The Battle of Bosworth Field was fought on 22 August 1485 and brought to an end the Plantagenet dynasty which had reigned over England from the days of Henry II. The debate about whether Richard III was as bad as Shakespeare painted him will continue. We have got to remember that Shakespeare was a child of his time. His queen was the grand-daughter of the victor of Bosworth – Henry VII – and it didn’t do to upset the ruler. The Tudors were very concerned with image – the subject of the late Kevin Sharpe’s excellent book Selling the Tudor Monarchy: Authority and Image in Sixteenth Century England[1]. The sources available to Shakespeare may have included Raphael Holinshed’s Chronicles of England, Scotland and Ireland,[2] Thomas More’s History of Richard III[3] and Polydore Vergil’s Historia Anglica[4]. Shakespeare’s Richard III was written in 1591 when all of these sources and possibly some others would have been available.
What is important is that all these works were in print and although Vergil’s book was printed in Basle, it is not inconceivable that copies found their way to England. The book was in Latin and would therefore have avoided the restrictions on importation of books printed overseas in English – a protectionist move for the benefit of English printers and latterly to prevent the importation of works which were anti-Elizabeth and designed to appeal to recusant Catholics.
Both Richard III and his successor Henry VII were aware of and fostered the development of the of a new information technology – the printing press.
The printing press had been introduced to England by William Caxton who learned the trade in Bruges. He set up the first press in Westminster during the reign of Edward IV.
Caxton Showing the First Specimen of His Printing to King Edward IV at the Almonry, Westminster (1851 Daniel Maclise (1811–1870)
The early history of print in England up until 1513 is characterised by two factors. The first is that within eight years of the introduction of the press there was legislation in place to enable the industry to develop. The second was an absence of native born English printers, with the exception of Caxton.[5] This was not unusual in the early history of the spread of the new technology. As the printing press spread through Germany, German craftsmen took it to other countries and in doing so passed on the skills of the craft to the natives of the new country, who in turn took the new craft with them to other countries.[6] John Lettou, of Lithuanian origin, established himself in the City in 1480 and in 1482 was joined in partnership by William de Machlinia, a native of Mechlin in Flanders.[7] Together, in 1481, they printed a well-known law book Tenores Novelli.[8] This was the first law book printed in England.
English authorities were often concerned at the impact that aliens had upon trade and commerce in England and often steps were taken to limit the foreign dominance of aspects of trade important to England. Foreigners were divided into two categories – aliens and denizens – and in any new regulatory activities dealing with foreign trade, it was against the aliens that the steps were initially taken. Denizens, who were foreigners who had been admitted to residence and who had certain rights,[9] could find themselves restricted in their activities.
So it was that in 1483 Parliament petitioned Richard III to address grievances against Italians[10] who, it was claimed were price fixing, buying up imported goods and re-selling them, sending their profits and bringing in other foreigners to work with them. As a result, the King’s subjects were unemployed and had turned to idleness with a consequent increase in the numbers of thieves and beggars. It was claimed that the inhabitants of “Citees Burghes and Townes in late daies have fallen and dailly falle unto grete poverty and dekay.”[11]
However, this statute, designed to severely regulate the conditions under which aliens could trade in England, contained a proviso which reads as follows:
“Provided alwey that this Acte or any part thereof, or any other Acte made or to be made in this present Parliament, in no wise extende or be prejudiciall any lette hurte or impediment to any Artificer or merchant straungier of what Nacion or Contrey he be or shalbe of, for bryngyng into this Realme, or sellyng by retaill or otherwise, of any man’s bokes written or imprinted, or for inhabitynge within the said Realme for the same intent or to any writer lympner bynder or imprinter of suche bokes as he hath or shall have to sell by wey of merchaundise, or for their abode in the same Reame for the exercising of the said occupacions; this Acte or any parte therof notwithstanding”[12]
This is a most significant proviso. It has been suggested that its inclusion was at the behest of John Russell, a bibliophile and member of the King’s Council, possibly influenced by the marketing activities of Peter Actors who was an importer of books and who had been a supplier of books to the principal fairs with his partner Joannes de Aquisgrano.[13]
The importance of the proviso may be summarized as follows. First, it indicated quite clearly that a value was placed upon books and that there was recognition of the importance of the newly introduced craft of printing which was relatively poorly developed in England. Secondly, it ensured that the continued and future presence of foreign craftsmen who were skilled in the new technology would be encouraged to come to England and continue to develop the trade. Thirdly, although this was a most important encouragement for printing, the proviso also extends to writers, limners and binders – those involved in the scribal production of books. Thus the encouragement was for book production generally, and it is probable that the Stationers’ Company, which represented native craftsmen and shopkeepers, must have approved of this specific exclusion.[14]
The 1484 Statute demonstrates what was to become a trend – the use of statute to regulate the printing trade directed primarily towards industry regulation rather than content regulation.[15]
A recognition of the developing importance of print in government came in 1485 when, on 5 December, Peter Actors, an early beneficiary of the proviso, was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with
“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc thereon and without rendering any accompt thereof.”[16]
Henry VII utilized print for propaganda purposes and was the first English monarch to do so,[17] but he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.[18] It was one of the first publications to recognize the wide dissemination that the new technology allowed, and the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications.[19] It also made very clear that ignorance of the law could not be claimed when material was available in print.[20] The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated the technology of print.
“and to thentent they have no cause to excuse theim of their offences by pretense of ignorance of the saide ordenances, his highnesse hath ovir and above the open proclamacion of the saide statutes communded and ordeyned by wey of emprynte diverse and many several bokes conteignyng the same statutes nto be made and delivered to the capitaignes of his ost charginge them as they wyl avoyde his grete displeasure to cause the same twyes or ones at the lest in every weke hooly to be redde in the presence of their retinue.”[21]
Up until the 1520’s there was a relatively unregulated market for printers and for printed books. The craft grew by leaps and bounds. The five printers in London had grown to thirty-three printers and booksellers by 1523 and the English market was becoming less dependent upon imported material.[22] John Rastell, a lawyer-printer began printing in 1513 and was joined thereafter by a growing number of English printers.
The importance of printing and its status continued to be recognized by the Crown and the office of King’s Printer which was not an honorary one, became a tool of Government. The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”[23]
The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.
The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicized, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognized. Large numbers of identical publications could be readily spread throughout the Kingdom. On the other hand it was recognized that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.
For approximately thirty years the printing trade developed in England with little restriction, but it was with the advent of Luther’s teachings on the Continent, coupled with economic concerns that were developing about the condition of the English labour market that restrictions on the trade and business of printing and the control of the content of works being printed attracted the attention of the State and the intervention of the law.
Bosworth Field may have resulted in a changed dynasty but both monarchs contesting the Crown recognised the importance of the new information technology. It was to grow and become a potent force, especially in the hands of Henry VIII and Thomas Cromwell – but that is another story and for another day
[2] At London printed by Henry Denham in Aldersgate street at the signe of the Starre, 1587. The first volume was printed in 1577 and took the history until the Conquest. The printing of the first and second volumes took the history through to 1586
[3] Printed posthumously in 1557 in The Workes of Sir Thomas More Knyght sometyme Lorde Chancellour of England wrytten by hime in the Englysh tonge (At the costes and charges of Iohn Cawod, Iohn Waly, and Richarde Tottell, Anno. 1557) and edited inter alia by his nephew William Rastell – see pages 35 et seq of the 1557 edition although there is some suggestion that More’s patron John Morton Archbishop of Canterbury was the source for much of More’s information
[4] Although that work was printed in Basle in three editions – 1534, 1546 and 1555 and not in England
[5] Bennett H.S. English Books and Readers 1475-1557 : Being a study in the history of the book trade from Caxton to the Incorporation of the Stationers Company (Cambridge University Press, Cambridge, 1952) – [referred to hereafter as 1 Bennett] p. 30.
[6] John Feather, A History of British Publishing (Croom Helm, London, 1988) p. 14. Richard Pynson and William Faques were Normans and John Notary was probably French.
