The decision by a district judge to allow tweeting from the court in the Julian Assange extradition hearing raises interesting legal questions.
First, has the district judge, Howard Riddle, set a precedent which other courts will follow? Not exactly: it is a magistrates court, lowest in the pecking order of courts, so decisions do not bind other courts. However, his decision may be persuasive of other courts, especially other magistrates. The sky did not fall in as a result of yesterday's tweeting, so why not allow it again? For the decision to gain wider acceptance we really need a crown court judge or high court judge to follow suit.
The question is already getting attention at the highest level. In a Judicial Studies Board lecture in Belfast last month, the lord chief justice, Lord Judge, said:
"How is the principle of open justice compatible with preventing an ongoing, live and text-based dialogue to the outside world from a courtroom? If a reporter or member of the public is permitted to write notes to himself or herself in court, and then 'file them' from a telephone outside the court, what is the qualitative difference if they are permitted to do so when sitting in court, say, by sending a email? If it is possible to file a story via email from a laptop in court, then why is Twitter any different? On the other hand, tape recordings are prohibited by statute. Why is Twitter in the form of text-based transmission of material from court any different?"
The second issue is the challenge posed by the brevity of tweets. Court reporters have defences against charges of contempt of court and an action for libel so long as their reports are fair and accurate. Can they fairly sum up what might be complex legal points in 140 characters? The use of links, or Tweetlonger, might address this. But there is a danger of cherrypicking the juiciest moments when tweeting court and possibly producing a report which is not a fair account of proceedings.
It might also be solved by the use of liveblogs, such as the one published by the Guardian yesterday, which publish tweets and other material, thus giving adequate context.
The issue then is if reporters are to tweet from court, they need guidelines to work to, to make sure they retain their defences against libel and contempt.
Another question is whether a tweeting reporter can also be expected to produce a longer court report as well. This might prove too much of a challenge and, while national newspapers can afford to send multiple staff to hearings such as the Assange extradition, regionals that have already cut back court coverage drastically do not have such resources.
Journalists in court have no greater privileges than other members of the public and there is also the risk that the tweeting citizen journalist, unaware of court reporting laws, may include material which should be excluded.
The other danger to consider is that tweets will often be sent from a smartphone which has a very good camera. Will the temptation to tweet a picture of someone be too much? While the courts appear to be considering opening up to reporting via use of such technology, there has been no indication that that includes sending pictures or video.
Anything that opens up the courts to greater scrutiny and reporting has got to be a good thing. The challenge now is for those utilising such technology to make it work.
David Banks is co-author of McNae's Essential Law for Journalists and a media law consultant