New News Opportunities

In the newspaper this morning there were a couple of articles that caused me to reflect on the level of understanding of the Digital Paradigm. The first by respected business journalist Fran O’Sullivan was about the consequences of the refusal of the Commerce Commission to approve a merger of media giant Fairfax and NZME. But the real focus of the article was about the effects that digital businesses are having on established organisations and the inroads that are being made to traditional funding models. The second was about Margarethe Vestager, the head of the Directorate General for Competition. That article was about the importance, at least to the EU, of the philosophy that a well-policed economy yields the largest and most widespread benefit for society. Some of the examples of steps that were taken involved digital economy giants like Apple, Google and Amazon.

By way of a very brief background, the New Zealand Commerce Commission has made a few waves lately by refused approval for two significant attempts by large media companies to merge. The first was Sky and Vodafone – a broadcaster and a communications company. The benefits of the merger for both companies were obvious. Access to a large well developed Internet provider (Vodafone) by Sky. Ability to enhance an established content delivery service with an established customer base (Sky, albeit content delivery methods are outdated but the merger would have changed that) by Vodafone. But no, said the Commerce Commission. For reasons expressed in a 140 + page decision, this was not a good idea.

The second attempt was a proposed merger between news media companies Fairfax (an Australian company) and NZME (publisher of the NZ Herald). Not a good idea, said the Commerce Commission once again, failing to see the dire state of the news media market but concerned that one company might have too much control over content, especially in an election year – conceptually, a lack of diversity in the news media market.

So that is the background. What Fran O’Sullivan complains about is the fact that the Commerce Commission overlooked or understated the impact of digital players like Google and Facebook on advertising revenue, and the effect that this is having on the viability of news media operations. And of course, a viable Fourth Estate is an important and critical feature of a modern democracy – prepared to hold authority to account, prepared to ask to hard questions, prepared to investigate and uncover malpractice of any sort in the corridors of power.

The focus of the article of the EU Directorate for Competition (EUDC) is mistrust of large corporates and one wonders whether or not that mistrust is the starting point or develops from an evidential foundation. Although there is a hat-tip to the market, it seems to me that the EUDC is about policing and control.

But common to both articles and especially to that of Fran O’Sullivan is a concern about the disruptive effects that new technologies are having on commercial activity. From the news media perception the concern is palpable. The old model is under threat. The solution, according to O’Sullivan is to regulate what she described as the oppressive behaviour of the digital corporates. She suggests that it is time that politicians woke up to the problem and cites steps that are being taken in Australia to examine the impact on public interest journalism of search engines and social media as well as an investigation into “fake news”.

The disruptive effects of new technologies have been going on for some time. We are well into the Digital Paradigm, but not so far out of the old pre-digital paradigm to be concerned that the past ways of doing things may not continue. We anchor ourselves in a comfortable past and really do not like change – especially when there are those who have the foresight and initiative to profit from disruptive change.

The news media provides an interesting model because in fact it is the child of the first communications technology paradigm shift – the printing press. I have suggested elsewhere that the Digital Paradigm is at least as significant, especially in the field of communications, as the printing press. And for some time it has been having a disruptive effect. Initially news media answered the new technology by putting news content online. Some providers set up paywalls for content – an attempt to continue to monetise what they were publishing. This is not a bad thing. You have to pay to buy a “kinetic” newspaper. Why not do the same online?

Convergence posed its own challenges as newspapers online began to include video content and broadcasters included text articles among their offerings. The question arises as to which standards apply to whom. Are broadcasters who make text available subject to the Press Council? Are traditional print media who make video available via a website subject to the Broadcasting Standards Authority? Since the Online Media Standards Authority (OMSA) was absorbed into the Press Council it would seem that the Press Council may be the answer to the regulatory convergence problem. The Government missed the opportunity presented to it by the Law Commission in 2013 to have a single media regulatory body – a very bad call in my opinion.

But the regulatory bodies that have been set up deal with content. The Press Council and the Broadcasting Standards Authority don’t deal with struggling or failing business models. The Commerce Commission could indirectly have done so but didn’t.

One option is to try and maintain the existing business model. As O’Sullivan suggests, bring the digital corporates to heel in the same way as the EUDC does. In this way they may not pose such a threat to the established model which may just manage to hang on for just a little while longer. But in preserving the existing model it is necessary to call on the coercive power of government. A protectionist perpetuation of a model that has had its day.

Another option is to recognise that the business models that underpin the news media and so-called public interest news media is the child of a paradigm that no longer exists. Unless the news media adapts it will die. And if this sounds like a call for evolution in the face of revolution – a sort of economic Darwinism – that is exactly what it is. The Digital Paradigm is so fundamentally different from what could be called the print or kinetic paradigm that news media companies are going to have to examine more than just content delivery but realise that they must examine, understand and utilise the underlying qualities of the new paradigm to develop their business models. And that takes a lot of thinking outside the box and a willingness to start again from scratch.

The result may be an entirely different method of news dissemination – not local but global. Multinational media companies are not unknown, even now but the business model and the way that business is conducted may be radically different from, say, Newscorp.

The third way may be based on the adage “if you can’t beat’ em, join ‘em” One of the targets of the EUDC has been Amazon. Amazon’s founder and CEO is Jeff Bezos. And Jeff Bezos bought the Washington Post for $250 million – and turned a legacy news media organisation around. Perhaps those who are concerned that the digital corporates are posing a threat to current news media business models should rather view them as an opportunity for change.

Authoritative Digitised Legislation

Introduction

The use of legislative material and, more importantly whether a court will accept it without question,Legislation is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.

Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.

Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:

(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—

(a)   To be a correct copy of that Act of Parliament, enactment, or legislation; and

(b)   To have been so printed or published.

The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.

Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:

(1) Subsection (2) applies to a document that purports—

(a)   to have been printed in the Gazette; or

(b)   to have been printed or published by authority of the New Zealand Government; or

(c)   to have been printed or published by the Government Printer; or

(d)   to have been printed or published by order of or under the authority of the House of Representatives.

(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.

The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:

1.    It is not for the court to ask whether or not the copy proffered is authoritative.

2.    It is for counsel to satisfy himself or herself that what is being proffered is authoritative.

That is all about to change.

Digitised Legislation

The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.

From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..

Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:

  •  every act and legislative instrument (LI) enacted or made since 2008;
  • every reprint (subsequent version) of those acts and LIs;
  • the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
  • the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).

Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.

Pre-Print

In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.

Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.

Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.

For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.

Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.

Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.

Introduction of Print and the Royal Printer.

I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.

Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.

On 5 December 1485, Peter Actors 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.”

 Henry VII utilized print for propaganda purposes and was the first English monarch to do so  And 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.  It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.

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 by the technology of print.

The importance of printing and its status continued to be recognised 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.”

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 publicised, 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 recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised 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.

One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.

The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.

An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.

The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.”  There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.

The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material –  although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.

 Print vs Manuscript

Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.

In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’  In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.

This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.

Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.

The Digital Paradigm

Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.

This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:

 “When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”

The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.

As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium

“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”

But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.

On-Line Speech Harms

A Sketch of Issues to be Considered in Legislating for the Digital Paradigm

This is a paper that was presented to the Bullying, Young People and the Law Symposium held under the auspices of the Allanah and Madeline Foundation in Melbourne 18 – 19 July 2013. It was part of a New Zealand contribution to the symposium by Cate Brett of the Law Commission, Martin Cocker of Netsafe and the author. The presentation accompanying this paper may be found here.

Introduction

This paper argues that legislating for behaviour in the digital environment raises unique issues. Whereas legislating for the physical world has certain architectural and physical constraints, such constraints may not be present in the digital space, or may be so paradigmatically different that new considerations need to be employed. This paper considers firstly the qualities and properties of digital technologies that provide challenges for conventional legal processes. It then goes on to consider the New Zealand Law Commission proposals to deal with on-line speech harms and any limitations on the effectiveness of those provisions. It concludes with some thoughts about the application of values developed within one paradigm to those who live in another.

The Digital Paradigm

Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm. He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[1] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

But there is more to this discussion than the content that media convergence enabled by digital technologies provides.  Content, as McLuhan said, is  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind.” [2] It is as important to understand how it is that digital information technologies work. We need to understand the underlying qualities or properties of digital technologies to understand the way in which they drive our information uses, activities and behaviours. Permit me a brief digression while I offer an example.

Information Technology Properties – The Printing Press

In her seminal work on the printing press – The Printing Press as an Agent of Change – Elisabeth Eisenstein identified six fundamental qualities that the print technology introduced that dramatically challenged the way in which the scribal culture produced texts.   These particular qualities were the enablers that underpinned the distribution of content that enhanced the developing Renaissance, that spread Luther’s ninety-seven arguments around Germany in the space of two weeks from the day that they were nailed on the Church door at Wittenberg, and allowed for the wide communication of scientific information that enabled experiment, comment, development and what we now know as the Scientific Revolution.

And it also happened in my own field the law.  Within 300 years of the introduction of the printing press by Gutenberg the oral-memorial customary- based ever-changing law had to be recorded in a book for it to exist.

It would be fair to remark that Eisenstein’s approach was and still is contentious. But what is important is her identification of the paradigmatic differences between the scribal and print cultures based upon the properties or qualities of the new technologies. These qualities were responsible for the shift in the way that intellectuals and scholars approached information.

There were six features or qualities of print that significantly differentiated the new technology from scribal texts.

a) dissemination

b) standardisation

c) reorganization

d) data collection

e) fixity and preservation

f) amplification and reinforcement.

For example, dissemination of information was increased by printed texts not solely by volume but by way of availability, dispersal to different locations and cost. Dissemination allowed a greater spread of legal material to diverse locations, bringing legal information to a wider audience. The impact upon the accessibility of knowledge was enhanced by the greater availability of texts and, in time, by the development of clearer and more accessible typefaces.

Standardisation of texts, although not as is understood by modern scholars, was enabled by print. Every text from a print run had an identical or standardised content. Every copy had identical pagination and layout along with identical information about the publisher and the date of publication. Standardised content allowed for a standardised discourse. In the scribal process errors could be perpetuated by copying, and frequently in the course of that process additional ones occurred. However, the omission of one word by a compositor was a “standardised” error that did not occur in the scribal culture but that had a different impact and could be “cured” by the insertion of an “errata” note before the book was sold. Yet standardisation itself was not an absolute and the printing of “errata” was not the complete answer to the problem of error. Interaction on the part of the reader was required to insert the “errata” at the correct place in the text.

In certain cases print could not only perpetuate error but it could be used actively to mislead or disseminate falsehood. The doubtful provenance of The Compleate Copyholder attributed to Sir Edward Coke is an example.[3] Standardisation, as a quality of print identified by Eisenstein, must be viewed in light of these qualifications.

Print allowed greater flexibility in the organization and reorganization of material and its presentation. Material was able to be better ordered using print than in manuscript codices. Innovations such as tables, catalogues, indices and cross-referencing material within the text were characteristics of print. Indexing, cross-referencing and ordering of material were seized upon by jurists and law printers.

Print provided an ability to access improved or updated editions with greater ease than in the scribal milieu by the collection, exchange and circulation of data among users, along with the error trapping to which reference has been made. This is not to say that print contained fewer errors than manuscripts. Print accelerated the error making process that was present in the scribal culture. At the same time dissemination made the errors more obvious as they were observed by more readers. Print created networks of correspondents and solicited criticism of each edition. The ability to set up a system of error-trapping, albeit informal, along with corrections in subsequent editions was a significant advantage attributed to print by the philosopher, David Hume, who commented that “The Power which Printing gives us of continually improving and correcting our Works in successive editions appears to me the chief advantage of that art.”[4]

Fixity and preservation are connected with standardisation. Fixity sets a text in place and time. Preservation, especially as a result of large volumes, allows the subsequent availability of that information to a wide audience. Any written record does this, but the volume of material available and the ability to disseminate enhanced the existing properties of the written record. For the lawyer, the property of fixity had a significant impact.

