Should Australian court staff consider using social media to increase confidence in the judiciary?

Objectives: This task addresses the following subject learning objectives: 1, 2 and 3. This task contributes specifically to the development of the following graduate attributes: 2.0, 3.0 and 5.0

Length: 2000 words (not including footnotes)

Task: Students will be required to complete and critically assess a research type question.

Referencing: Quotations from texts, journals and cases should be kept to a minimum and must be properly referenced.

Do not refer to student texts, nutshell books, solicitor firm websites, blogs or research essays.

Footnoting must follow the conventions set out in the Australian Legal Guide to Citation (3rd edn).

 

ANSWER ONE QUESTION ONLY FROM THE CHOICE OF FOUR BELOW:

Question 1

In the abstract to his article ‘Proportionality: A Cultural Revolution’, Farrow describes ‘proportionality’ in civil litigation as:

A mandate designed to push lawyers, judges and litigants to conduct civil cases in ways that are faster, cheaper, more efficient and that make sense in the context of – ie that are “proportional” to – the issues and/or amounts involved in legal proceedings. The fundamental motivation behind the introduction of proportionality is to improve the administration of, and access to, civil justice.1

Farrow suggests that proportionality is problematic. Discuss Farrow’s thesis with reference to at least two additional recent authorities (that is, two cases; or a case and a journal article, published since 2010).

Or

Question 2

The common experience of many judges with long involvement in commercial disputes, even of the most complex kind, is that by the end of the trial process there will usually be, at most, a dozen material documents.2

What does Keane J say are the problems associated with discovery in litigation and what are some possible solutions? Discuss his Honour’s article with reference to at least two additional recent authorities (that is, two cases; or a case and a journal article, published since 2010).

1 T Farrow, ‘Proportionality: A Cultural Revolution’ (2012) 1 JCivLP 151 at 151.

2The Hon PA Keane, ‘The Early Identification of Issues’ (2011) 1 JCivLP 14 at 16.

Or

Question 3

Should Australian court staff consider using social media to increase confidence in the judiciary? Discuss with reference to Marilyn Krawitz’s article ‘Summoned by social media: Why Australian courts should have social media accounts’3 and at least two additional recent authorities (that is, journal articles and/or cases, published since 2010).

Or

Question 4

The role of the mediator is wholly inappropriate for a court officer. Private discussion by each party with the mediator lies at the heart of the mediation process. It is a welcome development that courts are encouraging mediation but, if courts provide mediators from their own personnel, they place at risk public confidence in the integrity and impartiality of the judicial system.4

Do you agree with this statement? Have times changed? Discuss with reference to at least two additional recent authorities (that is, journal articles and/or cases, published since 2010).

3M Krawitz, ‘Summoned by social media: Why Australian courts should have social media accounts’ (2014) 23 JJA 182.

4Hon Sir L Street, ‘Mediation and the Judicial Institution’ (1997) 71 ALJ 794 at 794.

SEE SAMPLE ESSAY

Introduction

Numerous organisations as well as individuals are presently making use of social media and, therefore, even the courts are capable of gaining confidence from this particular use of social media. Through the use of social media, the courts are in a position to offer various kinds of information to the public concerning the recent judgments, as well as the manner in which the courts are working. Presently, very few courts within Canada, United Kingdom, as well as Australia make use of social media.

This essay offers highly comprehensive information concerning social media, the benefits of social media to the society and the benefits that can be gained by the courts from the use of social media. Some of the major platforms of social media that are highly suitable for the courts have also been provided and some of the various problems that may arise from the adoption of social media will also be discussed. The ways through which the courts are capable of proactively dealing with the problems have also been provided by the paper.

During early years when social media was used within the courts, scepticism was so rampant[1].  Through the experiences that have been gained, a huge chunk of the problems that were faced have been found to be minimal and various kinds of solutions have been found for the problems that were being experienced. A number of advantages that are brought about by the use of social media have also been found.

Some of the studies carried out within the United States have generally indicated that a number of the judges have been in support of the use of social media considering the benefits that they have gained themselves and the benefits that their courts have gained[2]. From the research, a number of the judges have been less concerned with the problems that are brought about by social media use. They have also disregarded the fact that it’s use compromises ethics.

The courts generally hold a special place within the government given that they are impartial arbiters of various legal disputes. The court leaders ought to fulfil the trust of the public in order to ensure that they attain the highest service levels as they also strive to uphold the rule of law, and social media can be used to do this. However, the biggest challenge that is faced is securely and effectively leveraging the tools within the settings of the court[3].