[7] Colin Clair A History of Printing in Britain (Cassell, London, 1965) p. 32.
[8] Littleton’s Tenures. J.H Beale A Bibliography of Early English Law Books (Harvard University Press, Cambridge Mass, 1926) p. 182 The 1481 printing does not appear in the Short Title Catalogue but records Machlinia’s printing of the Tenures in 1483 STC 15720.
[13] Clair above n. 7 p. 104; C. Paul Christianson “The Rise of London’s Book-Trade” in L. Hellinga and J.B.Trapp (eds) The Cambridge History of the Book in Britain – Volume III – 1400 – 1557 , (Cambridge University Press, Cambridge, 1999) p. 137. Actors was appointed Stationer to the King in 1485. See below.
[14] Cyprian Blagden The Stationers’ Company – A History 1403 – 1956 (Allen & Unwin, London, 1960), p. 24.
[15] Certainly there were later statutes which prohibited the use of writing or printing as a means of expressing or as a constituent of heresy or treason, e.g. the Treasons Act 1534. The objective of such legislation was directed more toward content.
[16] Clair, above n. 7, p. 105; Christianson above n.13 p. 137. Actors was appointed Stationer to the King in 1485. E. Gordon Duff A Century of the English Book Trade ( The Bibliographical Society, London, 1948) p.xii-xiii. Kevin Sharpe in Selling the Tudor Monarchy above n. 1 p.65-6 notes a suggestion that Henry VII was slow to grasp the full potential of printing observing that Faques was not appointed the first Royal Printer until 1506. While the approach based on the title is correct, there can be no doubt that Faques fulfilled the same role under different nomenclature. Perhaps Henry was more alive to print potential than may be immediately apparent. Faques was followed in that position by Richard Pynson in 1508, Thomas Berthelet (1530), Richard Grafton (1547), John Cawood (1553) and Cawood with Richard Jugge (1558). 1 Bennett p.38.
[19] Pamela Neville Sington “Press, Politics and Religion” in L. Hellinga and J.B. Trapp (eds) Cambridge History of the Book in Britain – Volume III – 1400 – 1557 (Cambridge University Press, Cambridge 1999) Volume 3p. 578.
[20] The issue of ignorance of the law as a concept in the early modern period is rather complex and beyond the scope of this piece.
Should Judges involve themselves with social media, maintain or contribute to blogs, have Twitter accounts or otherwise utilise the numerous communication platforms offered on the Internet? This post will consider some of the issues surrounding judicial engagement with social media and particularly judicial blogging
In a Twitter exchange @cearta posed the question “should judges be warned off blogging”, referring to Lucy Reed’s post on her Pink Tape blog which was more widely published in the Guardian, reporting that guidance has been issued to all judicial office holders warning them off blogging. (For the full text see the end of this post) The answer “no” came back from @MauriceDockrell and @cearta asked “why?” @John_gilhooley joined the debate asking “why confine an understanding and interpretation of the law solely to written judgements? We don’t ban …judges from addressing law societies in(sic) universities, why ban the written and not the oral.” @MauriceDockrell replied “Because in front of law societies etc judges can speak ex tempore whereas in writing can be held to account…look at the difficulty Carney J got into a few years ago – blogs etc would cause controversy.”
I must confess that I am unfamiliar with Carney J’s difficulties but the exchange made some interesting points about judges and “out of court” discussions in a public forum – because blogs, tweets and other social media platforms are certainly public.
The Issues
The debate has arisen as a result of the guidance that has been issued to the English judiciary, a few of whom maintain blogs. The story broke in a blog run by an English Magistrate. It spread quickly through the English blawgosphere – see for example Legal Cheek and Obiter J. An important paragraph of the guidance reads as follows:
“Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.”
Adam Wagner at the UK Human Rights Blog can be relied upon for a thoughtful analysis although it is not hard to anticipate where he might stand on the issue.
“The main problem here is the starting point. It appears that someone has identified a problem, being the potential (but until now, only theoretical) that judicial blogging may undermine public confidence in the judiciary.”
I think Adam is correct in using the word “potential” because I am unaware of any research suggesting that there is such a problem and that it will lead to the undermining of public confidence in the judiciary. But by the same token it cannot be said that there is an absence of risk that social media engagement by a Judge could go horribly wrong. Some examples from the US appear below. A hasty or badly expressed tweet could have regrettable consequences. At least a blog may be subjected to a more deliberative process with opportunities to review and edit – or to decide not to publish a post at all. But certainly, given the quality of information persistence that characterises the Internet, the position should be that once published the contents of a tweet, a Facebook comment or blog post cannot be withdrawn.
But risks aside, why shouldn’t Judges blog about aspects of their jobs, professional issues and the like as long as nothing is said that might compromise the appearance of neutrality in a case. Should a Judge be prohibited from blogging about topics associated with the judicial role such as the history of the judicial robes (an aspect of the job unrelated to any suggestion of partiality on a case) or topics unrelated to the law such as the habits of the local sparrows (a different form of twittering), the Albigensian Crusade, the Hundred Years War or the deeper mythological themes underlying Tolkien’s Middle-earth writings? And what possible objection could there be to the Judge who blogs or writes on such subjects being identified as such. One might extend the topics into the professional sphere. There are many uncontentious areas where a Judge may inform public understanding of the judicial role and that of the Court. As Obiter J puts it
“For my part, I fail to see why the maintenance by any Judge or Magistrate of a responsible blog should adversely affect public confidence in the judiciary. There is of course the potential for it to do so but that depends on what is published and it is probably wise for the blog owner to retain control over comments placed on the blog by others.”
(The emphasis is mine)
The educational aspects of judicial blogging are emphasised by Adam Wagner:
“But why not start from a different position, that judicial blogging could be a force for good, a way to bring the public closer to the law? This seems to be the starting point in the United States, where the President of the National Judicial College has said this:
“As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice”
Adam closes with the suggestion by Lord Neuberger,the newly appointed President of the UK Supreme Court that the Judiciary should:
“foster the already developing community of active informed court reporting on the internet through blogs, and tweeting; we should support the responsible legal journalists; we should initiate, support, encourage and assist public legal education. The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.”
It cannot be said, however, that the statement is an endorsement of judicial blogging. But it does clearly call for a better informed debate about the role and activities of the Courts.
Other Jurisdictions
So what is happening elsewhere in the common law world? What guidelines are available that may assist in determining the approach that may be adopted? Certainly most jurisdictions have a set of guidelines for judicial behaviour.
Australia and New Zealand
Australian and New Zealand judicial guidelines recognise the role of the Judge in an open society, and the shift in perception from the earlier position that judges should undergo civic and social isolation upon appointment to one of more open participation and engagement. But the guidelines also emphasise the need for care and restraint in public comment.
Australia
The Australian Institute of Judicial Administration has published The Guide to Judicial Conduct (2nd ed. 2007). There are no specific provisions about engagement with social media but there is a section about activities outside the Courtroom. The section dealing with Public comment by Judges (5.6) and Participation in Public Debate makes useful reading.
Guideline 5.6.1 states:
5.6.1 Participation in public debate
Many aspects of the administration of justice and of the functioning of the judiciary are the subject of public consideration and debate in the media, at public meetings and at meetings of a wide range of interest groups.
Appropriate judicial contribution to this consideration and debate is desirable. It may contribute to the public’s understanding of the administration of justice and to public confidence in the judiciary. At the least, it may help to dispose of misunderstandings, and to correct false impressions.