Fixity and the preservative power of print enabled legal edicts to become more available and more irrevocable. In the scribal period Magna Carta was published (proclaimed) bi-annually in every shire. However, by 1237 there was confusion as to which “Charter” was involved. In 1533, by looking at the “Tabula” of Rastell’s Grete Abregement of the Statutys a reader could see how often it had been confirmed in successive Royal statutes. It could no longer be said that the signing of a proclamation or decree was following “immemorial custom”. The printed version fixed “custom” in place and time. In the same way, a printed document could be referred to in the future as providing evidence of an example which a subsequent ruler or judge could adopt and follow. As precedents increased in permanence, the more difficult it was to vary an established “custom”. Thus fixity or preservation may describe a quality inherent in print as well as a further intellectual element that print imposed by its presence.

Although Eisenstein’s work was directed more towards the changing intellectual environment and activity that followed the advent of printing and printed materials, it should not be assumed that printing impacted only upon intellectual elites. Sixteenth and seventeenth century individuals were not as ignorant of their letters as may be thought. There are two aspects of literacy that must be considered. One is the ability to write; the other being the ability to read. Reading was taught before writing and it is likely that more people could read a broadside ballad than could sign their names. Writing was taught to those who remained in school from the ages of seven or eight, whereas reading was taught to those who attended up until the age of six and then were removed from school to join the labour force. Print made information more available to ordinary people who could read.

Another thing that we have got to remember is that media work on two levels. The first is that a medium is a technology that enables communication and the tools that we have to access media content are the associated delivery technologies.

The second level, and this is important is that a medium has an associated set of protocols or social and cultural practices including the values associated with information – that have grown up around the technology. Delivery systems are just machines but the second level generates and dictates behaviour.[5]

Eisenstein’s argument is that when we go beneath the delivery system and look at the qualities or the properties of a new information technology, we are considering what shapes and forms the basis for the changes in behaviour and in social and cultural practices. The qualities of a paradigmatically different information technology fundamentally change the way that we approach and deal with information. In many cases the change will be slow and imperceptible. Adaptation is usually a gradual process. Sometimes subconsciously the changes in the way that we approach information changes our intellectual habits. Textual analysis had been an intellectual activity since information was recorded in textual form. I contend that the development of principles of statutory interpretation, a specialised form of textual analysis, followed Thomas Cromwell’s dissemination and promulgation of the Reformation statutes, complete with preambles, in print.[6]

From all this it would be fair to ask –  what’s the difference? What’s changed? All we’ve got is a bunch of machinery that allows us to do what we have always done which is to read and watch movies and do the same things that we did with radio or the television – the only thing is that it’s all been brought together – there has been a convergence of the various delivery systems.    And on the surface that’s perfectly correct because what you are talking about there is content.  You’re talking about the material that’s delivered rather than looking at the delivery system.

The Medium Is….

Once there is a recognition of the fact that there are properties that underlie an information technology that influence the way in which we address content, and that will govern or moderate information activities,  we begin to understand what Marshall McLuhan meant by his aphorism “The Medium is the Message.” Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

The Properties of Digital Communications Technologies

Many of the properties that Eisenstein identified for print are present in digital technologies. Every new information technology – and this has been the case from the printing press onwards – has its own particular properties or qualities that significantly differentiate it from other earlier information technologies.

The properties that I identify are not an exclusive list. The identification of the properties or qualities of digital information technologies is very much a work in progress. But these are the ones that occur to me. Some of them have already been reflected in the discussion that has preceded and I give a very brief description of what each property means. A more detailed analysis has yet to be developed.

  • Persistence – summed up in the phrase “the document that does not die” – that once information is on the Internet it is more likely than not to remain there.

 Continuing change or what you could refer to as the disruptive element – continuing disruptive change is a characteristic of the digital space – the idea of a “breathing space” between times of accelerated change no longer exists. This quality is linked to “permissionless innovation” below.

 Delinearisation of Information – in essence, the effect of hypertext links that allow and enable thinking to follow other than a strictly logical sequence, but to branch of into related (sometimes tenuously related) areas of information

 Dynamic information – the ability to cut, paste, alter, change and modify text once it has been placed in digital format – exemplified by the ability of on-line newspapers to update stories or significantly alter them as new information comes to hand

 Dissociative enablement,  – the ability to sit behind a screen and say and do things that one would never contemplate face to face or in “meat space”

Permissionless innovation – you don’t need to ask to put a new tool or protocol on the Internet. Sir Tim Berners-Lee didn’t need anyone’s permission to bolt the World Wide Web onto the Internet; nor did Mark Zuckerberg with Facebook, Sergey Brin and Larry Page with Google, Jeff Bezos with Amazon or Jack Dorsey with Twitter. If you build it they will come sums up this quality.

Availability – information comes to the user. The print paradigm localised book based information in a library or a bookshop. The Internet brings directly information into the home.

Participation – this is a very wide concept which includes information and file sharing as well as the ability to comment on blog sites, post photos on Facebook, engage in Twitter exchanges, participate in IRC chatrooms and break new stories via a blog.

Searchability  is related to the next quality but is the first step in the information recovery process – a common feature of the Internet before it went commercial and thereafter has been to make some sense of the vast amount of information that is available. Thus from Gopher to Google the quest for making information available has been a constant, and it enables users to find what they are looking for.

Retrievability – and once the successful search has been carried out, the information is available and can be readily and immediately obtained – associated with information availability above.

This means that the information expectations of Digital Natives have been shaped and moulded by these qualities. Their uses and expectations of what happens in the on-line world are quite different to those of their parents (Digital Immigrants) or those of my generation (Digital Aliens). Thus any solution to on-line problems must be premised upon an understanding of the technology and the way that it shapes behaviours and values underlying those behaviours. The solution must also recognise another McLuhan aphorism – we shape our tools and thereafter our tools shape us.[7]

This of course gives rise to the question of whether or not the internet changes us forever.  Underlying this theory is the concept of neuroplasticity – the ability of the brain to adapt to and learn from new stimuli.   The concept of neuroplasticity was picked up by Nicholas Carr in his book The Shallows: How the Internet is changing the way we think, read and remember.[8]  His book, based upon an earlier article that appeared in the Atlantic, has as it thesis that the internet is responsible for the dumbing down of society based upon the way in which our minds respond both to the wealth of information and its availability.

The neuroplasticity argument is picked up by Susan Greenfield[9] who believes the web is an instant gratification engine, reinforcing behaviours and neuronal connections that are making adults more childlike and kids hungry for information that is presented in a super simplistic way but in fact reduces their understanding of it.  Greenfield is of the view that the web spoon feeds us things to capture our attention. This means we are learning to constantly seek out material that stimulates us and our plastic minds are being rewarded by our “quick click” behaviour.  We want new interactive experiences and we want them now.

This view is disputed by Aleks Krotoski[10] who firstly observed that there is no evidential support for Greenfield’s propositions which pre-suppose that once we used the web we will forever online and never log off again.  According to Greenfield, says Krotoski, we become connected to our computers and other devices in a co-dependent exclusive almost biological way ignoring where how and why we are connecting.  Krotoski, for example, disputes internet addiction, internet use disorder or neurological rewiring.

In some respects Carr and Greenfield are using the “low hanging fruit” of technological fear[11] to advance their propositions.  Krotoski’s rejection of those views is, on the other hand, a little too absolute and in my view the answer lies somewhere in between.  The issue is a little more nuanced than whether or not the Internet is dumbing us down or whether or not there is any evidence of that.

My argument is that the impact of the internet lies in the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

This may not seem to be as significant as Carr’s rewiring or Greenfields neuroplasticity but it is, in my view, just as important.  Our decision making is based upon information.  Although some of our activity could be termed responses to stimuli, or indeed it might be instinctive, most of the stimuli to which we respond can in fact be defined as information – if not all of it.  The information that we obtain when crossing the road comes from our senses and sight and hearing but in many other of our activities we require information upon we which may deliberate and to which we respond in making decision about what we are going to do, buy and so on.

And paradigmatically different ways of information acquisition are going to change the way in which we use and respond to information. There are other changes that are taking place that arise from some of the fundamental qualities that underline new digital communications technologies – and all communication technologies have these particular properties or qualities underlying them and which attach to them; from the printing press through to the wireless through to the radio through to television and into the digital paradigm.  It is just that digital systems are so fundamentally different in the way in which they operate and in their pervasive nature that they usher in a new paradigm.[12]

Looking at Solutions

Thus if we seek a solution to some of the problems that involve Internet-based behaviour we must recognise these qualities and impacts of the digital communications technologies that underlie these behaviours. For example any solution must recognise:

    • The time factor – in “internet time” information moves faster than it does in the real world
    • Information is dynamic and spreads “virally”
    • “Dissociative enablement” means that people are going to behave differently when operating from the apparent anonymity of a private room or space and from behind a computer screen
    • Any remedy is going to be partial – given that information on the internet is going to remain in some shape or form (the quality of persistence or “the document that does not die”)
    • Normal civil and political rights including a robust recognition of freedom of speech and expression and that the internet is neutral.
    • Restrictions on a free and open internet must be minimal.

The New Zealand Solution

The New Zealand solution set out in the Digital Speech Harms paper from the Law Commission takes a two-pronged approach. One involves the creation of a new offence. The other involves a fast-track solution of a civil nature involving the creation of a Communications Tribunal.

A New Offence

The Law Commission considers that causing harm by the use of a communications device should be criminalised. The first thing that must be recognised is that the use of communications device is not criminalised, nor may this be seen as an attempt to regulate the Internet. What is being addressed is a behaviour involving the use of a communications device that causes harm to another.

The proposed language of the offence is as follows:

Causing harm by means of communication device

(1) A person (person A) commits an offence if person A sends or causes to be sent to another person (person B) by means of any communication device a message or other matter that is—

 (a) grossly offensive; or

 (b) of an indecent, obscene, or menacing character; or

 (c) knowingly false.

 (2) The prosecution must establish that—

 (a) person A either—

 (i) intended to cause person B substantial emotional distress; or

 (ii) knew that the message or other matter would cause person B substantial emotional distress; and

 (b) the message or other matter is one that would cause substantial emotional distress to someone in person B’s position; and

 (c) person B in fact saw the message or other matter in any electronic media.

 (3) It is not necessary for the prosecution to establish that the message or other matter was directed specifically at person B.

(4) In determining whether a message or other matter is grossly offensive, the court may take into account any factors it considers relevant, including—

 (a) the extremity of the language used:

 (b) the age and characteristics of the victim:

 (c) whether the message or other matter was anonymous:

 (d) whether the message or other matter was repeated:

 (e) the extent of circulation of the message or other matter:

 (f) whether the message or other matter is true or false:

 (g) the context in which the message or other matter appeared.

 (5) A person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.

(6) In this section, communication device means a device that enables any message or other matter to be communicated electronically.

The message set out in subsection (1) has to pass a very high threshold. Similarly the intention test in subsection (2) is high and the criteria in subparagraphs (a) – (c) are conjunctive. Each one must be proven to the criminal standard. Subsection (4) sets out matters that a Court may take into account, but these criteria are not exclusive.

One matter that must be taken into account is that the section would have to be interpreted and applied in accordance with the provisions of the New Zealand Bill of Rights Act 1990 (NZBORA). Now the section as it stands criminalises a certain quality of speech, thus engaging a consideration of the freedom of expression right guaranteed by s. 14 of NZBORA. That must take into account issues of a justified limitation upon the freedom of expression right. In my view the application of NZBORA would necessarily result in a very cautious approach by a Court. The evidence of the offending would have to be clear and unequivocal and could not really apply to a trivial matter.

A problem that arises with prosecutions for such an offence is the nature of the legal process which rarely matches “Internet time” and the fact that the section does not allow for the removal of any offending material, thus allowing the persistence of the information. The section addresses the behaviour but the message may still remain, preserved on the Internet.

The Communications Tribunal

The proposal for a Communications Tribunal, and for the powers and remedies that Tribunal may bring to play could well address some of the qualities of the digital environment, and possibly more effectively than a criminal prosecution, which, in my view, would be reserved only for the most extreme cases.

