Since then, the Magistrates' Court has taken to twitter itself at @MagCourtVic, and today — hat-tip to @MsLods — the Court released its Electronic Devices Policy, due to take effect on 3 Sep 2012. (I'm still not sure what the foundation is for a court policy, as opposed to a practice direction, and if there's a reason the Court didn't opt for a practice direction, or if it will make any difference to the enforceability of the policy.)
The policy provides:
Upon entering a MCV courtroom, you must not:
- Use your mobile telephone
- Take photographs or make audio or video recordings of court proceedings, without permission of the presiding magistrate
- Use any electronic device where such use constitutes instantaneous publication
- (for example social media, such as Twitter or live blogging)
The use of laptops and tablet computers is allowed for court and legal business, however these devices cannot be used if the device causes any disruption to the court.
Most of this seems unobjectionable and sensible, but I wonder about the prohibition on tweeting and blogging. Does a blanket prohibition contravene the implied freedom of communication on government and political matters, from Coleman v Power (2004) 220 CLR 1, Lange v ABC (1997) 189 CLR 520 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106? Australian courts have considered the issue of live tweeting, but not very often yet. (And lawyers need to be careful to not breach any ethical or professional obligations too.)
The UK Courts now have a policy position on this, permitting live tweeting routinely, though noting likely restrictions or prohibitions in criminal cases. There are several good reasons why this might be necessary. It could be possible for one witness, or observer, to tweet messages to future witnesses about the proceedings, undermining an order-out for witnesses. Or a voir dire ruling on admissibility or privilege would be effectively undermined if the argument was published online. Similarly too, restrictions on identification of witnesses could compromised either deliberately or unwittingly by a courtroom tweeter. There are indeed real problems for allowing carte blanche to social-media junkies in the court room.
At any rate, this policy is a welcome development for our jurisdiction, as is the Magistrates' Court joining the twittersphere.