Omar Ha-Redeye

Law Tech CampJune 18, 2011

Overview

Social Media in the CourtsHow much social media should be going on

inside courtroom proceedings?What is the appropriate balance between

competing interests?

Granger, J. on Computers in CourtWhen I was appointed to the bench in 1988, there

were very few judges in Ontario using computers. For many years thereafter many judges in Ontario appeared to look on computers with disdain, clinging to ancient courtroom traditions...

Today most judges in Ontario recognize the benefits that digital technology can bring to the judicial system but are, as a result of their inability to touch type, reluctant to encourage counsel to use computers in the courtroom to display documents.

Justice B. T. Granger.. Using Litigation Support Software in the Courtroom - Better Lawyer, Better Judge, Better Justice - The Need For Judicial Leadership. National Center for State Courts, Ninth National Court Technology Conference, September 13-15, 2005, Seattle, Washington.

Recording Court ProceedingsS. 136 Courts of Justice ActProhibition against photography, etc., at court

hearing

no person shall:

take or attempt to photograph, motion picture, audio record or other record capable of producing visual or aural representations by electronic means or otherwise

publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record

ExceptionsAll are subject to judicial discretion

unobtrusively handwritten notes or sketches lawyer, a party, journalist making audio recording

for purpose of supplementing or replacing handwritten notes

making of a recordinvestitive, naturalization, ceremonial or other

similar proceedingon consent of parties and witnessesfor such educational or instructional purposes

Offence

fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both.

Public AccessS. 135 Courts of Justice Act...all court hearings shall be open to the public.

ExceptionThe court may order the public to be excluded from a

hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

Disclosure of information(3)Where a proceeding is heard in the absence of the

public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Rules of Professional ConductRule 1.03 Standards of the Legal Profession

“a lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations, and institutions”

Rule 4.06 Encouraging Respect for the Administration of Justice “A lawyer shall encourage public respect for and try to

improve the administration of justice.”Commentary:

“A lawyer's responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations.”

Is Live-Tweeting Broadcasting?UNITED STATES OF AMERICA vs. JOHN

MARK SHELNUTT, (2009) U.S. DISTRICT COURT, MIDDLE DISTRICT OF GEORGIA, COLUMBUS DIVISION, CASE NO. 4:09-CR-14 (CDL)

Social Media Out of the CourtroomHow is social media use outside of the

courtroom treated in legal proceedings?

JuriesJudge Wilkins:

“certain things will occur that will, in fact, taint a jury pool and interfere with the administration of justice and will, in reality, prevent the accused from getting a fair trial.”

Social Media as EvidenceHow much weight should be afforded to

information and photos online?Should the context of social media be

considered?

Facebook in Litigation

Source: Ronald Podolny. When “Friends” Become Adversaries: Litigation in the Age of Facebook. (2009) 33 Manitoba Law Journal. http://robsonhall.ca/mlj/images/Articles/33v2/podolny.pdf

Sparks v. Dubé, 2011 NBQB 040

 Leduc v. Roman, [2009] O.J. No 681 (O.S.C.J.))

Use of Social Media Experts?R. v. Sather, 2008 ONCJ 98

expert evidence of Jesse Hirch called to explain how people use Facebookpeople who profile themselves embellish their

characterthey deliberately say provocative things to

elicit a response from their Facebook “friends”. 

They construct an alternate persona.

Resources

NEW MEDIA AND THE COURTS (September 2010) THE CURRENT STATUS AND A LOOK AT THE FUTURE A REPORT OF THE NEW MEDIA COMMITTEE OF THE

CONFERENCE OF COURT PUBLIC INFORMATION OFFICERS

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