The Communications Tribunal

a) would have a limited jurisdiction

b) could provide limited and specific remedies

c) would deal with content and not criminality

d) would operate “on the papers”

e) would be a remedy of last resort after a filtering process has been carried out by the Approved Agency

 

Communications Principles

On the face of it, the Communications Tribunal has some significant powers which, at first glimpse, interfere dramatically with freedom of expression. The approach by the Tribunal must be within the context of Communications Principles proposed by the Law Commission. These are:

Principle 1

A communication should not disclose sensitive personal facts about an individual.

Principle 2

A communication should not be threatening, intimidating, or menacing.

Principle 3

A communication should not be grossly offensive to a reasonable person in the complainant’s position.

Principle 4

A communication should not be indecent or obscene.

Principle 5

A communication should not be part of a pattern of conduct that constitutes harassment.

Principle 6

A communication should not make a false allegation.

Principle 7

A communication should not contain a matter that is published in breach of confidence.

Principle 8

A communication should not incite or encourage anyone to send a message to a person with the intention of causing that person harm

Principle 9

A communication should not incite or encourage another person to commit suicide.

Principle 10

A communication should not denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, ethical belief, gender, sexual orientation, or disability.

Matters that the Tribunal Would Have to Consider

In considering an application for relief the Tribunal would have to take into account the following:

(a) the content of the communication, its offensive nature, and the level of harm caused by it:

(b) the purpose of the communicator in communicating it:

(c) the occasion, context, and subject-matter of the communication:

(d) the extent to which the communication has spread beyond the original communicator and recipient:

(e) the age and vulnerability of the complainant:

(f) the truth or falsity of the statement:

(g) the extent to which the communication is of public interest:

(h) the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i) the conduct of the complainant, including the extent to which that conduct has contributed to the harm suffered.

The Law Commission also emphasised that in exercising its functions, the Tribunal should have regard to the important of freedom of expression. Thus an analysis pursuant to the provisions of NZBORA would have to be undertaken.

The Orders that the Tribunal Might Make

(a) an order requiring that material specified in the order be taken down from any electronic media:

(b) an order to cease publishing the same, or substantially similar, communications in the future:

(c) an order not to encourage any other person to engage in similar communications with the complainant:

(d) a declaration that a communication breaches a communication principle:

(e) an order requiring that a factually incorrect statement in a communication be corrected:

(f) an order that the complainant be given a right of reply:

(g) an order to apologise to the complainant:

(h) an order requiring that the author of a particular communication be identified.

These orders or parts of them may apply to the following:

(a) the defendant:

(b) an internet service provider:

(c) a website host:

(d) any other person, if the Tribunal considers that the defendant is encouraging, or has encouraged, the other person to engage in offensive communication towards the complainant.

Transparency would be ensured in that the Tribunal must publish its decisions and the reasons for them. This is necessary because if there are to be interferences with freedom of expression the reasons for such interference and the extent thereof should be published and made known to counter any suggestion of secret interference with freedom of speech.

As proposed the Communications Tribunal would have the following advantages in dealing with on-line speech harms and at the same time recognise some of the disruptive qualities of the digital paradigm:

a)  it would deal only with the most serious types of on-line speech harm, in that the Approved Agency would filter and deal with the majority of complaints.

b) It would provide a relatively swift response which would accord with “internet time” and at least attempt to mitigate some of the damage that could be done if the material in question was or going or was likely to go viral. Having said that, the persistence quality of information on the Internet may well provide an element of frustration, but responding to the source of the speech harm is a significant first step.

c) it would have an “on the papers” hearing which would obviate the need for conducting a full hearing with parties present, and which would have to fit in around other Court work. This said, with modern technology such as Skype it is possible that a “distributed hearing” where the participants would be other than in the Court building may be possible. New Zealand has specific legislation that allows this.[13]

d) it could provide a remedy by way of a take-down order but it should be noted that power would have to be exercised having regard to the freedom of expression provisions in NZBORA, and the correct analysis based on a proportional approach would have to be undertaken.

e) an order of the Tribunal would constitute a Court order which would receive recognition from providers such as Google or Facebook and thereby the removal of offending content could be expedited.

The Present State of the Play

The report has been received by the Minister.

She has indicated that the recommendation for a Communications Tribunal will not be adopted.

The proposed jurisdiction of the Communications Tribunal will be assumed by the District Court

Some of the issues that may arise and should be addressed as the policy develops into a Bill might include

a) lack of specialist expertise in the field of digital communications law on the Bench and the need for specialised training

b) potential procedural delays if Communications complaints are subsumed as part of the normal Court process – a “fast track” may need to be considered

c) variation or possible lack of consistency in the application of principles and the types of orders that may be made

d) whether or not a process may be developed which will take into account the qualities and realities of the digital paradigm and which recognise that the nature of Internet based communication is fundamentally different and potentially far more damaging than conventional bullying “speech”.

One thing is clear and it is that the activities of the Court in this area will be carefully scrutinised by lawyers, free speech advocates, Internet freedom advocates and the community in general.

A Cautionary Conclusion

There are some who follow the view of Edmund Burke – that each generation has a duty to succeeding generations. Because politics amounts to an intergenerational contract between one generation and the next, politicians should feel entrusted with the conservation of the past for future generations.

The problem is this – in a changing communications paradigm should digital immigrants tell digital natives how to live their lives in the digital environment?

The IT Countrey Justice

July 2013


[1] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover “Paratexts” (1992) 44 Stanford Law Review 509.

[2] Marshall McLuhan Understanding Media: The Extensions of Man Critical Edition W Terrence Gordon (ed)(Gingko Press, Berkeley Ca 2003)

[3]The Compleate Copyholder (T. Coates for W Cooke, London,1641) Wing C4912.

[4] Cited by J.A. Cochrane Dr Johnson’s Printer: The Life of William Strahan (Routledge and K Paul, London, 1964) p.19 at n.2.

[5] Lisa Gitelman “Introduction: Media as Historical Subjects: in Always Already New: Media, History and the Data of Culture (MIT Press, Cambridge, 2008) p. 7.

[6] This is a very bald assertion. The argument is a little more nuanced and involves a consideration of the use of the printing press by Cromwell, the significant increase in legislative activity during the course of the English Reformation, the political and legal purpose of statutory preambles, the advantages of an authoritative source of law in printed form for governing authorities, all facilitated by underpinning qualities of print such as standardisation, fixity and dissemination.

[7] Marshall McLuhan Understanding Media: The Extensions of Man  above n. 2.

[8] (Atlantic Books, London 2010). See also Nicholas Car “Is Google Making Us Stupid” Atlantic Magazine 1 July 2008 http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/  (last accessed 31 May 2013)

[9] See especially Susan Greenfield “Living On-line is Changing Our Brains” New Scientist, 3 August 2011 http://www.newscientist.com/article/mg21128236.400-susan-greenfield-living-online-is-changing-our-brains.html (last accessed 31 May 2013) For this and for her assertions of “internet addiction” she has she has been criticised by Dr. Ben Goldacre for claiming that technology has adverse effects on the human brain, without having published any research, and retracting some claims when challenged. Goldacre suggested that “A scientist with enduring concerns about a serious widespread risk would normally set out their concerns clearly, to other scientists, in a scientific paper”  Ben Goldacre, “Serious Claims Belong in a Serious Scientific Paper” The Guardian 21 October 2011 http://www.guardian.co.uk/commentisfree/2011/oct/21/bad-science-publishing-claims (last accessed 31 May 2013)

 

[10]Untangling the Web: What the Internet is Doing to You  (Faber, London 2013). Presentation by Aleks Krotoski at the Writers and Readers Festival, Auckland 19 May 2013. Personal discussion between the author and Aleks Krotoski 19 May 2013.

[11] Sometimes referred to as “The Frankenstein Complex”

[12] See above for some of the qualities of digital information technologies.

[13] The Courts (Remote Participation) Act 2010

The News Media meets New Media – a midpoint in technology driven rule making

The Law Commission Report

In March the Law Commission released its long awaited report “News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age.” The Reports addresses three major issues. The first is to develop and recommend a new regulatory framework for news media that recognises the multitude of disseminatory options available in the digital paradigm. The second is to consider what it refers to as harmful digital communications. In this section, which was the subject of a separate Ministerial Briefing Paper released in August 2012 the Law Commission considered the adequacy of existing sanctions and remedies for what may be called on-line speech harms. The third issue deals with entertainment content. The proposed “dismantling” of the separate regulatory structures for news dissemination leaves “entertainment content”, currently covered by the Broadcasting Standards Authority, out on something of a limb and although there are no set recommendations in this area, the Law Commission has suugested some possible lines of future enquiry

How this came about

The Law Commission commenced investigations into regulatory structures for the news media and other aspects of communicative technologies following a reference by the then Minister of Justice Simon Power who expressed his concerns in this way:

 “It’s a bit of a Wild West out there in cyberspace at the moment, because bloggers and online publishers are not subject to any form of regulation or professional or ethical standards.”

This followed the prosecution and conviction of Cameron Slater for breaching name suppression orders on his “blog” Whale Oil Beef Hooked.”

The terms of reference for the Law Commission were:

    •  How to define “news media” for the purposes of the law;
    • Whether and to what extent the jurisdiction of the Broadcasting Standards Authority and/ or the Press Council should be extended to cover currently unregulated news media and, if so, what legislative changes would be required to achieve this end; and
    • Whether the existing criminal and civil remedies for wrongs such as defamation, harassment, breach of confidence and privacy are effective in the new media environment and if not whether alternative remedies may be available.

In December 2011 The Law Commission presented an Issues Paper for comment. After a wide consultation process which concluded in March 2012 work commenced on the final report. This work was interrupted by concerns about bullying and cyberbullying.  The Minister of Justice, Judith Collins, asked the Law Commission to accelerate its report on this part of the terms of reference. A Cabinet Paper entitled “Harmful Digital Communications: The adequacy of the current sanctions and remedies” was released in August 2012. It appears as an appendix to the “New Media” Report.

The use of multiple technologies by News Media

The Law Commission focussed adopting a regulatory model that would address the way in which the News Media were adapting to and using new digital technologies. No longer were the points of difference between print, radio and television media present, although these media had different regulatory structures and standards. As the spread of the Internet became more pervasive so news media organisations adapted to it, presenting users with a rich mixture of content – text, audio-visual, multimedia – along with some of the other qualities that Internet technologies enabled by way of cross-linking and presentation that could not be achieved in the static disseminatory “one to many” model of the pre-digital environment. In its Issues Paper the Law Commission observed:

Where once newspapers and television were able to marshal their reporting resources around set broadcasting and printing schedules, now the internet enables – and requires – a constant supply of breaking and updated news. Newspaper publishers, with their long lead times between deadlines and distribution had, in the past, specialised in generating original news and analysis: now they must also compete head to head with broadcasters, including social media, in the live or spot news market.

In addition broadcast media was adapting from a strict time-based programming regime to a demand driven one, making content available for view at a time that it suited the viewer or the listener even although the availability of that content may be limited. In addition broadcast news utilised the internet to provide additional “in-depth” or “raw” material as an adjunct to a “formal” news broadcast. In its Issues Paper the Law Commission examined the way in which print, TV and radio were using the web as well as considering what it described as “Web only “News” Media. Examples were given of generalist news sitessuch as Scoop.co.nz, interent.co.nz and NewsRoom.co.nz. On-line aggregators such as those established by search engines such as Yahoo and Google feature as a new phenomenon in that they don’t produce any original content, relying instead on filtering, organising, repackaging and linking to content produced by others,including traditional media organisations.

Apart from what may be considered mainstream news media and various sites associated with it such as public relations and advocacy sites is the development of the Blogosphere and the rise of the citizen journalist, enabled by the democratising qualities of Web 2.0. Blogs vary greatly in terms of professionalism, readershipand 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.

The Law Commission observes:

Bloggers typically draw on material from a wide variety of media, integrating the original content on which they are commenting into the body of their work by cutting and pasting excerpts from mainstream media websites (text and video) and linking to other websites or bloggers. It is also common for bloggers to post documents and or links to source material (including, for example, official reports or research) referred to in their blogs.