 

Definition of social Media

Social media refers to the internet-based tools which promote information sharing among different people. Social media can also refer to the software that is mainly used for the maximization of accessibility, and self-publication of the users. Social media entails a mix of technology, as well as social interaction that plays a major role in ensuring that value is created and they mainly include LinkedIn, Facebook, Wikipedia, Twitter, as well as YouTube.

Generally, there are numerous societal forces, as well as expectations which are regarded as the driving factors for the extensive utilisation of social media and they include the digital natives, and the “Millennials” who majorly communicate through the use of social media. Additionally, e-mail, as well as static websites have generally been out-dated, something that gives room for social media.

Why courts should use social media

The internet, as well as social media has generally opened up newer domains where both the civil, as well as criminal law function. Globally, there have been technological, as well as communications revolution and all courts generally make use of technology. With the increase in the levels of use and dependence on various technological tools, the courts also need to adopt the internet, as well as social media. For instance, in the year 2011 information technology was highly welcomed as one of the major means of improving the administration of justice, enhancing access to justice, effectively managing various cases, and also for the assessment of various justice systems. It was also welcomed for its vital role in the provision of information to the lawyers, judges, and other stakeholders within the justice system, the public in general and the media[4].

The use of every element of information technology has been encouraged as it promotes the significant role that is played by the judiciary in guaranteeing the rule of the law in various democratic states. Currently, there are numerous major technological trends that every court has to respond to and they include cloud computing, mobile computing, electronic records management systems, as well as social media.

Cultural clash between social media and the courts

There are generally “three features of the new media which sharply contrast with the judiciary’s basic characteristics. There are a number of ways in which the two are conflicting and they include the fact that the new media is multidirectional and decentralized; intimate/personal while the judiciary is unidirectional or institutional, independent/ separate and textual.

How social media is significant in attaining court goals of accessibility, transparency, efficiency and accountability

Generally, there has been a decline in the use of traditional media. The traditional media were generally coherent, dedicated, as well as professional in covering the proceedings of the court, as well as justice sector issues[5]. There has been the rapid rise among the citizen “reporters” as well as pundits (through tweets and blogs from courthouse) who might not obey standards like that. It is highly significant for the courts to proactively use the newer technological tools in order to ensure that the public is effectively informed concerning the justice system. It is worth pointing out that the present climate within the media is very different from the one that was there in the past years. In addition, social media provides numerous practical opportunities that are capable of ensuring that there is effective communication within the courts.

The courts have to invent highly constructive strategies for engaging the newer technologies. Open justice within the technological age implies to the capacity of the community to not only view but also to access various kinds of information concerning the proceedings of the court via social media and the Internet and also via the traditional print, as well as electronic mediums. Due to the fact that the new media is highly interactive, the public can easily access besides contributing to various public debates, something that the traditional media can not.

Open justice entails the adoption of newer media technologies by the judiciary and also engaging themselves in direct dialogues with the society or the community. The judiciary have to ensure that they meet the expectations while at the same instance preserving the fundamental elements of rule of law which include judicial impartiality and fairness[6].

There are a number of reasons why courts should use social media. For instance, social media can be used in community outreach, as well as in the enhancement of the interaction of various individuals. Besides, social media can be used by the public in order to gain access to various services that are provided by the courts. The courts can also use it in order to solicit for input, a good example being when they are doing a survey. Information concerning various special events can also be distributed via social media and at the same time, social media may be used in order to provide public information concerning the courts like their areas of locations, the hours of operation, among others.

Concerns and problems of using social media in the courts

There are various issues concerning social media use by the courts, and they mainly include the misuse of the media by the juror, something that can result into aborted trials; enhanced risk of cyber stalking or increased chances for privacy invasion; disclosure of various kinds of information to the witnesses or for other individuals waiting inside or outside the court; difficulty in testing the credibility and the authenticity of social media journalism; and the need to train the court judges, staff, the public, as well as the media concerning the use of social media. Besides, difficulty in determining the ownership of the sources of information on the social media is also a major issue.  Additionally, social media has presented bigger challenges for various court processes, for instance, in criminal law; serious questions always arise as to the impacts of social media on the ability of the courts to ensure that there is a very fair trial of the accused individuals through juror misconduct and pre-trial publicity. At the same time, the same technology has generally facilitated the efficient and effective conduct of the court processes that includes the hearing of the bail applications through video link.

