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 \u00e2\u20ac\u201c and use \u00e2\u20ac\u201c the law.<\/p>\n
In celebration of the fifth annual global Social Media Day<\/a>, 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<\/a>.<\/p>\n Millions of people and organisations benefit from using\u00c2\u00a0social\u00c2\u00a0media. 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\u00c2\u00a0social\u00c2\u00a0media. This article examines why. Ultimately, it argues that Australian court staff should consider using\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0to increase confidence in the judiciary. Subscribers can read the full text here<\/a>.<\/p>\n This article argues that the Refugee Review Tribunal (RRT) is placing excessive weight on evidence gathered from\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0in reviewing refugee decisions. It will be argued that the RRT is assigning high truth values to information concerning applicants and others from\u00c2\u00a0social\u00c2\u00a0media. This is despite detailed research that suggests that\u00c2\u00a0social\u00c2\u00a0media rarely conveys accurate or consistent information about an individual. In taking such evidence at face value the RRT is misunderstanding\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0and potentially making errors in its decisions.\u00c2\u00a0<\/strong>Subscribers can read the full text\u00c2\u00a0here<\/a>.<\/p>\n 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<\/a>.<\/p>\n The rise of\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0has 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<\/a>.<\/p>\n Social\u00c2\u00a0media\u00c2\u00a0has changed the way that millions of people communicate, including lawyers. Lawyers’ use of\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0poses some important ethical issues, such as unintended or faulty retainers on\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0and how lawyers’\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0use 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’\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0use are necessary.\u00c2\u00a0Subscribers can read the full text here<\/a>.<\/p>\n Social\u00c2\u00a0media\u00c2\u00a0has changed the way millions of people communicate. It is possible that Australian judges may be using\u00c2\u00a0social\u00c2\u00a0media. Consequently, there are important ethical questions to consider. These questions include: should Australian judges be prevented from using\u00c2\u00a0social\u00c2\u00a0media, should they be permitted to add counsel who appear before them as friends on\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0and, 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<\/a>.<\/p>\n This article considers the use of\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0by 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\u00c2\u00a0social\u00c2\u00a0media, 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<\/a>.<\/p>\n 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.\u00c2\u00a0Subscribers can read the full text here<\/a>.<\/p>\n The use of\u00c2\u00a0social\u00c2\u00a0media\u00c2\u00a0has blurred the lines between work and personal lives, posing challenges for employers, employees and the courts.\u00c2\u00a0Subscribers can read the full text here<\/a>.<\/p>\n Employers can be liable for defamatory statements made by employees on\u00c2\u00a0social\u00c2\u00a0media, even if they have taken no part in or were unaware of the action. Subscribers can read the full text here<\/a>.<\/p>\n Employers need to take measures that safeguard their business against potential loss and damage through\u00c2\u00a0social\u00c2\u00a0media. Subscribers can read the full text here<\/a>.<\/p>\n\n
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