Although primarily a forum for opinion, bloggers also break news, sometimes strategically. For example, …..blogger Cameron Slater broke a number of news stories which were subsequently carried in the mainstream media.Bloggers, including Cameron Slater, also frequently critique mainstream media and in particular point out when they have been “scooped” by a blogger.

Finally the Law Commission observed that the development of social media as a news disseminating medium, and especially Facebook and Twitter are demonstrative of the way in which new media impacts upon established news media norms. It cannot be overlooked that many established mainstream media sites enable the posting of a news story reference to an individual’s twitter feed with the opportunity for a (brief) comment.

The intersection of the various technologies mean that it is difficult to tell which news media organisation is subject to what regulatory body. Television websites contain text making them similar to but nor subject to the jurisdiction of the Press Council – a voluntary body. Yet the text content is not subject to the jurisdiction of the Broadcasting Standards Authority. Similarly the NZ Herald may include video content from its web-site that would look like a form of broadcast, yet this form of content is not covered by the Press Council.

The problem that has presented itself, especially from the perception of a regulator, is the way that Internet technologies allow the various forms of news dissemination to converge or merge together.

The Theory of Convergence

Media Convergence is not new. In 2000 Time Warner and AOL merged together. It was trumpeted as the first great media convergence, where a content creation company got together with an Internet  service provider thus providing a further means of content delivery and the homogenising of the two concepts where content and delivery into a seamless organisation.

The concept of convergence, especially of media convergence, is still debatable.  For some it is the blending of multiple media forms into one platform for purposes of delivering a dynamic experience. For others it is the merging of mass communication outlets – print, television, radio, the Internet along with portable and interactive technologies through various digital media platforms. It allows mass media professionals to tell stories and present information and entertainment using a variety of media and therefore Converged communication provides multiple tools for storytelling, allowing consumers to select level of interactivity while self-directing content delivery.

Most theorists agree that in general terms convergence means ‘coming together of two or more things’. However a variety of different arguments have been put forward in an attempt to define what exactly is coming together. It may be the coming together of different equipment and tools for producing and distributing news. Alternatively, it could involve the flow of content across multiple media platforms, suggesting that media audiences nowadays play a crucial role in creating and distributing content, and convergence therefore has to be examined in terms of social, as well as technological changes within the society.

Some commentators consider that media convergence should be viewed as cooperation and collaboration between previously unconnected media forms and platforms.  Another view of convergence is the blending of the media, telecommunications and computer industries or, in other words, as the process of blurring the boundaries between different media platforms and uniting them into one digital form.

In some respects this last definition sums up the problem that the Law Commission had. Technology had disrupted the old certainties and had presented the world with a new media distribution model. Providing a regulatory model would have to fit with the technology. There was no way that the new media landscape was going to be reorganised. Whatever changes were going to be made would be driven by technological reality.

Proposals for a unified news media regulatory structure.

There are some fundamental propositions behind the Law Commission’s proposed regulatory scheme.

a) That membership of a regulator should be voluntary

b) That the regulatory body be fully independent of and separate from government and the political process

c) That incentives would encourage membership of the regulatory body

Policy Objectives

The policy objectives of the Law Commissions recommended reforms are to:

a)         To recognise an protect the special status of the news media and to ensure that all entities carrying out the legitimate functions of the 4th estate – irrespective of size or commercial status – are able to access the legal privileges and exemptions available to these publishers;

b)         To ensure that to those who are accorded news media special legal status are held accountable for exercising their powers ethically and responsibility;

c)         To provide citizens with an effective and meaningful means of redress when standards are breached; and

d)         To signal to the public which publishers they can rely upon as sources of news and information.

The Report – A Converged Standards Body

The Law Commission Report contains a total of 34 separate recommendations and are relatively detailed.  The first set of recommendations deal with a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA.  This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.

The NMSA – Eligibility for Membership

Eligibility for membership of the NMSA is based upon the broad definition of a news media organisation.  The following criteria are proposed:

a)         Significant element of their publishing activity involves the generation and/or aggregation of news, information and opinion of current value;

b)         They disseminate this information to a public audience; and

c)         Publication is regular and not occasional.  However it excludes two entities from that definition namely online content infrastructure platforms and the office of the clerk of House of Representatives.

This definition ties in with the definition of news media which contains four elements:

a)         A significant proportion of their publishing activities must involve the generation and/or aggregation of news information and opinion of current value;

b)         They disseminate this information to a public audience;

c)         Publication must be regular;

d)         The publisher must be accountable to a code of ethics and a complaints process.

The Nature of Membership

The membership of NMSA should be voluntary and not compulsory.  This is an underlying theme throughout the entire report. In this respect the Law Commission proposal differs significantly from those of Lord Justice Leveson and which are currently under consideration in England and those of the Honourable R Finkelstein QC in Australia, the legislative enactment of which has run into considerable difficulty in the Australian Federal Parliament and has been abandoned for the time being.

Once the NMSA has determined that a person is eligible for membership, membership is based upon contract with the NMSA which includes a complaints process by which members will be bound and the powers of the NMSA with members being bound to comply with the exercise of such powers.  In addition an annual financial contribution is proposed together with the obligation upon members to publicise the NMSAs code of practice or statement of principles, their complaints process and their own complaints handling process.

The NMSA – Advantages of Membership

accountability to an external standards body and membership of it would bring advantages which would be of value to those willing to be subject to its jurisdiction.  Those advantages would include:

a)         Legal exemptions and privileges – only those publishers belonging to the standards body would be eligible for the legal privileges of exemptions currently available to the news media;

b)         Complaints resolution and mediation – the standards body would provide members with a quick and effective mechanism for dealing with complaints which might otherwise end up in costly court action – this could be of particular benefit in defamation and privacy cases;

c)         Public funding only publishers who belong to the standards body would be eligible for funding support from New Zealand on air for the production of news and current affairs and other factual programming – an advantage accruing to primarily radio and television media;

d)         Brand advantage in that membership of the standards body would provide a form of quality assurance and reputational advantage and it is anticipated by the Law Commission that this would become a bench mark to determine who is to access other non-legal media privileges such as access and entry to the parliamentary press gallery, admission to press conferences, access to embargoed releases and the like.

NMSA- Statutory Recognition

Although the NMSA would not be established by a statute it would therefore be indirectly recognised in statutory provisions creating the various news media privileges.  The Law Commission emphasises that the body would be independent of both state and the media industry in its adjudication and governance structures and there should be no Government or industry involvement in appointments to the new body.

The NMSA – Some Thoughts

The constitution and structure of the NMSA is interesting because it is not a statutory body and therefore not under any parliamentary supervision.  This is entirely consistent with the importance with maintaining the independence of the 4th estate together with freedom on the press and freedom of expression rights.

There must be genuine independence of both Government and the news media industry both in relation to the adjudication of complainants and in relation to its governance and management.   Membership, it is suggested, should include a chair person who should be a retired Judge or other respected experienced and well known public figure and appointment would be by the Chief Ombudsmen, thus maintaining a separation from the political process.

The makeup of complaints panel members should be representatives of the public who are not from the media industry but with a minority having industry experience represented of both proprietors and journalists but not including current serving editors.  The need for expertise in new media and digital communications technology is recognised by the fact that one panel member at least should have that quality.

I wonder if that is enough. The reality is that news media are now technology driven. The environment of the digital paradigm is completely different from that which went before to the point of being revolutionary. The technology drives behaviour and as the technology changes, so does behaviour arising from its use. Because we are dealing with communication technologies our use of and responses to the information communicated change, not only in terms of processing but in terms of expectations of information and of those who disseminate and deliver information. What a complaints body will be facing are not merely questions of news media standards against a background of traditional media expectations but an evolving and developing news media as continuing disruptive change – a characteristic of digital communication technologies – changes the media landscape. Although ostensibly the focus of a complaints system will be upon content, underlying the content layer will be ever-evolving communications technologies. The certainty that comes with stability will not longer be present and reliance upon presumptions based upon a static communications system may no longer pertain.

The Code of Practice

One of the important initial functions of the NMSA would be to formulate a code of practice as well as adjudicate complaints about breaches of the code as well as monitoring and reporting on trends and media practice and audience satisfaction and the mediation of disputes about matters which might not otherwise proceed to court.  Importantly the constitution of the NMSA should expressly recognise that the NMSA act in accordance with the guarantee of the freedom of expression in the New Zealand Bill of Rights Act 1990.

The Code of Practice (which is referred to as a code of ethics in s 198 of the Criminal Procedure Act 2011) would set out the standards against which the conduct of the news media is to be judged and which would form the basis of complaints from the public:

a)         The content of the code should be formulated by NMSA with no government influence on its content.  The Law Commission recommendation is that the code might be formulated by an NMSA committee.

 b)         There should be consultation with the industry and with the public in the course of the formulation of the code which should capture, to the fullest extent possible, the traditional tenants of good journalism (including accuracy, correction of error, separation of fact and opinion, fairness to participants, good taste and decency, compliance with the law, the protection of privacy in the interest of children, and principles about news gathering practices) in a way which meets the demands of modern New Zealand society.

 The code should also expressly recognise the guarantee of freedom of expression in the New Zealand Bill of Rights Act as a guiding principle and strive to maintain a balance between this interest and other important interests such as privacy while making clear that the codes principles may be overridden by the public interest in publication.  There should also be guidance on what public interest actually means.  Sub codes would provide for differing public expectations of different publishing mediums and the code should be available on a website for the NMSA which should be reviewed on a regular basis.

Powers of the NMSA

The scope of the jurisdiction of the NMSA would be to enforce standards across all types of news publishers, irrespective of the format or distribution channel.  It would adjudicate complaints relating to news, current affairs, news commentary and contents such as documentaries and factual programming which purports to provide the public with a factual account of real events involving real people.  Membership would be voluntary but it is considered that the privileges and benefits that would attach to membership would counter balance any initial reluctance to become involved with the NMSA.

However the Law Commission recommends that the new body would have a wider range of powers than presently exist in the press council, the Broadcasting Standards Authority or the Advertising Standards Authority.  These powers would include:

a)         A requirement – as at present – to publish an adverse decision in the medium concerned, the regulator having power to direct the prominence and positioning of the publication;

b)         A requirement to take down specified material from the website;

c)         A requirement that incorrect material be corrected;

d)         A requirement that a right of reply be granted to a person;

e)         A requirement to publish an apology and

f)          A censure.  No monetary sanctions by way of fines or compensation are proposed.

NMSA Powers and Technological Reality

Perhaps the most striking new power is the requirement to take down specified material from the website.  This would not only apply to current mainstream media who may sign up to the NMSA but would also include citizen journalists and new media entities who have also joined and are subject to the NMSA.  There are two possible concerns to the concept of take down.  One is that it has a certain Orwellian ring to it in that the material exists on the internet or the website only for as long as it is available to internauts.  Once it is taken down it is as if it had never existed and perhaps this represents a certain ephemeral aspect of information on the internet and the well known difficulty of locating information where there has been the phenomenon of “link rot” or for whatever reason the website host no longer makes the material available.  In a situation involving an NMSA directive the website host would have no choice.

The second difficulty lies in the contradictory adage of information on the internet being “the document that does not die”.  Once information is available on the internet it has a tendency to replicate, become part of a Google cache or be available if not in whole than in part on a Google search.  In addition library archives and other forms of preservation of internet based material such as the internet archive mean that the information may still be available although not directly at the web address at which it was first published.  A dedicated researcher would probably be able to find information even although it had been the subject of take down directive from the NMSA.

A possible third scenario presents where, a disgruntled citizen journalist who has been directed to take down material from a website could leave a page at the web address containing information to the effect that the content that had previously been present at that address had been the subject of a takedown directive from the NMSA and could well contain complaints about censorship or some commentary on the wisdom or otherwise of the decision.  Although this could attract further attention from the NMSA it would be consistent with some behaviours present in citizen journalists blogs and websites.