Considerable care should be exercised to avoid using the authority and status of the judicial office for purposes for which they were not conferred. Points to bear in mind when considering whether it is appropriate to contribute to public debate on any matter include the following:
A judge must avoid involvement in political controversy, unless the controversy itself directly affects the operation of the courts, the independence of the judiciary or aspects of the administration of justice;
The place at which, or the occasion on which, a judge speaks may cause the public to associate the judge with a particular organisation, group or cause;
There is a risk that the judge may express views, or be led in the course of discussion to express views, that will give rise to issues of bias or prejudgment in cases that later come before the judge even in areas apparently unconnected with the original debate; A distinction might be drawn between opinions and comments on matters of law or legal principle, and the expression of opinions or attitudes about issues or persons or causes that might come before the judge;
Expressions of views on private occasions must also be considered carefully as they may lead to the perception of bias;
Other judges may hold conflicting views, and may wish to respond accordingly, possibly giving rise to a public conflict between judges which may bring the judiciary into disrepute or could diminish the authority of a court;
A judge, subject to the restraints that come with judicial office, has the same rights as other citizens to participate in public debate;
A judge who joins in community debate cannot expect the respect that the judge would receive in court, and cannot expect to join and to leave the debate on the judge’s terms.”
The Guidelines prohibit, as might be expected, entering into debate about a decision, even to clarify ambiguity. The decision must speak for itself.
However, Guideline 5.7 deals with contributions to newspapers and periodicals and appearing on the media. These Rules could apply, mutatis mutandis to social media engagement.
Guideline 5.7 reads:
5.7 Writing for newspapers or periodicals; appearing on television or radio
There is no objection to judges writing for legal publications and identifying themselves by their title.
There is no objection to articles in newspapers or non-legal periodicals and other contributions intended to inform the public about the law and about the administration of justice generally but before agreeing to write such an article, it is desirable that the judge should consult with the head of the jurisdiction.
Judges are occasionally asked to take part in radio talk-back or television programs on matters of public interest. Such activities, if they are to take place, are best carried out by or after consultation with the head of the jurisdiction, and should usually be restricted to matters affecting the administration of justice. The matters raised in par 5.6.1 will usually require consideration.
There seems to be no objection in principle to a judge writing in a private capacity on a non-legal subject.”
Thus it seems that there is no objection to involvement in discussion about the law and the administration of justice or in writing about legal topics as long as care is exercised.
New Zealand
The New Zealand Guidelines for Judicial Conduct (June 2011) contain rules on participation in public debate which are not as detailed as those in Australia and read as follows:
“If a matter of public controversy calls for a response from the judiciary or a particular court, it should come from the Chief Justice or head of jurisdiction or with his or her approval. In other cases it may be beneficial to public debate for judges to provide information relating to the administration of justice and the functions of the judiciary. Such participation is desirable but requires care. In particular a judge should avoid political controversy unless the controversy is about judicial function. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by particular organisations or causes. It is important to avoid expressing opinions on matters which may arise in litigation and which may lead to concern about the impartiality of the judge.”
Paragraphs 33 and 34 of the New Zealand Guidelines state:
“The days are past when appointment to the judiciary compelled social and civic isolation. Effective judges are not isolated from the communities they serve. Communities are not well served by judges whose personal development is arrested by judicial appointment. Judges are also entitled to private and civic lives which are not stunted or disadvantaged by office.
On the other hand, a judge’s conduct, both in and out of court, inevitably attracts closer public scrutiny than that of other members of the community. And the standing of the judiciary is adversely affected by conduct which, in someone else, would not excite serious criticism. Judges therefore have to accept some restrictions on conduct and activities as a consequence of appointment. Where the balance should be struck is a matter of reasonable difference of opinion.”
The rules relating to writing and media comment are similar to those in Australia and are covered in paragraphs 58 and 59 of the New Zealand Guidelines which read as follows:
“Articles or interviews which inform the public about the administration of justice generally are not objectionable and indeed may well be beneficial in raising public understanding about judicial function. They carry risks however if the Judge expresses views which may be taken to pre-determine issues which may arise for judicial determination or which cross into areas of political controversy. Publication in legal journals is not objectionable but requires care to avoid expressing firm views on matters which may come before the court for determination.
Participation in radio or television programmes should generally be discussed with the head of jurisdiction before an invitation is accepted.”
One of the presentations was by Judge Kevin Burke of Minnesota who blogs for the American Judges Association. His blog started in September 2011 and its purpose may be found here. Nearly 12 months down the track and Judge Burke is still going strong, his latest post being on August 15 2012.
Judge Burke, together with Judge Steve Leben, David Rottman and Tom Tyler are contributors to the Procedural Fairness Blog. The blog is part of a wider project details of which appear on the Procedural Fairness website. The aim of the project is stated as follows:
“We focus on helping judges and courts implement policies and practices that promote procedural fairness in courtrooms and courthouses. In addition, we look at policing, currently the focus of the majority of criminal justice research on procedural fairness, but we retain an emphasis on the courts.
We also seek to bridge the gap between academic research and actual practice. This site is a collaborative effort by judges, researchers, and university professors who share a belief that an emphasis on procedural fairness can make judges and court managers more effective decision makers, improve compliance with court orders, and increase public satisfaction with the court system. Yet we also share a desire to engage with one another—as well as a broader community—to test our ideas. So we provide a forum linking judges and court managers to the academic and research community engaged in the study of procedural fairness.
The Procedural Fairness Blog will offer a forum to discuss current issues and events through posts by founding participants, other staff from the National Center for State Courts, and periodic guest bloggers drawn from the judiciary, court management, and the academy.”
Justice Judith Lanzinger of the Supreme Court of Ohio maintains a blog entitled Justice Judy. She makes her position very clear in what may be called a “mission statement” stating the scope and purpose of her blog.
“As a former teacher and a judge, I take very seriously my obligation to fulfill the mandate in the Ohio Code of Judicial Conduct, which requires that “A judge should initiate and participate in activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this code” 1.2 (Comment 6).
This blog is a carefully balanced medium for me to fulfill this obligation using the latest information technology. Studies show that today’s young people are the most plugged in generation ever. Blogging offers an opportunity to connect with these young people where they now spend most of their time: Online.
On pages of the Justice Judy blog you will find simple, straightforward explanations of judicial concepts and processes, as well as discussions about current developments in the legal profession and the law.
You will not find political commentary, interpretations of judicial decisions, or anything else that would carry even the remote possibility of violating the other judicial canons, which are in place to ensure that we have an independent, fair and impartial court system.
By allowing comments to be posted, I am able to interact with the public I serve to further the cause of an understandable and accessible judiciary. By moderating the comments, I ensure that the discussion is appropriate and thoughtful. I hope you will become a regular reader and tell me what you think.
– Justice Judy”
However, the downside of social media use by the judiciary may be seen in these examples from a post about Judicial Use of Social Media:
“A Georgia judge recently resigned after that State’s Judicial Qualifications Commission investigated the judge’s Facebook messaging with a defendant appearing in a pending matter before him.
Late last year, a New York judge was reassigned after allegations surfaced that he was updating his Facebook status from the bench and that he once took a picture of his crowded courtroom, posting it on his active, public, Facebook page.
In late 2009, Florida authorities issued a judicial ethics advisory opinion concluding judges cannot “friend” lawyers on social network websites like Facebook or MySpace. But South Carolina’s judicial ethics advisory committee concluded a judge could “friend” law enforcement officers and court employees if they were not discussing anything related to the judge’s position.
The North Carolina Judicial Standards Commission concluded in 2009 that a judge should not utilize a listserv to obtain advice on a legal topic that was applicable to a proceeding before that judge.”
In an article (or possibly a blog post) published on the National Association of State Judicial Educators website Justice Daniel J Crothers makes the following observations about the American approach:
“Can judges and court personnel make blog postings or participate in listservs?
The general answer to each of these questions is “yes,” but….
A judge’s actions are constrained by the American Bar Association Model Code of Judicial Conduct, derivations of which are in place in most United States jurisdictions. The Code requires, in some instances pertinent to use of social media, that the judge exercise reasonable direction and control over attorneys and staff who report to the judge.
The Code generally allows judges to engage in extra-judicial activities that do not demean the judicial office, that do not cast reasonable doubt on the judge’s impartiality and that do not interfere with the performance of judicial duties. Therefore, judges and court staff, like most other people, can use the internet for lawful purposes, including maintaining and using social networking tools and sites like Twitter, Facebook and MySpace as long as those uses stay clear of courts, court business and matters that frequently appear in the courts.
