The interface between social media and the law is one fraught with many grey areas, so unsurprisingly, it is a growing area of legal scholarship. From the regulatory and ethical considerations of jurors and judges using social media, to the rights and responsibilities of employers and employees, to an increasingly blurred public/private divide, social media has deeply affected the way we think about – and use – the law.
In celebration of the fifth annual global Social Media Day, we’ve collated an easy-reference resource list of some our recently published journal articles on this emerging but increasingly relevant field of study. Below, you will find abstracts for some of our content published in 2013 and 2014. Subscribers can click-through directly to full text on Westlaw AU. As always, non-subscribers are able to purchase individual articles: see here for more information.
- Marilyn Krawitz, “Summoned by social media: Why Australian courts should have social media accounts” (2014) 23 JJA 182
Millions of people and organisations benefit from using social media. Court staff can also benefit from using it. In particular, they can inform the public about recent judgments and about how courts function. At this point, few courts in Australia, Canada and the United Kingdom use social media. This article examines why. Ultimately, it argues that Australian court staff should consider using social media to increase confidence in the judiciary. Subscribers can read the full text here.
- Emma Wagstaff and Kieran Tranter, “Taking Facebook at face value: The Refugee Review Tribunal’s use of social media evidence” (2014) 21 AJ Admin L 172
This article argues that the Refugee Review Tribunal (RRT) is placing excessive weight on evidence gathered from social media in reviewing refugee decisions. It will be argued that the RRT is assigning high truth values to information concerning applicants and others from social media. This is despite detailed research that suggests that social media rarely conveys accurate or consistent information about an individual. In taking such evidence at face value the RRT is misunderstanding social media and potentially making errors in its decisions. Subscribers can read the full text here.
- Isaac Frawley Buckley, “In defence of “take-down” orders: Analysing the alleged futility of the court-ordered removal of archived online prejudicial publicity” (2014) 23 JJA 203
This article considers orders, known as “take-down” orders, that are made by courts directing media organisations to remove online news articles which, as a result of intervening circumstances between the time of their initial publication and a criminal trial, pose a real and substantial risk to the administration of justice in that trial. Critics of these orders have argued against the making of the orders on the basis that, as it is impossible for courts to “hold back the tide of publications” completely, it is futile to make any attempt at all to diminish the risk of juror contamination. This article seeks to dispel this criticism and endorses the view taken by trial judges that they ought to “do all they can” to ensure a fair trial in criminal proceedings. Subscribers can read the full text here.
- Terence W Wong, “Crowd funding: Regulating the new phenomenon” (2013) 31 CSLJ 89
The rise of social media has driven rapid growth in a new phenomenon known as crowd funding. Crowd funding sources venture capital from the internet rather than from an established capital market or financier, and has in a sense become a new “capital market”. It allows entrepreneurs to quickly, and at low cost, raise substantial amounts of capital from millions of internet users attracted to a great idea. This article suggests that crowd funding is incompatible with Australia’s current laws, and that specific regulations for crowd funding should be introduced in Australia so that it does not become confused with other investment and fundraising methods. This must be done to protect and nurture the vast untapped potential of crowd funding, to compete with the global crowd funding market, and ultimately to encourage new products and services to be created in Australia. Subscribers can read the full text here.
- Marilyn Krawitz, “May it tweet the court: Ethical considerations involving Australian lawyers’ social media use” (2013) 2 J Civ LP 85
Social media has changed the way that millions of people communicate, including lawyers. Lawyers’ use of social media poses some important ethical issues, such as unintended or faulty retainers on social media and how lawyers’ social media use can affect their duty to the court and their duty of confidentiality. Whilst some Australian law societies and similar organisations have released ethical guidelines for lawyers about this issue, others have not. This article argues that uniform, standalone national guidelines about lawyers’ social media use are necessary. Subscribers can read the full text here.
- Marilyn Krawitz, “Can Australian judges keep their “friends” close and their ethical obligations closer? An analysis of the issues regarding Australian judges’ use of social media” (2013) 23 JJA 14
Social media has changed the way millions of people communicate. It is possible that Australian judges may be using social media. Consequently, there are important ethical questions to consider. These questions include: should Australian judges be prevented from using social media, should they be permitted to add counsel who appear before them as friends on social media and, if so, is ex parte communication permissible. The article discusses the answers to these questions, while applying current judicial ethical resources in Australia and research published in this area in Canada, the United States and the United Kingdom. Given how little research in Australia there is about this topic to date, this article provides an important step toward encouraging meaningful debate. Subscribers can read the full text here.
- Lorana Bartels and Jessica Lee, “Jurors using social media in our courts: Challenges and responses” (2013) 23 JJA 35
This article considers the use of social media by jurors during the trial and deliberation processes. The article presents examples of such conduct from Australia, the United States and the United Kingdom. The article considers research on why jurors use social media, and discusses the likely prevalence of the issue. The article then discusses the risks this conduct presents to the defendant’s right to a fair trial and the administration of justice generally. Possible solutions are examined, including banning telecommunication devices, requiring jurors to take an oath and developing specific jury instructions. Research on the effectiveness of jury instructions is reviewed, and future directions for research, policy and practice noted. Subscribers can read the full text here.
- Isaac Frawley Buckley, “Pre-trial publicity, social media and the fair trial: Protecting impartiality in the Queensland criminal justice system” (2013) 33 Qld Lawyer 38
At the start of all criminal trials in Queensland, judges announce to prospective jurors that it is essential that they be, and be seen by all fair-minded people to be, completely impartial. Given the developments in media coverage of high profile crimes, investigations and trials can it still reasonably be expected that jurors are capable of this high standard of impartiality? And if we are no longer satisfied that they can be, do we simply lower our expectations of jurors or do we look for an alternative tribunal of fact? Against the backdrop of recent high profile matters in Queensland, with more on their way to trial in the years to come, it seems appropriate that the legal profession considers the potential flaws of the current jury system and contemplates whether there are more safeguards or restrictions that ought to be put in place to protect it. Subscribers can read the full text here.
- Tom Kavanagh, “Social media, recruitment and dismissal: Challenges and implications” (2013) 4 WR 153
The use of social media has blurred the lines between work and personal lives, posing challenges for employers, employees and the courts. Subscribers can read the full text here.
- Baron Alder, “Defamation: Social media risks for employers” (2013) 4 WR 52
Employers can be liable for defamatory statements made by employees on social media, even if they have taken no part in or were unaware of the action. Subscribers can read the full text here.
- Deanna Oberdan, “Is your brand protected from the dangers of social media?” (2013) 4 WR 98
Employers need to take measures that safeguard their business against potential loss and damage through social media. Subscribers can read the full text here.
Let us know what you think on Twitter @JournalsTalk, or below in the comments.