Managing the Transition to the New Model

As part of the transition process it is proposed that an establishment working party should be set up, chaired by an eminent independent person nominated by the Chief Ombudsmen.  The balance of the working party should be appointed by the chair after consultation with the news media industry and representatives of that industry should be in a minority.  The working party should not exceed 7 members.  The proposal is that the working party should consult widely including with the BSA, the Press Council and OMSA and the working party effectively should attend to an initial implementation of the recommendations including:

a)         Drawing up a constitution of the NMSA both for management and adjudication functions;

b)         Laying down the manner of in criteria for the appointment of panel members of the NMSA and ensuring that the Chief Ombudsmen has an involvement in that process;

c)         Appointing the foundation panel members of the NMSA including foundation members of the complaints panel and appeals panel;

d)         Drawing up a mechanism for industry funding of the NMSA;

e)         Drawing up model forms of contract to be entered into between the NMSA and members of the news media electing to belong to it; and

f)          Advising if necessary on the initial funding contract with the Government to support the NMSAs oversight and monitoring functions.

How this is an example of technology driven rule making.

Introductory

The functional construction of the Internet involves six layers which offer regulatory activity of one form or another.

The Content Layer—the symbols and images that are communicated.

The Application Layer—the programs that use the Internet, e.g. the Web.

The Transport Layer—TCP, which breaks the data into packets.

The Internet Protocol Layer—IP, handles the flow of data over the network.

The Link Layer—the interface between users’ computers and the physical layer.

The Physical Layer—the copper wire, optical cable, wireless devices, routers, etc.

The first thing that should be noted is that what is proposed by the Law Commission is a form of regulation of the content layer of the news media. It is always this layer that attracts the most attention and is, and throughout history has been, the first target of regulation in whatever form it takes – whether it be to enhance the credibility of news media (as this would seem to be) or to engage in censorship.

In some respects the Law Commission embraces both but not in equal measure. Primarily the approach is to ensure that the 4th Estate acts in a responsible manner, and that the doors of 4th Estate advantages and privileges are open to “new media” – the citizen journalists whilst at the same time recognising that membership of the 4th Estate carries with it certain responsibilities – hence the NMSA. But on the other hand the censorship model is present in the suggestion that “take down” orders may be made in respect of on-line content.

In  addition to the content layer of the Internet there are a number of other deeper issues associated with technological change that have brought matters to a head. These may be described as the qualities or “properties” that enable or impact upon human behaviour – generally in ways that we don’t immediately perceive. I have referred to these qualities in other posts and repeat them here for completeness whilst  acknowledging that the development and identification of the qualities of new communications technologies is a work in progress. So far I have managed to identify nine qualities (and there are probably more) which dramatically distinguish digital technologies from those that have gone before and they are

    •  Persistence,
    • Continuing change or what you could refer to as the disruptive element,
    • Dynamic information
    • Dissociative enablement,
    • Permissionless innovation,
    • Availability,
    • Participation
    • Searchability
    • Retrievability.

The effect of this is that our consciousness of the changes that might have taken place in our behaviour or, in the case of information technologies, the way that we communicate, process and deal with information is delayed until the changes have become virtually irrevocable. These changes can impact at the individual level or, collectively, have an impact upon societal institutions. For example, the use of e-mail, Facebook or Skype as a means of communicating with family and friends has the following consequences that immediately spring to mind:

a) the decline of “hard copy” letter writing

b) the rise of informality in written communication

c) the questionable future of a “written documentary record” as a primary source for historians

d) the decline in physical mail items with impacts upon postal services profitability and viability resulting in reduced delivery days and increased cost driven inefficiencies in hard copy mail delivery “services”.

I acknowledge that this is just a brief sketch to illustrate a single issue, and should not be considered a developed argument.

A “Qualities-Based”  Approach to Rule-Making 

Thus the starting point of this discussion is based uopon the premise that new communications technologies contain certain properties which have an impact upon the way in which we react and assess the information that is communicated. Although information may of itself be static, the way in which it may be presented by a particular communications technology affects the way in which we deal with and react to it and may colour our expectations of information

New information technology paradigms subtly influence our perceptions of information, our intellectual approach to information and our use of information. The properties apparent in one paradigm may not be present in another.

A problem arises where we have become inured to the properties of one paradigm and consider that they apply mutatis mutandis to another without recognising that paradigmatic change introduces concepts that are so utterly different from a former paradigm that our responses, reactions to and assumptions about information are invalid.

This is particularly so when it comes to consider regulatory structures and policies which may be applicable to developments that occurred under one paradigm and that may not comfortably translate to a new one

It is suggested that it is necessary to examine the qualities of different information technologies to ascertain whether or not continuing assumptions about the nature of information and its communication are still valid, or whether they must be revisited in the light of the new technology which may have significantly different properties from the old.

It is my contention that when we examine the properties of information communication technologies, such as the printing press, alongside new digital technologies including computer-based and internet accessible information, it becomes necessary to re-evaluate our responses to and our assumptions of information that is available within the digital paradigm.

We should be careful to ensure that our policies are not based on assumptions deriving from the “old technology”. A different set of assumptions based upon information derived from the digital paradigm must be developed that recognise and reflect its properties. A tension necessarily arises between our print paradigm expectations and those that are apparent within the digital paradigm. Yet there remains a path where the core values that have developed within the print paradigm may still be reconciled with information derived from the digital paradigm.

Marshall McLuhan made (among many) two observations pertinent to this discussion. When he said “the medium is the message” – a somewhat obscure remark – he was emphasising that when we deal with communications technologies the content that is delivered is secondary and the way in which the message is delivered is important. He emphasised this rather crudely when he said that the “content” of a medium was a juicy piece of meat carried by the burglar to distract the watchdog of the mind.

This means that people tend to focus on the obvious, which is the content, but in the process, we largely miss the structural changes in our affairs that are introduced subtly, or over long periods of time.

As society’s values, norms and ways of doing things change because of the technology, it is then we realize the social implications of the medium. These range from cultural or religious issues and historical precedents, through interplay with existing conditions, to the secondary or tertiary effects in a cascade of interactions of which we may be unaware. This is reflected in the second comment that McLuhan made – We shape our tools and thereafter our tools shape us. In this case the tools are new communications technologies and they have been and still are changing our behaviours and our expectations of what technology can do – especially in the communication of information.

What the technology has done is that it has dramatically changed many of our previously conceived ideas and understandings of information. Our responses illustrate this. The Minister’s remarks when he made his reference to the Commission provide an example. Putting to one side the emotive references to “the Wild West” which are anachronistic and inaccurate, the subtext of the Minister’s comments amount to the following:

a)      People are doing things with information and information systems that they were unable to do before (or could do, but with difficulty)

b)      Some of these actions challenge the rules and the framework of rules that have been set up to regulate information delivery systems

c)      There must be some way by which the actions which challenge the rules are brought within the existing rule structure or framework

Another way of interpreting proposition (c) is to ask how we can put the future within the constraints of the past. In many respects we find that the behaviour of individuals can be addressed within existing rules. The cases of R v Garrett and Police v Slater are examples.

This position becomes more complex when the focus shifts to what may be termed “institutions” such as the news media. The history of press, radio and television are continuing stories of State involvement with the media to one extent or another, be it at the level of content licensing following the statute of 1662 (print), state ownership and control of radio broadcasting as was the situation up until the early 1970’s or television channel licensing as is the case today. In addition there are the regulatory structures of the Press Council and the Broadcasting Standards Authority.

What must be remembered is that as these new technologies came on stream the State was very swift to attempt to assert some sort of control over their operation and output. In New Zealand it would be cynical to suggest that there is a political motive for this, although the curious situation where the Labour Party, which then favoured state control, supported the passage of the News Media Ownership Bill which would have released the stranglehold of newspaper ownership then present in New Zealand and which Labour perceived was right-wing, gives some support to the suggestion that within the political sub-conscious there is a media control agenda.

Of course, various levels and intensity of control are possible with monolithic, centralised  and capital hungry organisations. In the pre-digital paradigm the costs of setting up a newspaper, radio or TV channel were and still are very high, even without regulatory approval.

The digital paradigm challenges that model. It enables everyone to become a publisher. It is not unexpected that news media should rise to the challenge and we find ourselves in a situation where there is a convergence between broadcast and print media in print media websites, and the use by broadcast media of the various communications protocols enabled by the Internet to provide live streaming of content and content on-demand.

But we must remember that the regulatory structures that have been put in place were all pre-digital and with the monolithic model in mind. And furthermore we must remember that the digital revolution (so called) is in fact evolutionary in effect. It may well be that the on-line convergence models utilised by Mainstream Media (MSM) will not be around in 10 years time – and one need only look at the development of Social Media to understand the difference that internet may prompt in terms of behavioural norms and values. It may well be, for example, that MSM will fulfil a different news provision facility, focussing entirely upon factual information and stepping away from opinion and analysis, leaving that present function of MSM to citizen journalists – some of whom may be endorsed or who may write op-ed pieces on a free lance basis although it is acknowledged that this happens now. A possible future is the fragmentation of MSM into a defined and specialist role – again enabled by the new technologies and possible future protocols that may ride on the backbone of the Internet – although I imagine that it would require a culture shift for some journals to break free of a “tabloid” model and return to a more “intelligent” one.

The question that must be asked over and above the issue of the nature of content regulation – and it must be acknowledged that the Law Commission proposals operate at that level – is whether the model of content regulation is appropriate for the new technology. I consider this to be a valid issue. The model  of control of “acceptable” content be it heresy, treason or pornography has not changed significantly since the Constitutions of Oxford 1407 which were designed to address the Lollard heresy.  The model is labour intensive and has struggled to deal with increasing volumes of content made possible by technology. It was originally designed to censor manuscript materials. It struggled with the volume generated by print. Perhaps societal changes and attitudes about indecent content have liberalised to the extent that a very limited definition of “objectionable” reduces the volume, but, having said that every film needs to be viewed and classified and the censors struggle under the volume of content that is contained in video games.

There are associated issues with the question. If we wish to maintain a content control model or a model that responds to content issues do we wish to maintain a variation of the existing model or should we consider adopting a new one. The current proposals suggest the former and, with the greatest respect, this seems to be a rear-view mirror approach to an upcoming and continuing problem. Rather than make behaviours driven by a new technology an uncomfortable fit with a model from a different paradigm, might it not be preferable to address the new paradigm and design a model that recognises it. This, of course, assumes that there is a justification for regulation in the first place. In this respect one looks at existing law and remedies. It is acknowledged that current legal structures and processes make access to legal remedies and procedures difficult for the majority of the citizenry  – and are certainly not assisted by recent restrictions and cutbacks in legal aid. If the new paradigm continues or increases the occurrence of litigable behaviour then a new model needs to be developed to meet that. In this respect the suggestion of a new Tribunal answers such a need.

This then leaves the issue of the special treatment accorded to MSM and I wonder if the time has come, with the increased opportunities for “citizen journalism” to dispense with special treatment for MSM and make what have been privileges for MSM open to all. I immediately acknowledge that this may sound somewhat “Jeffersonian”, overly democratic or introducing an element of chaos into an otherwise reasonably ordered and moderately predictable environment.

On the other hand in a world where everyone may be a publisher, a possible future is that MSM, at least as we recognise it now, may wither and either pass into history like the scribes in the monasteries or transform into some other form of information dissemination model.

Whilst acknowledging that the suggestion of making MSM privileges open to all is radical it must be remembered that the new paradigm with the various protocols that underlie Twitter, Instant Messaging, SMS and the various other models that will appear (and further change WILL come) radically alter our attitudes, approach to and expectations of information.

Edward Kennedy adapted the words of the Serpent in Shaw’s Back to Methuselah as an epitaph for his brother Robert F Kennedy “Some men see things as they are and say why? I dream things that never were and say why not?” In today’s age of democratisation, continued questioning and challenging of established systems and within an environment of dramatic innovation, New Media adherents may well ask “Why not?” For MSM to have any credibility and respect they will need to have an answer. To say “it has always been this way” simply does not cut it in the digital paradigm because the opportunities that the paradigm offers means that it doesn’t have to be “this way”. 

