news The New South Wales State Government has flagged plans to amend court security legislation to ban the use of devices such as smartphones and tablets to communicate events inside courtrooms to those outside, in a move that could squash see a trend towards using Twitter to report court events live.
A number of jurisdictions around Australia, including in NSW, prohibit recording devices from being used in courts, except where judges otherwise allow them. However, such rules have proven hard to police, given the diminuitive size of modern recording devices.
However, in a speech to the NSW Parliament delivered late in 2012 (PDF) — and first reported by the Sydney Morning Herald this morning — NSW Attorney-General Greg Smith noted that he proposed to amend the state’s Court Security Act “to prohibit the unauthorised use of any device, including a smart phone or tablet, to transmit sounds, images or information forming part of court proceedings from a room, or other place where a court is sitting, to another place.”
“These amendments address recent security incidents in courts that have highlighted the fact that the existing legislation does not capture the capability of recent technology—for example, people in court transmitting witness evidence by smart phone to another witness waiting outside the court to give evidence,” said Smith. However, it’s not all bad news for those who might wish to live tweet or blog proceedings.
“However, it is important to preserve the principle of open justice,” Smith added. “Although not common, there may be circumstances in which journalists wish to use electronic devices to report on proceedings contemporaneously through new media, such as twitter or by blogging. While these circumstances are not expressly covered in the proposed statutory exceptions, there is a regulation-making power that will allow appropriate exemptions to cover these sorts of circumstances. The amendments in this bill will not commence until a date set by proclamation. This will allow time for appropriate regulations to be drafted. The regulations will be drafted in consultation with the courts and relevant stakeholders.”
Australia’s court systems have increasingly seen professional journalists and even amateurs use platforms such as Twitter and blogging systems to publish events live in court as they happen. One of the first high-profile uses of such technology by journalists inside a courtroom was the infamous lawsuit brought by the Australian Federation Against Copyright Theft against local ISP iiNet, which played out through several years from November 2008, including a High Court appeal
During the court proceedings it became common for journalists from technology media outlets such as ZDNet and The Australian to tweet live from the court proceedings. On the judgement days, dozens of journalists sat in the courtrooms, using Twitter and other platforms to broadcast the proceedings live.
The Law Society of NSW has already written to Smith expressing its concern about the legislation, describing the amendments as “problematic”.
“A legal practitioner may be in breach of proposed section 9A if he or she is in the courtroom and em ails a colleague who is assisting with the preparation of the case and provides information on the progress of the proceedings,” the society’s president Justin Dowd wrote in an open letter to Smith in late November (PDF).
“The amendment is too broad and will prohibit legal practitioners from taking necessary action while in court. It may lead to legal practitioners being forced to make applications to the court for permission to email or text colleagues or clients which will result in a waste of the court’s time. The Committees submit that proposed section 9A should be amended to provide that all legal practitioners are exempt from the operation of the section.”
“Legal practitioners should be entitled to communicate information outside of the courtroom consistent with their ethical obligations.”
I’ve got two things to say about the proposed amendment which NSW Attorney-General Smith is putting up here.
The first is that the amendment is clearly unworkable. Given the size of electronic devices these days, there really is no way for any judge in Australia to stop anyone using virtually whatever device they want in a court situation, whether it be a smartphone, a tablet or whatever. Sure, the NSW Government could on paper empower a judge to get smartphones, tablets and cameras kicked out of the court. But to do that you have to detect the use of such devices first. And when it’s a case of someone sitting up the back of the court, subtly typing on their smartphone or even (in a few years perhaps) subvocalizing into a tiny microphone, this kind of thing is pretty impossible to stop.
Secondly, there is the issue of whether any government should even try to stop this kind of activity. I was personally involved in setting reporters to report from the AFACT vs iiNet court proceedings, in my then-role as news editor of ZDNet Australia. At that point we found that live-tweeting the proceedings was hugely valuable in terms of informing the public about events in the courtroom, and provided a degree of transparency on the courts process which was previously not possible.
In these kind of high-profile cases, this kind of activity is necessary — and you can’t simply make a distinction between the work of professional journalists and amateurs either. If a journalist is entitled to use their tablet or smartphone in a courtroom, anyone else should be able to too.
Chalk all this up to another failed attempt by a government to block the encroachment of the Internet into every area of society.
Image credit: Capcom/Nintendo (Phoenix Wright: Ace Attorney video game)