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The Open Court Principle in the Digital Era: Use of Social Media in Courtrooms


Koprivica,  Ana
Department I, Max Planck Institute Luxembourg, Max Planck Society;

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Koprivica, A. (2015). The Open Court Principle in the Digital Era: Use of Social Media in Courtrooms. Talk presented at Netherlands Institute for Law and Governance PhD forum "Law and Governance in the Digital Era". VU Amsterdam. 2015-11-20 - 2015-11-20.

Cite as: https://hdl.handle.net/11858/00-001M-0000-002B-7AB1-3
Although transparency - a conditio sine qua non for democracy and good governance - has become common parlance in almost every context, including that of court proceedings, the sustainability thereof has never been more debatable. One reason for this is the recent explosion in the use of social media in the courtrooms, both by observers and trial participants. (It is important to note at the outset that a distinction must be drawn here between these two categories of persons, since they are generally subject to different rules.) Just as “traditional” media, such as newspapers, radio and television did many years ago, media outlets that have emerged more recently like blogs, Twitter, Facebook, etc. pose numerous challenges today to one of the most fundamental institutions in any democratic state: courts. The paper seeks to establish to what extent the principle of publicity of court proceedings, understood in its traditional sense, is still sustainable under such circumstances. Reading Bentham’s description of publicity as “the keenest spur to execution and the surest of all guards against improbity” and the “very soul of justice” -words uttered long before the advent of modern media- in the spirit of today, one must rethink its meaning. The answer to the question of where to draw the line between when and what may or may not be said in social media is particularly demanding, given its wide range of users and the speed at which content can be shared and modified. In the era of modern technology, the open court principle, if applied in its traditional sense, may result in a grave loss of privacy. Such shifts in communication may thus also require a change in the application of the principle. The paper shall firstly address the challenges some courts have already faced by providing a comparative overview of relevant case law and practices, depicting the variations in common law and civil law countries as a consequence of different legal traditions. Such challenges include, among others: the risk of influencing witnesses’ testimonies; juror misconduct due to inappropriate use of social media during trials; the risk of prejudging the case in the media and the potential appearance of bias of decision-makers as perceived through their use of social media- all of which could have an adverse impact on the administration of justice and undermine the fairness of the trial. As will be demonstrated, these issues have been tackled differently by different courts. Regulation in this area also varies greatly, from none in some legal systems to rather comprehensive rules of conduct in others. Given such diversity, it is safe to say that this is still an unsettled issue and a grey area of law which illustrates the delay with which law evolves in order to adapt to changing technologies. Accordingly, the paper shall finally propose ways in which to bridge the gap between the law and technological development, taking into account different conflicting interests such as: freedom of expression, the right to privacy of all involved in the proceedings, the principle of publicity, and the integrity and fairness of the process.