The Technological Drivers

The enabling powers of the new information technologies have resulted in two major shifts. The first  is the democratisation of content production and the rise of the citizen journalist. New technologies remove the need for physical resources such as volumes of paper upon which to print the message. Disseminative qualities remove the need for a physical distribution network. Internet communicative technologies enable “citizen journalists” to publicise their work. Blog sites enable a form of simple publication with appropriate indexing systems. Search engines assist a readership to find the content sought. Thus, instead of the “one to many” static model of MSM the “citizen journalist” has available a “two-way flow” of content dissemination and notification.

The initial concern of Minister Power was to apply regulatory structures to bloggers. The Law Commission response was more measured, suggesting an opt-in model for “citizen journalists” giving them an opportunity to avail themselves of current advantages enjoyed by the news media. But there can be no doubt that the new technologies available have been the enablers of “citizen journalists” and the presence of “citizen journalists” and the content that they impart has raised the issue of the necessity for and scope of any regulatory structure to govern their activity.

The second enabling qualities of new information technologies has resulted in content convergence which has made the old regulatory structures inoperable or redundant. The Law Commission has proceeded from a starting point not of whether or not in the digital paradigm we need news media regulation. That appears to be a given although the raison d’etre has been repackaged as the incentivised model suggested. In a sense new technologies have changed nothing but have changed everything. One reality is that convergence has presented an opportunity to revisit the whole issue of news media regulation and accountability. The other is that its has been technology that has forced the reconsideration.

It will be interesting to see what happens next, for we have travelled only part of the road.

Note:

The Mosaic Approach to Theory Development or Exemplfication.

In his book “Furies: War in Europe 1450 – 1700” historian Lauro Martines  uses a collection of incidents and mini-tales to illustrate and develop a pattern of the nature of war in Europe during his period, and to develop the common themes that make up this study. He considered that the nature of the subject was so complex and the wars that raged throughout Europe were so diverse, employing new technologies as they became available, that the story could only be told by way of a mosaic rather then what could be considered a “linear” study.

In some respects a study of the way in which new communications technologies and protocols impacts upon law, and the use of law as a means of regulating new communications technology in a paradigm of continuous disruptive changes defies a linear approach and favours a mosaic one. Yet, by the same token, story-telling or developing evidence to support an hypothesis is not unknown in the law. Far from it – it is employed in every evidence based trial for, try as they might, it is almost impossible for lawyers to present a  strictly linear narrative in presenting evidence by way of witnesses unless they recall the witnesses from time to time to address a particular evidential issue. This was employed in the case of R v McDonald and is the exception rather than the rule. But in most cases it is for the lawyers to construct a coherent narrative from the evidence for the benefit of the jury or the fact finder and, in the context of the criminal jury trial, for the Judge to locate that narrative within the fabric of the law and thereby direct the jury accordingly.

I have suggested that a study of the impact of new communications upon the law and the development of legal rules favours this mosaic or “jigsaw” approach. One reason is that the field is one of constant flux where the evidential certainties often change. What an historical reality may justify one day may prove to be overtaken by subsequent events. Yet at the same time these pieces from a recent past may at least illustrate if not a theme at least a part of one, and when located within a wider framework may assist us in reaching some conclusions even although they may he in the nature of informed generalisations or partially supported hypotheses.

i have already written in this field and provided some examples of show technological change in the field of communications technologies impacts upon behaviour and values and challenges existing legal rules. At the same time changes and developments in ICT may drive legal change, although in some respects the changes that are made rather preserve a rule developed in an  earlier paradigm rather than recognise the qualities of the new one, and the behavioural changes that it has boroughs or will bring about. In time I hope to assemble enough pieces of  the mosaic or puzzle to develop a universal theory about the impact of communications technologies on the development of rules. I have no illusion that this will be a formidable task, but every journey starts with one step. I have already taken one or two. This piece represents another.

The Googling Juror – Update

It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.

To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.

A helpful overview is a piece entitled “The Wired Juror Unplugged” by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.

” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”

The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.

Marcy Zora has written a piece in the University of Illinois Law Review entitled “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights” (2012) U Ill L.Rev 577. The article advocates a “consequences” approach for juror research rather than preventative efforts. The abstract states:

” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”

Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:

“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”

Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.

Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.

In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.

The importance of juror engagement in the trial process and steps that have been taken in Michigan to enable this are the subject of an editorial by Linda Mah in MLive for 17 September 2012 entitled “Courts’ Efforts emphasize the right and responsibilities of jury duty.” 

The editorial notes:

The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….

In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.

The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.

The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the  Conference of Court Public Information Officers (CCPIO) . The article notes:

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.

The whole issue of juror misconduct and how to deal with it has exercised the minds of judges in England. In November a protocol was issued by the President of the Queens Bench Division dealing with jury irregularities in general.

A “jury irregularity” is defined as:

“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”

The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.

The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”, Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.

Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.

One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.

As a new generation arrives with different expectations for conversations and interactions, courts now  face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools?
What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.

Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:

These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square 
to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.

The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.

At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.

There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can.
Don’t wait. The world has already changed.

Finally an article in the Guardian entitled “Juries and Internet Research: We Need to Ask More Questions” (9 November 2011) refers to a valuable piece of research by Paula Hannaford-Agor, David B. Rottman and Nicole L. Waters entitled “Juror and Jury Use of New Media: A Baseline Exploration” published by the National Center for State Courts.

The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.

They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.

8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.

The report came hot on the heels of the case of Stephen Pardon who was jailed for four months for contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.

The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.

The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.

There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.

Lawyers, Judges and the “New” Media

Lawyers, Judges and the “New” Media

Introduction

It occurred to me as I was writing the post about Judges and the Social Media that we have actually been down this track before – where lawyers and Judges have seized upon the new media and used it to publish and propogate their views about the law. The first information technology was the printing press, and lawyers and Judges began to use or influence the use of the new technology in the sixteenth and early seventeenth centuries. In this post I want to discuss the use of the printing press by sixteenth and early seventeenth century Judges and lawyers and consider the reasons why they chose to go into print. I have written a much more comprehensive study of the printing press as an agent of change in law and legal culture in the period 1475 – 1642 but the examples I have selected are John Rastell and Anthony Fitzherbert, Edmund Plowden and Sir Edward Coke.

John Rastell and Anthony Fitzherbert

John Rastell (c1475 – 1536) studied law at Middle Temple where he was an untter barrister by 1502. He moved from London to Coventry but returned with his family in 1508 where he ran a successful legal practice for over 20 years.

From about 1509 he also seems to have begun to print and publish: initially where he was dwelling ‘at the Fleet Bridge at the Abbot of Winchcombe’s Place’, then by 1515 near St Paul’s (where his premises comprised a room for the press, a shop, and living quarters), and eventually from Michaelmas 1519 at Paul’s Gate, Cheapside. Rastell’s shop sign was a mermaid; one of his two printing devices included a merman and mermaid.

He printed a compilation of the statutes of Edward V and Richard III and concentrated on producing law books, and over the years came increasingly to edit or write the books his press produced. Over his career his publication list came to comprise over fifty titles (a few he re-edited, some reprinted), including, in 800 folio leaves, the ambitious La graunde abridgement de la ley (1514–16) by Anthony Fitzherbert.

Rastell’s Prologus to the work states:

And though that I myself of small learning and discretion have enterprised with the help of divers other gentlemen, and taken labors and also intend more labors to take, as well for the ordering of the calendars of said great book of abridgements as in the numbering of the quotations and refennents of the cases therein, yet the only praise of the making of the said great abridgement ought to be given to Anthony Fitzherbert, serjeant at law, which by his great and long study of many years continuing hath compiled and gathered the same

Anthony Fitzherbert, one of the best known legal writers of the early sixteenth century was a senior lawyer having attained the rank of Serjeant at Law in 1510, a Kings Serjeant in 1516 and in 1522 became a Judge of the Bench of Common Pleas. He too saw the advantages and benefits of the new technology and was one of the earliest lawyers to have his own work put in print in his lifetime.[1]

La graunde abridgement, was an enormous enterprise for its day, a massive digest of 13,845 cases from the year-books arranged under alphabetical headings.  A smaller but more original work was Fitzherbert’s La novel natura brevium which was published towards the end of his life in 1534. It was inspired by the so-called ‘old Natura brevium’ (the name given to two or more different medieval treatises, or lecture courses, on writs) but Fitzherbert’s was a new treatment and much more detailed, with references both to recent cases and to the abridgement. It remained the principal reference work on writs until the abolition of the forms of action in the nineteenth century. The original French text (with the forms of writs in Latin) was reprinted eleven times, the last edition appearing in 1635.

A third book, which appeared in the year of Fitzherbert’s death, was The New Boke of Justices of the Peas (1538), which appeared in both law French and English editions bearing the same date but differing slightly in content and arrangement. The adjective ‘new’ again paid due respect to an earlier work, this time the anonymous late medieval Boke of Justices of Peas which was printed about 1506, but Fitzherbert’s treatment was characteristically more thorough and detailed. These two ‘books of justices’ are hailed as the first printed treatises on English criminal law, and Fitzherbert’s remained in use until it was overtaken by Michael Dalton and Sir Edward Coke in the seventeenth century. There were eight reprints between 1540 and 1566, and an enlarged edition by Richard Crompton in law French (1583) which was itself reprinted five times.

Rastell printed the first volume of the Graunde Abridgement, his small press being utilized for humanistic texts of his brother-in-law Thomas More’s circle.

Elements of humanist thought underpinned important objectives for printing the law. One was the educational objective of making the law more easily accessible by printing it in English. The print properties of standardisation and dissemination were both recognised and perceived as assisting in the fulfilment of humanist educational goals. The other element was the deeper societal issue of the concept of the “common weal” or the common good. This theme is one that pervades the discussion about access to law and was one of the main societal imperatives of the time. The “common weal” was a concept that operated on a number of different levels having primarily political but also social implications. In all its various manifestations the “common weal” was perhaps the most significant underpinning for access to law, developing from humanist precepts until it took on a life of its own

The law was the basis for a functioning society for the good of all rather than for the wealth, power or honours associated with the Church, feudal ties or established power elites although even the humanists did not see this as a universal concept, in that generally the law favoured the propertied classes rather than the entire community. The importance of the law and the legal process as a part of the ordered State, promoting the values of  harmony and unity was recognised and thus the study of the law was part and parcel of the humanist curriculum. The publication of law was a part of the wider educational process and another aspect of the informed order advocated by the humanists. Printed law books were less dangerous than the printed Bibles and religious tracts that were present on the Continent and were being imported into England. Ross points out that there was little threat arising from dissident translations of the statutes or “non-conformist” Year Books or treatises. Yet printed law books made dissent more formidable. They made legal resources available to those who wished to mount legal challenges to the establishment.

Print became a facilitator in the educational process. The humanists wished to extend their audiences and their influence. The English followers of Italian and Northern European humanists had a respect for the power of the press to spread standardised classical texts which were the basis for the study of philosophy and rhetoric. Henry VIII, whose Court included a number of prominent humanists, used print propaganda to generate support for the “Kings Great Matter” and the break with Rome, although the humanist message remained the same. Rastell was advocating printed legal information in English in the 1520’s before the onset of the Tudor Revolution.

The language in which the law was expressed was also addressed. Humanist support for a law press and a preference for English or Latin over the arcane law French as a means of expression of the law were additional elements of what we would describe as “access to law.”[2] In this way the audience who could read and clearly understand the law as well would be extended – if legal works were printed in English – in addition to a general desire to widen the audience for books in general. As the interest in a law press grew so did the call, in print, for a broader diffusion of legal knowledge among lay people. Rastell claimed that law  “kept secretly in the knowledge of a few persons and from the knowledge of the great multitude may rather be called a trap and a net to bring the people to vexation and trouble rather than a good order to bring them to peace and quietnesse.”[3]

Rastell’s position was expressed by others. The force or quality of statute law may have depended upon whether or not it was printed and therefore public, or not printed and therefore private. Justice James Dyer stated that if the latter “a man shall not be compelled to take consuance of this so easily as if it was in print.”[4]

This reflects Thomist legal thought which held that to obtain full status law had to be promulgated. In England promulgation was carried out by the sheriffs or by direct communication with the judges. Some legislation provided for its own promulgation.[5] However, did failure to promulgate invalidate law? Doe is of the view that such a proposition is doubtful although it was clearly preferable.[6] However, the press, although embraced for its various qualities, was also viewed with some suspicion particularly by religious elites who were contending with the dissemination of printed disputative literature which challenged long-held tenets of the faith. In answer the humanist law book publishers advanced three main reasons for the printing of the law.

