsidered or rethought.”

Another issue raised by Twittering and blogging from courtrooms pertains to subsequent witnesses gaining access to information about testimony that’s been given previously, which could affect their own testimony, notes Fraser.

Nonetheless, he sees a potential upside to the phenomenon. While televised public inquiries don’t usually break any ratings records, he says people do like to watch them. They also like to watch prominent trials broadcast from the U.S. While Twittering and blogging lack that visual element, “there are certainly people who would want to keep up to date, maybe minute by minute or at least regularly, on what is happening in a particular proceeding,” and Twittering and blogging can facilitate that.

Nonetheless, Fraser agrees with Cruz about the potentially negative impact of Twittering and blogging on courtroom reporting. “Legal proceedings have a lot of nuance,” he says. “The best sort of legal reporting is the kind that provides context and background, and is not just a handful of the most interesting or potentially salacious quotes.”

Martin Felsky, a consultant, lawyer and legal technology consultant who’s been advising the Canadian Judicial Council on technology issues for more than two decades, says for their part, judges are primarily concerned about decorum in the courtroom, about the accuracy of the reporting that goes on, and about the potential prejudice to parties or witnesses if information that ought to remain private gets published.

Like Fraser, Felsky is interested in the notion of who is considered a journalist. “If there’s going to be access to technology in the courtroom, should it be limited to just lawyers and the press, or open to everybody?” he asks.

Judges are interested in taking advantage of whatever benefits there might be to allowing technology in courtrooms, says Felsky—but first they need to figure out how to control that technology, and so far, there don’t seem to be any obvious solutions. Meanwhile, as more judges permit Twittering and blogging, it’s going to become increasingly difficult for others to ban it.