By Kathleen Kriel

During the recent bail hearing of murder accused athlete Oscar Pistorius, many people across the world were mesmerised by their PCs, iPads, laptops and smartphones following journalists on Twitter to see what would happen next in the hearing.

The man in the street was tweeting his views on the matter, journalists in the court were tweeting statements made during the bail hearing and attorneys were warning people about what could and could not be said on social media platforms from a legal point of view.

Emma Sadleir, a Johannesburg attorney specialising in social media law at law firm Webber Wentzel, said: ‘Until recently, anyone wanting to follow each twist and turn of a case would have had to sit in the court room itself, but with the advent of electronic communication this is changing.’

In terms of being responsible for retweeting a comment by someone else, Ms Sadleir said: ‘When you retweet something you are responsible for its publication.’

The sub judice rule

In respect of the application of the sub judice rule to social media, Ms Sadleir said: ‘Sub judice operates from the date of arrest until the matter has been finally disposed of. Comments made on social media are treated the same as comments made on any other public forum. The law of contempt (sub judice) was clarified in the 2007 Supreme Court of Appeal case of Midi Television (Pty) Ltd v Director of Public Prosecutions (WC) [2007] 3 All SA 318 (SCA), at para 19, where it was held that:

‘‘[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. … [I]f a risk of that kind is clearly established, and if it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.”’

She added: ‘You will appreciate that this sets the standard very high – you need to show that a tweet creates a real risk that substantial and demonstrable prejudice to the administration of justice will occur. It would be very difficult to show that a judge would be swayed by commentary on Twitter. In South Africa, we do not have the added problem of a jury system.’

Breakthrough for tweeting in court

According to Ms Sadleir, the first breakthrough for tweeting in court came at the bail hearing of Julian Assange, the founder of whistle-blowing website WikiLeaks, in mid-December 2010. She said: ‘The judge, perhaps swayed by the overwhelming public interest in the case, expressly allowed tweeting and texting in court. As a result of this, the wider public was able to receive a blow-by-blow account of the Assange hearing wherever they were.’

Ms Sadleir made reference to attorneys who have tried to stop journalists reporting on social media. In this regard, she said: ‘In January 2011 [murder accused] Shrien Dewani’s lawyer tried to stop reporters using Twitter during his extradition hearing, saying it could “undermine the solemnity” of proceedings and was the reason there had been “all sorts of leaks” in the case.’ Ms Sadleir, added: ‘However, the judge held that it could increase accuracy, and as long as it was unobtrusive and did not interrupt proceedings and was accurate, tweeting could take place.’

In terms of the impact tweeting may have on the administration of justice, the Lord Chief Justice of England and Wales issued a guidance document titled ‘Practice guidance: The use of live text-based forms of communication (including Twitter) from court for the purposes of fair and accurate reporting, 2011’ (www.judiciary.gov.uk, accessed 7-3-2013). The document states: ‘It is presumed that a representative of the media or a legal commentator using live, text-based communications from court does not pose a danger of interference to the proper administration of justice in the individual case. This is because the most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings.’

According to the guidance document: ‘Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials, eg where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the court room may create pressure on witnesses, distracting or worrying them.’

Conclusion

Ms Sadleir said that the court room was not the exclusive domain of the legal fraternity.

‘In the modern day, both technology and legal jurisprudence have moved on significantly,’ she said.

Kathleen Kriel, kathleen@derebus.org.za

This article was first published in De Rebus in 2013 (April) DR 7.