But the Florida Committee noted, “While judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities, some restrictions upon a judge’s conduct are inherent in the office.”
For example, judges have an obligation under the Code not to lend the prestige of judicial office to advance the private interest of the judge or others, nor to convey or to permit others to convey the impression they are in a special position to influence the judge. On this basis a majority of the Florida Ethics Advisory Committee concluded that a judge would act unethically by “friending” a lawyer on a Facebook page. Florida’s conclusion was based on the Facebook feature that mutual “friends” appear on each other’s page, even with the highest privacy settings invoked. At a minimum, these mutual “friends” are visible to other “friends” of the respective subscriber. Absent use of the highest privacy settings, the judge-lawyer “friend” status is viewable by all internet users.
So too are judges and staff prohibited from participating in improper ex parte communications in a pending or impending matter. This was one of the reasons for the disciplinary investigation of the Georgia judge.”
Justice Crothers concludes with the sage observation:
Until the law in your state is clarified or until you request a judicial ethics advisory opinion (if you are able), all judges and court staff using social media websites would do well to remember the advice given in the 1980s television show Hill Street Blues by dispatch Sergeant Phil Esterhaus:“Hey, let’s be careful out there…”
The Social Media Today Blog contains some examples of State rules about judicial engagement with social media:
“On June 12, 2012, the Maryland Judicial Ethics Committee published an opinion providing guidance regarding the judiciary’s use of social media. The main point of the decision is that, “a judge must recognize the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct, and, therefore, proceed cautiously.”
The Florida Supreme Court’s Judicial Ethics Advisory Committee’s opinion that prohibited judges from adding lawyers who may appear before them as “Facebook Friends” demonstrated a lack of understanding of social media. If judges can be friends in the real world and join the same social clubs as lawyers who appear before them they should be able to be Facebook Friends. California, New York, Kentucky, Ohio and South Carolina have taken a different position than Florida and their rules appear to generally demonstrate a better understanding of how online relationships are analogous to real world relationships.
The Maryland Judicial Ethics Committee appears to have taken a position that generally follows California, New York, Kentucky, Ohio, and South Carolina. The Maryland Judicial Ethics Committee stated “the mere fact of a social connection does not create a conflict” while referring to online social media connections. The bottom line is that Maryland once again has demonstrated an understanding of how social media intersects with the law.”
A very helpful keynote address by Judge Herbert B Dixon at the ABA Conference in Toronto in 2011 reported by Connie Crosby highlights some of the difficulties and suggests some solutions for lawyers, jurors and judges. (There is also available the wonderful Social Media Revolution video based on Eric Qualmann’s Socialnomics with the inspiring soundtrack “Baba Yetu” composed by Christopher Tin (it is in fact the “Lords Prayer” in Swahili) that Judge Dixon used in his presentation and yes, I have used the same clip myself.)
The CCPIO New Media Survey for 2012 found as part of its survey that most judges agreed that using social media sites in both their personal and professional lives doesn’t necessarily compromise the professional code of conduct. Justice Lanzinger blogs “While students are more than comfortable with social media sites, a new national survey says more judges and courts are using Facebook and Twitter now too.”
A Nature of the Blogosphere
So what does all this tell us? The first thing is, as the New Zealand Guidelines point out, that Judges are a part of society and not aloof from it. Judges are an essential part of a functioning society under the Rule of Law. That said, Judges must keep up with changing trends and developments in society and recognise them.
Herein lies the problem. I have argued elsewhere that new technologies bring about behavioural changes that may influence shifts in values. But new technologies will not change such fundamental values as the importance of a fair trial, the need for an impartial tribunal or adjudicator and the right to be heard in a cause. These are essential properties of our shared justice system. Furthermore, it is well recognised that the Courts, of the three arms of Government, lack the power of the purse or the sword. Their legitimacy relies on public confidence. Actions by Judges that undermine that confidence, that give a suggestion of partiality, that may even unintentionally appear to give a taste that there is other than a fair system undermine public confidence. By the same token, public confidence may also be undermined by a lack of understanding of the judicial role or the law and how it works. The problem is finding the point of balance, and that is something that Judges do.
The various guidelines for behaviour suggest that there are occasions where judicial engagement outside the Court room may be welcomed but not at the expense of public confidence in the system or the erosion of trust in a judge’s performance of his or her role. That must be the primary guide for judicial engagement with social media and especially the judicial blogger.
A factor the must be taken into account is the nature of the “blogosphere.” Blogs and new media were examined by the New Zealand Law Commission in its report “The News Media Meets New Media”. The focus of the discussion was to consider whether there should be some form of regulatory framework for the blogosphere and when such framework, if any, should be engaged.
The observations of the Law Commission were informative. Irrespective of purpose, blogs are an aspect of a “new media” for information dissemination and bloggers may at times fall into the general category of “citizen journalists.”
In the chapter addressing on-line media the Commission considered blogs under the heading “The Blogoshpere – From Hard News to Gossip”. It observed
“Blogs vary greatly in terms of professionalism, readership and influence. At one end of the spectrum are hobbyists who write diary-like entries primarily for the consumption of colleagues, friends or family. At the other, are the bloggers with specialist subject knowledge in areas such as business, politics, law, the media, science and the arts. (Para 2.86)
New Zealand has an active blogging community straddling this spectrum. Among the specialist subject bloggers are respected and influential communities of legal and technology bloggers including, for example, barrister and media lawyer Steven Price (Media Law Journal), Victoria University lecturer Dean Knight (Laws 179 Elephants and the Law), Professor Andrew Geddis (Pundit), Mauricio Freitas’ technology blog, Geekzone, and Richard McManus’s seminal blog ReadWriteWeb, to name but a few. (Para 2.87)
Alongside the specialist subject bloggers there is a growing number of individual and collective blog sites whose primary focus could broadly be defined as “news and current affairs.” The blog site Tumeke! publishes rankings of many of New Zealand’s most well-known political and news blogs and since the survey began in 2007 the number of blogs included in the current affairs category has risen from 164 to 203 (Para 2.88)
In contrast with mainstream journalists in the past, bloggers frequently develop strong communities of followers with whom they actively engage. The quality of blog postings on sites like Pundit and Public Address is often matched by the calibre of the commentary they attract. A blogger’s influence is often measured not just by the number of unique viewers the blog site attracts but also by the number of participants and the number of external sites linking into it (Para 2.97)
The blog’s administrator (who is the author of the blog) sets the parameters for user engagement, deciding whether to moderate comments and where to set the boundaries around questions of tone, taste and decency. Standards and the levels of control vary widely: the internet culture’s aversion to censorship is often evident in the lack of moderation. This can sometimes see commentary descend into highly derogatory and abusive exchanges between different commentators. (Para 2.98)
At paras 2.100 – 2.110 the Law Commission examines other social media platforms.
Publication on the internet via a blog bears means “going public” and depending upon the nature of the post and its subject matter the blogger may move from an abstract discussion to commentary upon an issue of public interest or importance. In the blogosphere the line is blurred between mere information and becoming a commentator in the “new media” – akin to writing an op-ed piece for a newspaper. The only difference is that the circulation of the “newspaper” – and therefore the commentary – is worldwide.
There are other qualities surrounding Internet content that must be taken into account. (For an earlier discussion of Internet qualities see my post “Why Do Jurors Go Online” under the heading “The Internet, Information Technology and Drivers for Change”) I have already referred in this post to the persistence of information and that content on the internet is akin to the “document that does not die”. Other characteristics are those of searchability and retrievability of information – both associated with its persistence. Search engines enable the instant location of information and views expressed in the past may return as fresh as the day they were published – even although those views may have modified over the years. But debate or comment on current content may contain reference to a possibly “previous inconsistent statement”. Another aspect, to which reference has been made, is that blogs are often collaborative, and the Law Commission refers to the commentary that blogs attract. Most blog providers allow the administrator to vet and monitor comments and choose whether to post them or not, but then the debate becomes one of whether or not the administrator is indulging in unnecessary selectivity or even censorship. The blogosphere audience is in the main very wedded to concepts of free, open and vigorous speech as the Law Commission observes.
