Restless Natives and archaic law: the social media crisis facing the world’s legal systems

Why are criminal trials in jurisdictions across the world still susceptible to miscarriages of justice by failing to adapt to the unique risks presented by social media use? The Drum takes a look at how different legal systems, mired in 19th century practice, tackle a 21st century dilemma.

The social media world moves at a far faster pace than the institutions of commerce and society that facilitate it, and in particular, the legal frameworks that govern it. Across the world, technology is presenting new opportunities and solutions at a rate that commercial, conventional and cultural practice cannot absorb. Google Glass is a prime example of a technological development that presents moral, ethical and legal issues in addition to the social and cultural queries concerning the propriety of its use. The global furore over the absence of criminal accountability for those threatening to rape women via Twitter illustrates how much of our lives take place in the lawless online world, and jurisdictions the world over - not just in the UK - are struggling to adapt their criminal and civil codes to keep pace.Perhaps one of the simplest areas to refine to adapt to the social media world, trial proceedings, is surprisingly among those areas still bound in 19th century practice. A criminal trial is a controlled environment, with jurors contained and capable of monitoring. Yet even here, where the real world consequences of careless social media use can create miscarriages of justice, its use is largely unrestricted. Across the world jurors are still regularly risking the administration of justice by their unpoliced use of social media.Some jurisdictions are moving faster than others to deal with this. The inertia stems in part from the entrenched habits of the 20th century, when control of publishing rested in the hands of a select group of trained editors, who all understood the risk to a criminal trial if sensitive information about it was reported. Access to archived newspapers to see old news required a day’s effort at a reference library. In a short timeframe that dynamic has been reversed, and publishing access to the world is in the hands of everyone with a smartphone, together with libraries of global newspapers. Yet in Scotland for example, where The Drum is headquartered, the law from 1981 still guides the law in the vastly changed digital world of 2013.The Attorney General in England, Dominic Grieve, said “Trial by Google” was a risk to the entire system of jury trials, considered a fundamental principle of developed democratic countries.“What does the internet mean for our system of trial by jury? Is the trial process equipped, or even able, to regulate the information that jurors receive?” he asked.“How can we be sure that jurors decide their cases on the basis of the evidence they hear – and not what they looked up on their smart phones on the bus on the way to court?"The internet is a haystack of material, scattered with the odd prejudicial needle, as it were. Trial by Google allows a juror to locate the haystack, find the needle, pull it out and ascribe significance to it that it simply would never have had otherwise. It takes a minor risk and turns it into a major risk."He went so far as to say the problems of internet use offended the principle of open justice.Other parts of the world are addressing the practical problems at a faster pace. In the state of Victoria, Australia, the Department of Justice commissioned a report: “Juries and Social media”, which made a series of recommendations in April this year.Among the recommendations, it suggested that juries should be given specific, detailed, written directions not to research cases at the outset of proceedings, which “should be written in plain language and include reference to specific types of commonly used social media”. It's common sense stuff, but not yet an approach that has occurred to capable and sophisticated jurisdictions elsewhere.In England, rather than inform jurors, the Law Commission has recommended the creation of a new criminal offence, and the confiscation of mobile phones from jurors, according to a consultation launched last year. It will be Spring 2014 before it reports with its proposals.In the United States of America, the American University Washington College of Law proposed the codification of the differing jury instructions issued to jurors across the 50 states . A review of these jury instructions in an earlier survey of all 50 states and federal courts’ social media jury instructions concluded that 21 states had “archaic” jury instructions that did not address social media or internet usage.The Washington College of Law study suggests: “Effective social media instructions should meet four criteria: (1) use plain language and social media terminology; (2) give specific examples of prohibited social media conduct; (3) explain the rationale for social media restrictions; and (4) describe the consequences of violating social media restrictions."The USA has historically been the fastest community to embrace the internet, yet remains among the slowest in addressing its consequences.In an article entitled “Wild and Crazy Jurors", Mark Hinuber, vice president and general counsel of the Las Vegas Review-Journal summed up what is the essence of the problem facing archaic legal codes in today’s online-centric world.“Increasingly courts are going to be called upon to deal with 'digital natives', those persons who have grown up with the Internet, including its freewheeling culture and nearly instantaneous access to information. And, like all natives, they are a restless lot,” he said.