The first two reasons involve what today would be referred to as “access to law” issues. First, being able to read and understand the law had a benefit in making the subject aware of the requirements for peaceful, responsible and virtuous living. The subject received a benefit and, in addition, such an understanding was in the interests of the “common weal.”

Secondly was the suggestion that greater availability of legal information would serve to loosen the stranglehold upon the law held by the legal profession. Law books would not replace lawyers but would allow the citizen to inform himself of the law as it affected his daily life, but when there was doubt or litigation the good subject should

“Resort to some man, that is learned in the laws of this realm, to have his counsel in such points, which he thinks doubtful concerning those said statutes, by the knowledge whereof, and by the diligent observing of the same, he may the better do his duty to his prince and sovereign, and also live in tranquillity and peace with his neighbour, according to the pleasure and commandment of almighty God”[7]

Law books were also of benefit to the legal profession in that they served an educative function. Thus, both lawyer and citizen would benefit by increased availability of printed legal information, and for the citizen the press uncovered that which had previously been unknown.

The third reason was that law preserved order and was the antithesis of chaos. This was a message that resonated in an England for whom the memory of the Wars of the Roses was still fresh. Chaos could be kept at bay by law. Promulgation and dissemination which were part and parcel of the operation of law could be reinforced by law publishing thus strengthening and enhancing order.

There can be no doubt that the early involvement of humanists in law book publishing had a profound effect not only upon the way in which law books were presented but also upon the way in which law books were viewed by the community. It was probably fortuitous that the Rastells were early pioneers of law publishing and although their output was not great their influence extended over a fifty year period.[8] They not only set the benchmark for the publication of useful law books but provided an example for others, as well as having a continuing influence even from exile. John Rastell’s son, William, a lawyer like his father and later a Judge, continued the family involvement in law printing although after the reign of Mary he did so from a distance. As a Catholic he left England after the accession of Elizabeth but his law publications continued to be printed by Richard Tottel.

Rastell’s association with the humanists of More’s circle, together with his expressed views about the availability of legal information and its expression in English gives us a clear indication of his motives for using the new technology of print. Not only was he a lawyer and an editor of law texts but he was actually a printer which demonstrates a real commitment to the new information technology.

The benefits and the advantages that the new technology presented in the dissemination of legal information for the orderly society and for the common weal are continued today in current access to law and legal information projects such as Austlii and the growth of serious legal information blawgs containing commentaries and explanations of the law. The beat goes on.[9]

Edmund Plowden

Edmund Plowden (c. 1518 – 1585) began his legal studies in 1538 at Middle Temple (one of the Inns of Court) tradition having it that he was so studious that he did not leave the inn once during the space of three years. He began recording cases he heard in court from at least 1550. In 1571 Plowden published Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley  a volume of law reports that decisively broke out of the older year-book tradition, and was the first to be published by the author in his own lifetime and under his own name. The keys to Plowden’s approach were two resolutions he claims to have made at the beginning of his law studies. The first was:

[to] be present at, and to give diligent attention to, the debates and questions of law, and particularly to the arguments of those who were men of the greatest note and reputation for learning.[10]

The second was,

to commit to writing what I heard, and the judgment thereupon, which seemed to me to be much better than to rely on treacherous memory.[11]

But why did he put the Commentaries into print? Although law printing had been active in London for ninety years – the first law text was printed in 1481 – there was nevertheless a culture of information sharing of handwritten notebooks or casebooks among coteries of lawyers in the Inns of Court.

Lawyers saw the noting and gathering of cases as a matter for their own benefit and information. Theirs was a specialised profession with its own practices, rituals, hierarchy and indeed language.[12] There was little commercial gain to be had from printing large numbers of varying case reports of some antiquity and which may not find a market, especially if lawyers preferred to compile their own notes and share them with their colleagues. Thus it could be argued that at this time lawyers looked to themselves for their legal information and those in the commercial world, sensing that there was not a market, discontinued large scale printing of the manuscript Year Books.  This was a challenge to the new technology and indicates that putting legal material in print, and particularly contemporary legal material, was not a universal objective. Not only did the printers make a choice about the materials that they would print, but the lawyers themselves made a choice about whether their materials would be widely disseminated or restricted to the coterie.[13] The dissemination of written legal information was not the exclusive province of print.

Not only legal information was distributed in this way. Among the coteries that shared material were the Tudor poets who preferred not to see their work in print. The lawyer John Selden made the comment “ ’tis ridiculous for a Lord to print verses, ’tis well enough to make ’em to please himself, but to make them public is foolish.”[14] Why was it that Edmund Plowden decided to move from the usual way of information sharing and move into the (relatively) new medium of print. He provides his own explanation.

“I thought it my duty to decline making public my own vindication of the arguments of men more learned than myself, and to keep the work for my own private advantage and therefore avoid the censure of affecting a more acute and discerning judgement than I really had. But by and by an accident happened, which inclined me and (As I may say) forcibly compelled me  to make this work public. For having lent my said book to a very few of my intimate friends, at their special instance and request, and but for a short time, their clerks and others, knowing thereof, got the book into their hands, and made such expedition by writing day and night, and in a short time they had transcribed a great number of cases, and especially of the first, contrary to my own knowledge and intent, or of those to whom I had lent the books; which copies at last came to the hands of some of the printers, who intended (as I was informed) top make a profit of them by publishing them. But the cases being transcribed by clerks and other ignorant persons who did not perfectly understand the matter, the copies were very corrupt, for in some places a whole line was omitted, and in others one word was put for another, which entirely changed the sense, and again in other places spaces were left where the writers did not understand the words, and divers other errors and defects there were, which, if the copy so taken had been printed, would have greatly defaced the work and been a discredit to me. And besides this, they had omitted to transcribe the pleadings according to the records, and had only transcribed the cases and arguments upon them, so that the benefit, which the reader would have reaped from the records of the pleadings in this book (which is also a Book of Entries of all others most gifted and tried) would have been totally lost. Wherefore, in order to prevent and avoid these defects, I considered with myself whether it was not better for me to put this work in print. During which consideration letters were sent to me by all the iustice of both benches and by the Barons of the Exchequer, requesting and encouraging me to make it public and at last, upon these and other motives, and hoping that it might be of some benefit to the students of law, I resolved (as you see I have done) to put it in print.”

Plowden’s attitude towards the concept of authorship is unusual.  There can be no doubt that had the work been printed without his supervision or authority, his name would have been associated with it.  Plowden was very careful to ensure that the quality and integrity of his work would be maintained and, for that purpose, it would be necessary for him to supervise its publication.  Plowden was one of the rare examples where the name of the author was at least as important for the sale of the work as the quality of the content and, certainly, any printed publication with the name of Plowden associated with it would find a ready market within the legal profession.

Earlier reports were little more than summaries of special points in the argument and more often than not completely omitted the decision and the reasons for it. The Year Books especially were seen as pleading guides rather than providing an accurate report on the substantive issue before the Court. The decision in the matter was not important to the reporters. The changes in pleading practice, including the shift to written pleadings resulted in a corresponding shift in the way in which cases were presented and argued in Court. The issue became the effect of the pleadings rather than the nature of the issues and form that they should take. Whereas the cases reported in the Year Books comprised the dialogue between counsel and the Bench that had as its objective the formulation of the issue before the Court, the written pleadings defined the issue. What became of interest to the reporter was the argument on that issue and the outcome on that issue that was settled by the Court. Thus written pleadings became a necessary part of the report. The dialogue on the pleadings became insignificant and the decision of the Court assumed more significance.

Plowden’s reports were limited to those cases where a point of law needed to be decided. Unlike the Year Books each case was identifiable by name. At the beginning there was a full heading including the name of the parties, the date of the argument, the Court concerned and the term in which the proceedings were commenced. The body of the report contained the official record of the pleadings, a full note of the arguments of counsel and the Judges and the substance of the final judgments. In this way all the necessary information regarding the decision was contained in one place. This method was a significant and influential innovation and set a new benchmark for printed reports presented in a similar style.

So successful were Plowden’s reports that they were the subject of a number of re-printings and were themselves the subject of an abridgment by Thomas Ashe in 1597 and 1607 which was later translated into English by Fabian Hicks and published in 1650.[15] Plowden’s style influenced those who followed including Coke who praised the Commentaries as “exquisite and elaborate.”[16]

The praise accorded to Plowden by Coke is not merely an example of post publication validation of a text. It demonstrates the complex interactions that surrounded the acceptance of printed works. The new medium presented a challenge to Plowden in terms of the potential that it presented for loss of control of the content and a possible damage to his reputation. It does not seem from the available evidence that Plowden had any other reason to print apart from the urging of friends and to preserve the work from an opportunistic printer. Once the work was printed under his supervision, Plowden’s objective was complete. Yet his name associated with the printed work was almost as important as the fact of printing.[17] And the way in which others recommended his text demonstrates that printing of itself did nothing special other than make the work more readily available. It is the interaction with and by others involved in some way with the work that enhanced its presence in print. Although it could be argued that a similar sort of interaction could take place with manuscript,[18] the properties of the new technology meant that interactions with others relied upon as well as enhanced those properties. Print fixed Plowden’s work – his copy was standardised and, importantly, it was available. The interactions  of others ensured that advantage was taken of those qualities.

And so it is today. But the big difference is that Web 2.0 allows for a greater level of interation, comment and engagement. Feedback, which in Plowden’s day would have been by letter of by personal contact, is wider and more extensive and not limited to a select coterie. But once again, the theme behind the particular song remains the same.

Sir Edward Coke

Sir Edward Coke (1552 – 1634) was one of the most influential and controversial judicial figures of the early seventeenth century. He started his legal studies in 1571 and at some point during his student days he began keeping a commonplace book; in 1579, possibly in connection with his taking up a readership at Lyon’s Inn, Coke began keeping detailed records of cases. He was called to the bar in 1578 and went on to become one of the most prominent lawyers in England. He became Attorney-General, prosecuted Sir Walter Ralegh  and was also involved with the interrogation of those involved in the Powder Treason and was one of those who prosecuted Guy Fawkes, describing in lurid detail the traitor’s death of hanging, drawing and quartering.

Coke was appointed Chief  Justice of the Court of Common Pleas on 30 June 1606, being created serjeant-at-law for the occasion, and Chief Justice of the King’s Bench on 25 October 1613. His tenure in these courts proved turbulent, being marked by friction with James  I

But by this time Coke had been publishing his Reports, first in manuscript and later in print. His first well-known work was a manuscript report of Shelley’s case, circulated soon after the decision in 1581. This was in keeping with the circulation of manuscript notes kept by lawyers and which I have already discussed.

In 1600, afraid that unauthorized versions of his case reports might be printed—and probably following the example of Edmund Plowden, with whom he had worked and whom he revered—Coke issued the First Part of his Reports. By 1615 he had put out eleven volumes, making available more than 467 cases, carried the imprimatur and the authority of the Lord Chief Justice. These case reports provided a critical mass of material for the rapidly developing modern common law. Reversing medieval jurisprudence, which had often relied on general learning and reason, Coke preferred to amass precedents. Coke’s view was ‘The reporting of particular cases or examples is the most perspicuous course of teaching the right rule and reason of the law’.[19]

Was Coke, like Plowden, a reluctant user of the new technology. His attitude to seeing his work in print was initially one of reluctance but from 1600 when the first volume of the Reports was printed through until the end of his life this attitude changed to the point where he became an enthusiastic adherent of printing the law. The changing political climate and Sir Edward’s progress from Attorney General, which was the position that he occupied when the first volume of the Reports were printed, through his position as a Judge, his fall and his subsequent career in politics provides an explanation for this shift in attitude. As noted there was circulation of manuscript copies of Coke’s case notes amongst select members of the legal fraternity and, like Plowden, Coke arranged for the printing of the first volume,[20] fearful that unauthorised versions may find their way into print. He was mindful of his reputation and of the value that would be attached to Reports coming out under his name.