Given the nature of the Internet, this means that the judicial blogger is heading into an unfamiliar territory. Although judgments are public and are made available on-line, their publication and content are surrounded by a number of conventions, and the judge or judges are aware that the reasons for a decision will be scrutinised by academics, politicians, news media and the public. That all comes with the conventional judicial territory. By writing an opinion on a blog, the judge runs the risk of the same analysis and critique which will be accompanied by a recognition of the role that accompanies the writer rather than the expression of the view that may be contained on the content. The writer, in such a case, becomes more important than the message. Because the blog is authored by a judge, the potential problem for unfavourable comment, vigorous on-line debate or even discussion in the mainstream media becomes enhanced. These are factors that Judges must take into account if they contemplate venturing into the blogosphere.
Conclusion
Given the issues that have been discussed it may well be that the Senior Judiciary in England are suggesting that judges avoid engagement with blogs and social media precisely because of the risks attending upon such activity. On the other hand there seems to be a view that there should be greater engagement by the Judiciary, especially in the area of education about the judicial role and the Rule of Law. A debate about the issue can only be useful. As ObiterJ suggests “I suspect that this matter may have some distance to run.”
Appendix
In the interests of completeness, the advice from the Senior Judiciary in England reads as follows
Blogging by Judicial Office Holders
Introduction
This guidance is issued on behalf of the Senior Presiding Judge and the Senior President of Tribunals. It applies to all courts and tribunal judicial office holders in England and Wales, and is effective immediately.
Definitions
A “blog” (derived from the term “web log”) is a personal journal published on the internet. “Blogging” describes the maintaining of, or adding content to, a blog. Blogs tend to be interactive, allowing visitors to leave comments. They may also contain links to other blogs and websites. For the purpose of this guidance blogging includes publishing material on micro-blogging sites such as Twitter.
Guidance
Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered.
Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly.
Any queries about this guidance should be directed to [name removed] at Judicial Office – Tel: 0207 [removed] Email: [removed].
The Medium is the Message:[1]When are Digital Communications Harmful?
Introduction
The case of Paul Chambers v DPP has excited interest in the Internet community. It has become a flag bearer case for freedom of speech on the internet, for a demonstration of the unwillingness of legal institutions to understand the nature of humour but more importantly it is a case about the collision between content using a mass distribution system where the traditional one to many model utilised by monolithic media organisations has been usurped by a “many to many” model where user generated content is potentially available to all, and how that content should be interpreted in the context of law. In New Zealand there was a similar case, that of Police v Joseph, which involved a message communicated by means of a video posted to YouTube. This case note considers both cases and demonstrates that these cases and others involving the Internet suggest that the medium is as important as the message, and the medium, although in the background in terms of matters of interpretation, may assume a role that overtakes the message.
Paul Chambers was charged with sending by a public electronic communication network a message of a “menacing character” contrary to s.127(1)(a) and (3) of the Communications Act 2003. Section 127 of the Act addresses the problem of the unlawful use of the public electronic communications network and provides:
“(1) A person is guilty of an offence if he –
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both. …” [2]
Chambers, a well educated young man of good character, wished to make a trip to Ireland in January 2010. He was a subscriber to Twitter, and the person whom he was visiting was someone he had “met” through that Internet platform.
On 6 January 2010, following an alert on “Twitter”, Mr. Chambers became aware of adverse weather conditions causing problems at Doncaster, Robin Hood Airport. Some two hours later, when he heard that the airport had closed, he posted the following message:
“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”
The message was posted on a public time line and was available to be read by Mr. Chambers’ “followers” who numbered some 600. Nothing happened. None of Mr. Chambers’ followers seem to have been disturbed by the message.
Some 5 days later a duty manager responsible for security at Robin Hood airport conducted a search of Twitter postings about Robin Hood airport and came across Mr. Chambers’ 6 January message. He did not know whether the “tweet” was a joke or not, but as even a joke could cause major disruption it had to be investigated. Accordingly he referred the “tweet” to his manager, Mr Armson.
Mr Armson was responsible for deciding whether any perceived threat to the airport should be graded as “credible” or “non-credible”. If “credible”, it was to be referred immediately to the Ministry of Defence, but if “noncredible”, as a matter of standard practice it was to be reported to the airport police. Mr Armson examined the appellant’s “tweet”. He regarded it as “non-credible”, not least because it featured the appellant’s name and, as he noted, Mr. Chambers was due to fly from the airport in the near future. Nevertheless in accordance with airport procedure he passed this “tweet” to the airport police. The airport police themselves took no action, presumably for exactly the same reason, but they decided to refer the matter on to the South Yorkshire police.
The South Yorkshire police arrested Mr. Chambers, while he was at work, two days later, on 13 January on suspicion of involvement in a bomb hoax. It was now seven days since the offending message was “tweeted”. Mr. Chambers was interviewed under caution. When interviewed, and indeed in his evidence, the appellant repeatedly asserted that this “tweet” was a joke or meant to be a joke and not intended to be menacing. He said that he did not see any risk at all that it would be regarded as menacing, and that if he had, he would not have posted it. In interview he was asked whether some people might get a bit jumpy and responded “yah. Hmm mmm”.
On 10 February 2010, when the police investigation was completed, one of the investigating officers recorded the following observation on the South Yorkshire Police Crime Management System:
“Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.”
The police sought the advice of the Crown Prosecution Service. As a result Mr. Chambers was charged with the offence and was convicted in the Magistrates Court. He appealed to the Crown Court. The appeal was dismissed. On the basis of these facts the Crown Court was “satisfied” that the message in question was “menacing per se”. The lower Court took the view “that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it”.
The Crown Court went on to hold “that the required mens rea … is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so …” The court was satisfied that Mr. Chambers was, at the very least, aware that his message was of a menacing character. Mr. Chambers then appealed to the Divisional Court, which is part of the High Court of England and Wales.
The Medium – Content and delivery – a public communications network
The Court spent some time considering the nature of Twitter. This was necessary in light of a contention on the part of Chambers that the message was not sent by a public electronic communications network.
The manner in which the Court defined the medium had an impact upon the way in which it considered the message.
“Twitter”, it said, “enables its users to post messages (of no more than 140 characters) on the “Twitter” interne and other sites. Such messages are called “tweets”. “Tweets” include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech.
Those who use “Twitter” can be “followed” by other users and “Twitter” users often enter into conversations or dialogues with other “Twitter” users. Depending on how a user posts his “tweets”, they can become available for others to read. A “public time line” of a user shows the most recent “tweets”. Unless they are addressed as a direct message to another “Twitter” user or users, in which case the message will only be seen by the user posting the “tweet”, and the specific user or users to whom it is addressed, the followers of a “Twitter” user are able to access his or her messages. Accordingly most “tweets” remain visible to the user and his/her followers for a short while, until they are replaced by more recently posted “tweets”. As every “Twitter” user appreciates or should appreciate, it is possible for non-followers to access these “public time lines” and they, too, can then read the messages. It is also possible for non-users to use the “Twitter” search facility to find “tweets” of possible interest to them.”[3]
It was argued that the “tweet” was found by means of a subsequent search, and so should be treated as no more than “content” created and published on a social media platform rather than a message sent by means of a communications network. It seems that there was an attempt to differentiate between a message in dynamic form – one that was part of a rolling “conversation” or contemporaneous posting – and content in latent form – a form of data stored and available for reference. However, Chambers’ counsel, John Cooper QC, had to accept that a message on public “Twitter” is accessible to all who have access to the internet, and therefore, by inference, to the public, or to that vast section of the public which included anyone who chose to access a timeline consisting of any of the posted key words by use of a search engine. The Court adopted the approach of the Crown Court which held:
“The “Twitter” website although privately owned cannot, as we understand it, operate save through the internet, which is plainly a public electronic network provided for the public and paid for by the public through the various service providers we are all familiar with … The internet is widely available to the public and funded by the public and without it facilities such as “Twitter” would not exist. The fact that it is a private company in our view is irrelevant; the mechanism by which it was sent was a public electronic network and within the statutory definition … “Twitter”, as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful”
The potential (as opposed to actual) recipients were the public as a whole and the Court held that it was immaterial that Chambers intended that the message should be available to a limited class of people such as his followers who would take the remark as intended and be neither fearful nor apprehensive when they read it.[4] The Court held whether one reads the “tweet” at a time when it was read as “content” rather than “message” – that is at the time when it was posted – it was indeed “a message” sent by an electronic communications service for the purposes of s.127(1). Accordingly “Twitter” fell within its ambit. The latency or dynamism of the message mattered not.