Whereas the use of social media offers a unique chance for the promotion of open justice principle, there is generally the concomitant risk that social media use by the courts and the judicial officers will generally undermine administration of justice, as well as the perception of the public. There are several instances in jurisdictions globally in which the judge’s extrajudicial conduct through the use of internet and social media has resulted into the disrepute of the administration of justice.

Effective strategies for the implementation of Social Media

When a court makes the decision to use social media, in a number of cases, there are generally numerous things that they ought to consider in order to make sure that there is highly effective social media present and some of them include having a disclaimer, as well as terms of service statement on every social media platform.  There is the need for them to choose the correct tool for the job, and besides, they ought to lay much emphasis on the target audience. They also should to consider various issues to do with data privacy and again, the use of plain language is also encouraged. At the same time the platforms that are used ought to be in compliance with various legal requirements and there is also the need for the definition and implementation of organisational responsibility, as well as editorial control.

Discussion

The uses of social media are generally innovative and as noted, numerous courts have successfully implemented social media in order for them to gain the various benefits that are generated by it. There are a number of ways through which the courts might expand the application of social media. For instance, governments often struggle with the collection of funds which are past due. The courts might have some huge amounts of fees that are not paid, restitution, fines, as well as other court-ordered obligations that they are supposed to collect. Social media ought to be used by them for the enhancement of communications through the use of micro-blogging, sharing collections, as well as compliance information with the other courts, monitoring, as well as contributing to wikis and blogs with highly relevant discussion threads.

Conclusion

Generally, the effects of social media, as well as internet technology have generally had huge effects on justice administration. The official twitter and Facebook accounts of various courts have numerous followers. This essay has offered a highly comprehensive overview of social media, why social media are significant within the society, as well as to the courts; various ways of using social media effectively; the social media platforms which are well-suited for the courts; the various problems that are capable of arising from the use of social media in the courts, and how the courts are capable of proactively dealing with the problems. As the paper has explored, during the early years of application of social media within the courts, there were generally lots of scepticism, however, through the gaining of experience, a huge chunk of the problems have generally been solved and at the same time, they have been found to be less severe.  The numerous advantages that are brought about by the use of social media have also been explored and it has been established that various judges have been in support of the use of social media in the courts.

 

 

 

Reference List:

Bridget, H., Lucinda, J and Lydia, P 2014, Courting justice beyond the cityscape: Access to justice and the rural, regional and remote magistrates’ courts, Journal of judicial administration, volume 23, number 3

 

Emma, W and Kieran, T 2014, “Taking Facebook at face value: The Refugee Review Tribunal’s use of social media evidence” 21 AJ Admin L 172

 

Hanlon, F 2014, Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia, Journal of judicial administration, volume 23, number 3

 

Isaac, FB 2014, “In defence of “take-down” orders: Analysing the alleged futility of the court-ordered removal of archived online prejudicial publicity” 23 JJA 203

 

Krawitz, M 2014, Summoned by social media: Why Australian courts should have social media accounts, Journal of judicial administration, volume 23, number 3

 

Lorana, B and Jessica, L 2013, “Jurors using social media in our courts: Challenges and responses” 23 JJA 35

 

Marilyn, K 2013, “May it tweet the court: Ethical considerations involving Australian lawyers’ social media use” 2 J Civ LP 85

 

Marilyn, K 2013, “Can Australian judges keep their “friends” close and their ethical obligations closer? An analysis of the issues regarding Australian judges’ use of social media” 23 JJA 14

 

Tom, K 2013, “Social media, recruitment and dismissal: Challenges and implications” 4 WR 153

[1] See Hanlon, F 2014, Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia, Journal of judicial administration, volume 23, number 3

 

[2] Bridget, H., Lucinda, J and Lydia, P 2014, Courting justice beyond the cityscape: Access to justice and the rural, regional and remote magistrates’ courts, Journal of judicial administration, volume 23, number 3

 

[3] See Krawitz, M 2014, Summoned by social media: Why Australian courts should have social media accounts, Journal of judicial administration, volume 23, number 3

 

[4] See Emma, W and Kieran, T 2014, “Taking Facebook at face value: The Refugee Review Tribunal’s use of social media evidence” 21 AJ Admin L 172

 

[5] See Isaac, FB 2014, “In defence of “take-down” orders: Analysing the alleged futility of the court-ordered removal of archived online prejudicial publicity” 23 JJA 203

[6] Marilyn, K 2013, “May it tweet the court: Ethical considerations involving Australian lawyers’ social media use” 2 J Civ LP 85

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