The NSW Government proposal would expand the Court Security Act, which bans the use of recording devices in court, to include a ban on the unauthorised use of any device to transmit information forming part of court proceedings.
Tabled by state Attorney-General Greg Smith in November, the proposed laws threaten a 12-month prison term and $2200 fine for anyone found sharing information about a case on social media or privately to others.
Kevin Lynch (pictured), a media and technology partner at Johnson Winter & Slattery, said he commonly has a smartphone or tablet with him in court, which he uses to look at the AustLii app, pull up material on electronic files, or email other lawyers and support staff involved in the case.
“Occasionally I’ll give a brief update to the client, which will effectively go out over 3G to let them know how things are proceeding,” said Lynch.
“When I do use [electronic devices] I’m always mindful of using them, not in a surreptitious way, but in a way that doesn’t disturb the court, and I don’t think it’s in conflict with any of my obligations to the court or the client, in fact it makes things a lot easier from a practical point of view.”
Court reporters also use electronic devices to meet digital deadlines and keep the public informed contemporaneously on case proceedings via Twitter and blogs.
Smith said this is “not common” but Lynch, who regularly appears in court for the media, disagreed, arguing that the use of new media in court is part of the modern craft of court reporting.
“If [journalists are] pre-occupied with filing from court to meet a digital deadline it may increase the risk of them missing something in front of them, but I think experienced court reporters are used to dealing with those challenges … most are used to using the best technology that’s available to them,” said Lynch, adding that regular social media updates can help the public better understand technical aspects of a case.
Smith indicated certain exceptions will be made to protect principles of open justice, by way of regulations, but these are not covered in the proposed legislation.
Lynch said that, without clear exemptions in the legislation, regulations can come and go without being reviewed by Parliament.
“If you’re going to put a restriction which has the potential of restricting freedom of speech it’s best that you’re quite clear about the limits of those restrictions when you actually write the law,” he said.
Getting the judge’s express permission every time a lawyer or reporter wants to send an email, text message or tweet, would delay and create nuisance in the court, said Lynch.
“As long as [a report is] fair and accurate, a big part of openness in today’s context is speed and contemporaneity, so it’s a backward step to try and stamp on technology. Anything that would stamp on technology in order to obtain an end would be a mistake,” he said.
The NSW proposals come one month after attorney-generals around Australia agreed to seek a coordinated national approach to address the impact of social media on trials.
It takes a starkly different approach to that of the Victorian Supreme Court, which tweets judgments via its official Twitter account before a justice’s reasons are made available to the public.