The Message -“menacing” and the importance of context and approach.
The Court noted that the charge could not be proven unless the content of the message was of a menacing character. The Court held that the message should
“create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.” [5]
The Court went on to consider not only the impression that may be left with the reader but the context of the message. Counsel for the respondent emphasised the current climate of terrorism and threats to national security from possible terrorist attacks – something with which Britain has been living since the Irish troubles in the 1970’s and afterwards. The Court said that indeed was relevant to context but there were a number of other factors as well.
The offence was not one which was directed at the inconvenience caused by the message – a matter that is relevant in a consideration of the provisions of s 307A(l)(b) of the Crimes Act 1961.[6] Other contextual factors that the Court took into account in concluding that the message did not represent a threat, terrorist or otherwise, were[7]:
It was posted on “Twitter” for widespread reading by his followers drawing attention to himself and his predicament
It was not sent to anyone at the airport or anyone responsible for airport security, or any form of public security but rather was an expression of frustration that the airport was closed
The language and punctuation were inconsistent with the writer intending it to be as a serious warning. The double exclamation marks provided an example
The sender of the message identified himself – something that was unusual in terrorist messages.
There was ample time for the threat to be reported and extinguished given the large number of followers who were recipients of the tweet.
None of those who read the message during the first few days thought anything of it. These included the airport security people and the Police. It was when the matter came into the hands of the Crown Prosecution Service that it was given a serious interpretation.[8]
No weight appeared to have been given by the Crown Court to the lack of urgency which characterised the approach of the authorities.
The Divisional Court considered that disproportionate weight was placed by the lower Court on the response of Chambers in interview to how “some” people might react, without recognising that the care needed to approach such a widely phrased question in context. The response was part of the interview as a whole, when looking back at what Mr. Chambers admitted he had done and his assertions that it was a joke. The question based on what “some” people might think embraced everyone, included those who might lack reasonable fortitude. This entirely equivocal response added nothing which supported the contention that the message was of a menacing character.
Thus, it was not open to the lower Court to conclude that the message was of a menacing character.
Mens Rea
Although it was not necessary to do so, the Court briefly considered the issue of mens rea which was a matter which was not necessarily determined from the content of the message itself. Notwithstanding Lord Bingham’s comments in DPP v Collins where he said
“a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of the message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient”.[9]
The Divisional Court observed:
“We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. We would merely emphasise that even expressed in these terms, the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established.”[10]
Commentary
Is this a case about freedom of expression or the way in which expression should be approached in determining whether or not it is harmful?
One of the questions which the Court considered was whether the conviction amounted to a breach of Mr Chambers’ Article 10 right to freedom of expression- both whether there was interference, and if so, whether the interference was justified.
The Court approached its task with regard to the need to read the legislation in question in a way which is compatible with the European Convention on Human Rights (something required of it by section 3 of the Human Rights Act 1998) and bearing the right to freedom of expression in Article 10 in mind. The Internet and its platforms make dissemination of content and its persistence more readily possible and accessible than ever before – an aspect of the message – and the Court was not about to embark upon a wide ranging discussion of the nature of freedom of expression on the Internet. Rather, it looked at the history of the legislation which, as it became clear in the decision, addressed the era of the telephone and exchange based communications rather than the multi-platformed Internet. The 2003 legislation addressed the digital paradigm and the Court had this to say;
“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.”[11]
One wonders if a rights-based interpretation was necessary, given the way in which the Court approached the message. In adopting a context-based approach, it seemed unnecessary to approach the nature of menacing speech from a “freedom of expression” perspective. Given the Court’s approach, such a discussion was not engaged.
What the decision does address in the sub-textual sense is the way in which new technologies may challenge established lines of thought. As I have already stated, the 2003 Act and the use of the term the term “public electronic communciations network” brings the legislation into the digital paradigm. Yet it was necessary to carefully examine the operation of Twitter to ascertain whether it fell within the scope of the Statute and whether there was any difference between what I have suggested may be dynamic as opposed to a latent content. This analysis demonstrates that the medium is just as important as the message.
It must be pointed out that the Court’s findings should not have general application to Twitter as a platform. The reason is that it was considering the “public nature of tweets and its assessment of the “public” nature of Twitter “tweets” can only apply to the use of the “public line”. The decision did not address, because it was not relevant, the nature of direct messages. Direct messages are defined by Twitter as “a private message sent via Twitter to one of your followers. You can only send a direct message to a user who is following you; you can only receive direct messages from users you follow.” [12] Whilst it is possible that direct messages may be retweeted the position is entirely different if a tweet is protected. In such circumstances it cannot be retweeted. [13] In these respects the “public” nature of Twitter may be modified. In future cases Courts will have to consider not only the content of the message, but the way in which the medium was used.
YouTube Anonymous
Police v Joseph – the New Zealand approach
Police v Joseph[14] was a similar type of case to that of DPP v Chambers within a different statutory setting. Joseph was charged with a breach of s 307A(l)(b) of the Crimes Act 1961 in that he without lawful justification or reasonable excuse and intending to cause a significant disruption to something that forms part of an infrastructure facility in New Zealand namely New Zealand Government buildings did communicate information that he believes to be about an act namely causing explosions likely to cause major property damage.
The somewhat convoluted provisions of s. 307A read as follows:
Threats of harm to people or property
(1)Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she—
(a) threatens to do an act likely to have 1 or more of the results described in subsection (3);or
(b) communicates information—
(i) that purports to be about an act likely to have 1 or more of the results described in subsection (3); and
(ii) that he or she believes to be false.
(2)The effect is causing a significant disruption of 1 or more of the following things:
(a) the activities of the civilian population of New Zealand:
(b) something that is or forms part of an infrastructure facility in New Zealand:
(c) civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of trustees of schools):
(d) commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).
(3)The results are—
(a) creating a risk to the health of 1 or more people:
(b) causing major property damage:
(c) causing major economic loss to 1 or more persons:
(d) causing major damage to the national economy of New Zealand.
(4) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).
The Facts
Mr. Joseph, a secondary school student at the time, using his laptop, created a video clip that lasted a little over three minutes and in which by accessing voice software he created messages of threats to the New Zealand Government accompanied by some images that linked the language with terrorism, such as pictures of the aerial attack on the World Trade Centre and images of Osama Bin Laden. It included statements such as:
• We will begin a terror attack – we will be attacking the New Zealand Government- We have targeted all New Zealand Government buildings –
• We have placed large amounts of explosives in hidden locations on all buildings –
• We have targeted all New Zealand Government websites and will take it down-
• We will hack all of New Zealand’s media ·websites-
• We will release all Government secrets that have not been released to Wikileaks or the public-
• We will hurt anyone that gets in our way unless you do what we say.
The clip demanded that the Government repeal or not pass an amendment to the Copyright Act addressing a three strikes regime for copyright infringement by file sharing. The clip was posted on 6 September 2010 and a deadline was set for 11 September 2010. The clip was attributed to a group known as Anonymous. The Judge observed that:
“Anonymous is a well known sponsor of a website, the authors and personnel behind it being unknown, which is committed to airing protests and threats of electronic cyber attack and subversion of official and Government internet communications and sites which it perceives is under a threat to its freedom of expression on the internet. Anonymous stands for protection of such perceived rights of free speech and claims that such freedom should apply to internet communications. It is known to have a policy which does not permit bomb threats or rhetoric around violence and physical subversion.”[15]
The clip was posted to YouTube but it was not available to the public by means of a search. It was unlisted and could only be located by a person who was aware of the link to the particular clip. The defendant provided the link to news organisations, to a “fake” John Key[16] Facebook page that he created – the number of links amounting to 21. There was a photograph of John Key’s Auckland house. In his interview with the Police the defendant made complete admissions of every step taken in this entire process and said that his reason for including a John Key link was ….. “so that I can spread the video”.
The clip came to the attention of the Government Communications Security Bureau (GCSB) on 7 September 2010 who passed the information on to the Police Cybercrime Unit to commence an investigation. The deadline of 11 September came and went but by that time the identity of the defendant had been ascertained. An initial communication from the GCSB on the morning of 7 September postulated that the clip could be a “crackpot random threat” and confirmed that its communication was “completely outside the Anonymous MO”.[17]
The defendant was spoken to by the Police on 15 September and made full admissions of his involvement. At the time of the investigation over a hundred visits had been made to the site before it was quickly closed down following the intervention of the GCSB.
The Issue
The primary issue was the intention of the defendant. Section 307A requires proof of an intention, without lawful justification or reasonable excuse, to cause significant disruption to one or more of the four community agencies identified in subsection( 2) by communicating information known to be false which would cause one of the outcomes in subsection (3).
The Judge identified the elements to be proven as:
(a) that the defendant communicated information that he knew (therefore believed) to be false (1 (b) (ii)). This was information about an attack on Government buildings by use of hidden explosives, attacks on websites, security leaks and harm to persons;
(b) that the information communicated was about an act likely to create risk to the health of one or more people and/or cause major property damage (3(a) and (b)). Although the charge is expressed as only alleging a result causing major property damage (3(b)), in opening the prosecutor explained that the evidence with the Court’s leave would also be offered as alleging a result that created a risk to the health of one or more people (3(a));
(c) that the communication was without lawful justification or reasonable excuse;
(d) that when making the communication, the defendant intended to cause significant disruption to something that is or forms part of an infrastructure facility in New Zealand (2(b)).
The defendant offered as an explanation that the file sharing provisions of the Copyright Act were an infringement of his right to freedom of expression, a right preserved by s 14 of the New Zealand Bill of Rights Act 1990 which he suggested applied to web and internet communications, but whilst offering this as his reason for what he did, he did not develop it as a defence.
In considering the issue of intent the Court had this to say:
“Did the defendant intend to cause a disruption to an infrastructure facility of New Zealand and if so, did he intend that disruption to be significant? First because there was no disruption to any of the agencies or infrastructure organs randomly and repeatedly mentioned in the clip, there being no evidence that any steps were taken to evacuate buildings or to put people on notice or to search premises etc, it is quite open to the Court to accept that the investigators did not consider any responses were necessary, and that would be consistent with the defendant’s own assertions that the extreme statements that had such violent connotations were only meant to be a “joke”
It was clear to the Court that Mr. Joseph wanted to ensure that his protest did not go unnoticed – that it was not drowned out by the “noise” that pervades the Internet. He chose extreme language and images to make his point, and couched his protest in violent terms although during his interview with the Police he expressed his remorse.
The judge considered the nature and extent of disruption anticipated by the statute. He said:
“I suggest that for our purposes a level of disruption intended would need clearly to be more than de minimis or more than of such little impact that it could be ignored. A test could be- has there been an interruption to the normal flow of things in the routine activity of an infrastructure, that is due to an element of influence that has generated a degree of disorder that requires particular application of attention – that requires a particular level of intensity and focus. If a disruption could be so described then, I expect it could be rightly called “significant”.”[18]
The judge expressed doubt that it was the defendant’s intention to cause such a level of disruption and agreed with the submission on behalf of the defendant that the intention had to be a specific one and did not encompass recklessness. He described the intention of the defendant as having his message seen and observed on the Internet and although his behaviour in uploading the clip to YouTube in an Internet café and using an alias could be seen as pointing to an awareness of unlawful conduct in that the defendant did not want to get caught. However it did not point to proof of the intention to cause disruption of the level anticipated by the statute. It transpired that the defendant was aware that the clip would probably be seen by the authorities and also that he expected that it would be “taken down”.
In addition to his legal assessment of the clip, the Judge also made an “aesthetic” one
“Whilst there might be a gasp (so to speak) of concern and apprehension when listening to and seeing the early parts of the clip, by the time it concluded one would know that it lacked any cohesion or spine of rationale and it was filled with vacuous repetition and confusion. It made quite a low grade impression on the Court and it would be expected I dare say to do likewise to most serious viewers of it…..
The defendant predictably, presented as a bright and typically articulate young man with ease of understanding of things “cyber” and with a level of competence in computer skills that is common for people of his age these days, but his passion, should it be accepted in good faith, to protect freedom of expression on the internet, and his outrage at perceived endeavours to trammel that, was expressed in a fairly immature way and without any ideological conception…
To describe the grotesque threats as being a joke, is trite also – even repugnant, but that does not go so far as to establish beyond reasonable doubt that he had the intention to significantly disrupt an infrastructure”[19]
Commentary
The Joseph case presents some interesting aspects of the use of the medium. Perhaps most significantly the video that was placed on YouTube was not made available for public searching. It was available only to those who were aware of the link. This means that the ability to distribute the message is in the hands of the person uploading the material to YouTube. A person may therefore post something to YouTube that is truly frightening or menacing, but which may never be available to the public. In such a situation the “communication of information” may be far removed from the mischief that the Statute seeks to address. This demonstrates the care with which one must approach the issue of dissemination of information on the various platforms available on the Internet. The utilisation of the medium may have an aggravating or mitigating effect upon the message.
Mr. Joseph went a step further. Instead of making the link available to a select few close friends he distributed the message to a number of “public” organisations, news media among them. Interestingly enough his threat was not published in the mainstream media and it was left to those who assess communications threats – the GCSB – to do something about the message. However, by making the link available to the news media and other organisations it was clear that Mr Joseph wanted to get his message widely published.
Interestingly the “freedom of expression” aspect of the message was not addressed although s. 307A(4) provides a specific exemption for political or industrial action and associated speech. The mere fact of protest does not of itself provide a basis for inferring that an offence against s. 307A(1) has been committed. Of course, in this case the Judge not only needed to consider the motivation for the message as well as its content . But the debate on the Counterterrorism Bill, which contained the proposed s. 307A, makes it clear that freedom of expression issues concerned the legislators.
During the debate on the Counterterrorism Bill[20] Keith Locke MP made the following observation:
“Perhaps the most dangerous change is the proposed new section 307A of the Crimes Act, in clause 7, that could lead to heavy penalties for people threatening to engage in forms of protest action that cause “major economic loss to one or more persons”. Let us consider the current debate over the foreshore and seabed, particularly over consents for marine farming. Various Māori spokespeople have talked about the possibility of taking direct action. Under this provision, if Marlborough Māori even so much as threaten to conduct some protest on the water that might affect the establishment and functioning of a marine farm, they could get up to 7 years in jail. The same applies to groups that threaten to pull out GE food crops planted after the moratorium is lifted.
Trade union strikers could also be hit by this law. Unions often threaten industrial action if negotiations break down. There is a so-called comfort clause, new section 307A(2), which provides that threatening a strike “by itself” is not criminal. But that does not stop threatening a strike from being against the law if it will cause major economic loss. We all know that the aim of strikes is to cause the maximum economic disruption of a workplace in order to get the employer to negotiate more reasonably. Section 307A(2) is clearly a threat to the right of protest and free speech.”[21]
When the Bill went to the Committee of the Whole on 21 October 2003 Mr. Locke raised some concerns about the effect of what was to be come s.307A(4), describing it as a “comfort clause”.
“If someone who is involved in protest action does actually cause the effects I have just described, he or she is still covered, despite this comfort clause. But I have put forward an amendment. If people think that strikes, lockouts, and legitimate protests are protected under this clause, then I have moved an amendment to cut out the two words “by itself” so it would be clear that people involved in strikes, lockouts, industrial action, and other protest action will not be covered by that.” [22]
Dr. Wayne Mapp[23] answered Mr. Locke’s criticism as follows:
“People would have to do two things, in fact, not one. Their actions have to intend the effect of one of these offences: they have to affect the civilian population of New Zealand, not just one person but the entire population or a large chunk thereof; and, they have to do something that would threaten an infrastructure facility—something pretty fundamental. The next thing mentioned in the section is the civil administration of the country, and, finally, the commercial activity. These are global concepts—actions cannot be narrowly focused…..
In essence, two things are required. Firstly, one has to have an “effect”, and, prior to the dinner break, I listed the effects. They are things of widespread significance to New Zealand—that is, affecting our civilian population, the infrastructure facility, civil administration, or commercial activity. These are not individual activities, in my view. They are something of general effect. That is how the words will be interpreted. That is the first test that has to be satisfied—namely, an effect. In addition, a “result” has to be intended. They are: creating a risk to the health of one or more people—admittedly that is narrower, in the sense of numbers; causing major property damage; causing major economic loss to one or more persons; and causing major damage to the national economy of New Zealand. The fact is that those are accumulative requirements—the widespread effect, leading to the result—both of which must be in the contemplation of the person. It is those two things together that would cause the activity to be caught by section 307A.
Then, on top of that, as Mr Locke noted earlier, there is the avoidance provision. So those things are not caught if they are derived from a strike, lockout, industrial action, advocacy, dissent, etc. It is not a complete exemption. Mr Locke has put up a Supplementary Order Paper that would have those as a complete exemption. I believe he is also wrong there. What if the intended outcome of the protest or dissent were this widespread effect, followed with the intended result? Surely one could not be supporting that kind of dissent. After all, one might even argue that Hamas would otherwise be exempted. Yet they conduct terrorist activities on a daily basis, which have these causes, these effects, and these results.”
Clearly the impact of the issue of protest and the threshold that would have to be crossed before protest became behaviour that would be caught by the section was in the mind of the House. It should also be noted that protest, in and of itself, is not the target. There would, as suggested by Dr Mapp, have to be other features of behaviour to engage the section.”
Conclusion
It is unwise to make generalised assertions about communication on a particular platform on the Internet or on the Internet in general. Often the platform will have certain specific characteristics or utilities that a user may employ to limit or enhance the communication of the message. The direct messaging utility in Twitter and the “access by link” utility in YouTube provide a couple of examples. Thus, as is so often the case in the law, context matters[24] and the context of the medium may be as important as the message. Once the medium and its impact has been considered the context of the message must be considered. In both Chambers and Joseph the messages, although described as a joke, were not intended to be taken seriously. This demonstrates the care that must be adopted when addressing the one-dimensional medium of text, unassociated with the other aspects of oral communication such as facial expression, tone, inflexion, body language and other visual aids to communication.[25]
In addition the medium has its own impact. The field of defamation provides an example. Loose talk is common on the internet. Internet users are far more likely to make derisive or personal comments about other contributors to discussion groups or on blogs and comments pages. This increases the likelihood of defamatory material being produced. The internet, and especially email, encourages a new kind of language that is more clipped, blunt and capable of misinterpretation.[26] Burrows and Cheer[27] warn that words can be coloured by their surroundings and thus may be defamatory or not depending upon the context in which they occur[28] – the question must be asked whether the ordinary, reasonable reader reads messages on a bulletin board in the same way as if it were published in a daily newspaper:[29]
Certainly there is a culture of robust speech on the Internet. In its early days the internet was a place dominated by technophiles, academics and workers in the computer industry who have been described as having a strong collective sentiment towards anarchy, libertarianism and free speech rights. Thus a culture of free and frank speech developed, regulated to a degree by the users themselves. There are many examples of “flaming” or “flame wars” that were abusive and in which libellous comments could be exchanged, but it was part of the culture of the internet and although not actively promoted was at least tolerated.[30]
Both Chambers and Joseph are illustrative of the sometimes hyperbolic communication that characterises some content on platforms on the Internet. In this respect it may be useful for those investigating and considering laying charges which seem to amount to “harmful digital communication” to consider carefully the overall context of the communication. In Chambers the Court did just that, observing the fact that there was easy identification of Mr Chambers, and the use of double exclamation marks along with the accused’s own explanation.
Within a wider framework the two cases demonstrate some of the underlying enabling qualities of the digital technologies and the Internet. The development of Web 2.0 and the rise of citizen journalism by bloggers, the ways in which user created content can become available to a worldwide network via social media such as Twitter, Facebook, blogs and YouTube pose fresh challenges for those who have to assess threats. I have described some of these qualities elsewhere.[31] Those of participatory information creation and sharing, dynamic information, persistence of information, dissociative enablement and permanent connectedness seem to be applicable in this case. These are qualities underlying the Internet and digital communications systems that are going to pose problems for those upon whom harmful digital communications have an impact, whether as recipients, investigators or decision makers. What is of concern is that the opportunities afforded by the Internet in terms of giving effect to freedom of expression run up against fear and misinterpretation. Chambers and Joseph demonstrate the care that must be taken.
[1] Marshall McLuhan Understanding Media: The Extensions of Man – Critical Edition Terrence Gordon (ed) (Gingko Press, Berkeley CA 2003) p. 17 et seq
[2] I have italicised the relevant parts of the section with which Mr Chambers was charged.
[8] It has subsequently been reported that notwithstanding advice from the Crown Prosecution Service that prosecuting the appeal may no longer be in the public interest, the Director of Public Prosecutions decided to proceed.
“The CPS even sent Chambers and his solicitor, free-speech campaigner David Allen Green, papers stating that it now agreed that the case should end. However, at the last minute the DPP, former human rights lawyer Keir Starmer, overruled his subordinates, it is alleged.” Nick Cohen “’Twitter joke’ case only went ahead at insistence of DPP” The Guardian 28 July 2012 http://www.guardian.co.uk/law/2012/jul/29/paul-chambers-twitter-joke-airport (last accessed 29 July 2012)
[9] [2006] 1 WLR 308 (Divisional Court) and [2006] 1 WLR 2223 (House of Lords)
If another user’s Tweets are protected, you will not be able to retweet their content. You can see their Tweets in your timeline because they have accepted your follow request, but because they have chosen not to share their Tweets publicly, their Tweets cannot be retweeted by you or anyone else.
If you see the lock iconnext to the user’s name and information on their profile page or on their Tweets, their Tweets are protected and you will not be able to share their Tweets on your timeline through Twitter’s retweet feature. Twitter Help Center “Why Can’t Some Tweets be Retweeted” https://support.twitter.com/articles/77606-faqs-about-retweets-rt (last accessed 29 July 2012)
[14] Unreported District Court Manukau CRI 2011-092-014673 21 June 2012 Thorburn DCJ
[26] P Quirk “Defamation in Cyberspace and the Corporate Cybersmear” in A Fitzgerald and others (eds) Going Digital 2000 Legal Issues for E-Commerce Software in the Internet (Prospect Media Pty Ltd, St Leonards, 2000) at 298; J Tunstall Better, Faster Email: Getting the most out of email (Allen & Unwin, Sydney, 1999).
[27] J Burrows and U Cheer Media Law in New Zealand (5th ed, LexisNexis, Wellington, 2010) at [2.2.4(b)(v)].
[28] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.
[29] R Tobin “Casenote: O’Brien v Brown” (2001) 1 Butterworths Technology Law Forum 100.
[30] Judge David Harvey internet.law.nz 3rd ed (LexisNexis, Wellington, 2011) p. 603
The IT Countrey Justice 