“I have sithence the xxii yeere of her Maiesties Raigne, which is not xx yeeres compleat, observed the true reasons as neere as I could, of such matters in Law (wherein I was of Councell & acquainted with the estate of the Question) as have bin adjudged upon greate & mature deliberation; And as I never meant (as many have found) to keepe them so secret for mine own private use, as to deny the request of any of my friend to have either view mor copy of any of them; So til of late I never could be perswaded (as many can witness) to make them so publique, as by intreaty to commit them to print.”[21]

Coke revisited the purpose of publication from time to time throughout the Prefaces. In the Preface to the Seventh Volume.

“I set downe in writing, out of my short observations which I had taken of the effect of every argument (as my manner is, and ever hath beene) a summarie memeoriall of the principall authorites and reasons of the reasolutions of that case, for mineowne privat sollace and instruction. I never thought to have published the same, for that it was not like to give any direction in like cases that might happen (the chiefest end of publishing Reports) ….Now when I ended it for my privat, I was by commandment to beginne againe ( a matter of no small labour and difficultie) for the publicke. For certainly, that succinct method and collection that will serve for the privat memorial or repertory, especially of him that knew and heard al, will nothing become a publique Report for the present & al posteritie, or be suffcient to instruct those readers, who of themselves know nothing, but must be instructed by the report onley in the right rule & reason of the case in question……

I thought good as well for thine instruction and use (good reader) as for the repose and quiet of many, in resolving of questions and doubts (wherein there hath beene great diversitie of opinions) concerning their estates and possessions to publish some others that are common in accident, weightie in consequent, and yet never resolved or adjudged before.”[22]

At an earlier stage in the preface to his First Reports, Coke expressed his criticism of the quality of some of the reports that had been published, demonstrating a concern about reliability:

For I have often observed, that for want of a true and certain Report the case that hath bin adjudghed standing upon the recke of manie running Reports (especially of such as understood not the State of the Question) hath bin so diversely drawne out, as many times the true parts of the case have bin disordered and disjointed, and most commonly the right reason & rule of the Judges utterly mistaken.[23]

and it is perhaps noteworthy that in the preface there is no expression of the humility that certainly appears in Plowden’s preface. One may be justified in asserting that Sir Edward considered that his Reports avoid these pitfalls and were a true and correct report of the case, albeit with his own interpolations.[24] Control by authors over unauthorised printing was a problem in the early seventeenth century. Accuracy and credit were clearly matters which concerned Coke and perhaps it is ironic that despite his concerns, The Complete Copyholder which was never authorised for printing was nevertheless published.[25]

The ability to ensure control over the presentation of his material in print was not the only matter that motivated Coke. Throughout all the prefaces to his Reports and other writings there was a recognition of the importance of making information available both for the education of students and for the “common good”. This did not mean that Coke readily endorsed all legal printing. He was critical of some material on offer and in particular some Abridgements.[26] He noted that these had profited the authors themselves:

“but as they are used have brought no small prejudice to others; for the advised and orderly reading over of the Bookes at large in such maner as elsewhere I have pointed out, I absolutely determine to be the right way to enduring and perfect knowledge; and to use abridgements as tables and to trust only to the Books at large. …. and certain it is that the tumulatuarie reading of Abridgements, doth cause a confused judgment and a broken and troubled kind of deliverie or utterance.  But to reduce the said penal Lawes into some Methode or order is an honourable, profitable and commendable work for the whole Commonwealth.”[27]

Coke’s value upon education and learning appeared in the second volume of the Reports:

There is no jewell in the world comparable to learning, No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes (I speake of humaine) so necessarie for all estates, and for all causes, concerning goodes, landes, or lyfe, as the common Lawes of England.[28]

It is not surprising that he saw his Reports and published works as fulfilling an educative function and frequently addressed students of the law in his writings, emphasising the value of accurate source material and frequently giving advice on how to use it and apply it in the course of study.

“In troth, reading, hearing, conference, meditation, & recordation, are necessary I confesse to the knowledge of the common Law, because it consisteth upon so many, & almost infinite particulars: but an orderly observation in writing is most requisite of them all; for reading without hearing is darke and irksome, & hearing without reading is slipperie and uncertaine, neither of them truly yeeld seasonable fruit without conference, nor both of them with conference, without meditation & recordation, nor all of them together without due and orderly observation.”[29]

In his discussion of the style of his case reporting Coke gave further advice to students.

“I have added the pleadings at large: as well for the warrant, and better understanding of the cases and matters in Law, as for the better instruction of the studious Reader in good pleading, which Mast. Littleton faith is one of the most honorable, lawdable, and profitable things in the Law: I wish the continuances had bene omitted, and yet some of them also are not without their fruite. To the Reader mine advise is, that in reading of these or any new Reports, hee neglect not in any case the reading of the old Bookes of yeares reported in former ages, for assuredly out of the old fields must spring and grow the new corne….”[30]

Coke continued his educational advice in the Third Volume[31] setting out a reading list starting with the early common law texts[32] and moving on to more recent publications[33] and concluded that the “most useful and those of the greatest authoritie and excellencie” are the Register, Littleton, Fitzherbert and Stanford and reference is made on other occasions to some or all of these texts, especially in the tenth volume of the Reports.[34]

Coke tendered more advice about the path of learning that a student might undertake. In the Preface to the Third Volume[35] he discussed in some detail what he referred to the degrees of the Law and traced the path that might be followed by a student through the Inns of Chancery to the Inns of Court, and the progress that a typical student might undertake. Given that his primary audience was either those studying or already qualified in the law, and given that the Reports themselves were written in the “language of the law” it seems curious that he considered it necessary to embark upon this discussion. A possible conclusion is that by the time he reached the third volume, Coke was writing for a wider audience and possibly for posterity, thus taking the opportunity to expound upon the common lawyer’s course of education and immersion in what was a difficult field to master.

The wider audience was contemplated in the Preface to the Fifth Volume when Coke stated, after denouncing ignorance and holding that truth and an end of ignorance was an end of confusion, and that the laws of England were the birthright of its subjects

“My only end and desire is, that such as are desirous to see & know (as who will not desire to see & know his owne may be instructed: such as have bene taught amisse (every man beleeving as he hath bene taught) may see & satisfie himselfe with the truth, & such as know and hold the truth (by having so ready and easie a way to the fountaine themselves) may be comforted and confirmed.[36]

As part of his educative function, Coke used the prefaces to his Reports to discuss and develop certain matters of law, and especially wrote about the history of the common law and of common law principles. The Sixth Volume of the Reports followed up on his assertions of the excellence of the common law that he made in the Second Volume. In the Sixth Volume he refers again to the educational function that he sees performed by the Reports

“The reporting of particular cases or examples is the most perspicuous course of teaching, the right rule and reason of the Law: for so did Almightie God himselfe, when hee delivered by Moases his Judiciall Lawes……

And the Glossographers, to illustrate the rule of the Civile Law, doe often reduce the rule into a Case, for the more lively expressing and true application of the same. In reading these and other of my Reports, I desire the Reader that hee would not reade (and as it were swallow) too much at once; for greedie appetites are not of the best digestion: the whole is to be attained to by parts, and Nature (which is the best guide) maketh no leape….

A cursarie and tumultuarie reading doth ever make a confused memorie, a troubled utterance and an incertaine judgement.”[37]

It was not only in the Reports that Coke gave advice to students. In the First Institute (Coke on Littleton) he states:

“My advice to the Student is, that before he reade any part of our Commentaries vpon any Section, that first he reade againe and againe our author himselfe in that section, and doe his best endeavours first of himselfe, and then by conference with others (which is the life of study) to understand it, and then to reade our Commentary thereupon and no more at any one time, than he is able with delight to beare away, and after to meditate thereon, which is the life of reading.  But of this argument we have for the better direction of our student and his studies spoken in our epistle to our First Booke of Reports.”[38]

The educational importance of his work was continued in the  Book of Entries in which it was stated on the title page  that it was “collected and published for the common good and benefit of all the studious and learned professors of the Laws of England”[39] and is therefore obviously designed for a student or professional audience. Precedents of pleadings are gathered together for education and presupposes reading for study, as well as use for practical application.

Sir Edward was well aware of the power of print and he was not backward in promoting his own works. His reference back to his own “first Booke of Reports” provides an example. But apart from the difficulty of an author citing another of his own works as an authority, the significant sub-text to Coke’s comment is that there is no hesitation to refer to printed works. This theme occurs regularly in Coke’s work. So accepted has print become by the time of the printing of Coke on Littleton that in the preface Sir Edward set out the printing history of Littleton’s Tenures as well as a number of other leading texts in print.

Indeed the use of printed work was becoming such a norm that Sir Edward gave advice on how to use printed texts. He recognised some of the problems accompanying printed texts, primarily surrounding issues of credit, but at the same time was not hesitant in recommending certain texts, all of which were in print at the time.

“In reading of the cases in the Bookes at large, which sometimes are obscure and misprinted, if the Reader after the diligent reading of the case, shall observe how the case is abridged in those two great Abridgements of Justice Fitzherbert and Sir Robert Brooke, it will both illustrate the case and delight the Reader; And yet neither that of Statham nor that of the Booke of Assises is to be rejected: And for pleading the great booke of Entries is of singular use and utility. To the former Reports you may add the exquisite and elaborate Commentaries at large of Master Plowden, a grave man and singularly well learned, and the summarie and fruitful observations of that famous and most reverend Judge and sage of the Law Sir Iames Dyer, Knight, late chiefe Justice of the Court of Common pleas, and mine own simple labors: Then have you 15 Bookes or Treatises, and as many volumes of the Reports, besides the Abridgements of the common Lawes; For I speake not of the Statutes and Actes of parliament, whereof there bee divers great volumes. And for that it is hard for a man to report any part of branch of any Art or science justly and truly, which he professeth not, and impossible to make a just and true relation of any thing that hee understands not: I pray the beware of Chronicle Law reported in our Annales, for that will undoubtedly lead thee to error.[40]

By the time that the Fourth Volume of the Reports was printed (1604) Coke had shed his reluctance to see his work in print. The themes of education and the benefit of the commonwealth – themes that had been constant justifications for putting work into print and implicitly recognising the properties of print – were made clear and the importance of knowledge of the law – such knowledge being acquired by publication of the law was emphasised:

“To make one plaine and perspicuous law divided into articles, so as every subject may know what acts be in force, what repealed, either by particular or generall words in part or the whole and what branches & parts abridged, what enlarged, what expounded; so as each man may clearley know what and how much is of them in force, and how to obey them, it were a necessary work and worthy of singuler commendation; which His Maiesty out of his great wisdome and care to the common wealth hath commanded to be done.”[41]

Coke considered for the good of the commonwealth he owed a duty not to keep his reports private but was encouraged to publish and communicate them to all.  Thus, the importance of dissemination by way of publication using the print medium was for the good of the common wealth and was considered a high calling. The public good as a reason for publication was further discussed in the Sixth Volume of the Reports.

“I have (good Reader) brought this sixt worke to a conclusion, and published it for thy private instruction, for the publique good and quiet of many, and for preventing of daunger the daughter of Errour.”[42]

And the importance of the common law as providing an end to disputes which was for the common good was stated in the Eighth Volume:

“the antient & excellent institution of the Comon Law might be recontinued for the good of the commo’wealth (for it is convenient for the commonwealth that there be an end to controversies).”[43]

By the Eighth Volume Coke had refined what he considered his duty to publish Reports

“So ought every man according to his power, place & capacity  to bring somewhat , not onely to the profit and adorning of our deere Countrey (our great Eagles nest) but therein also, as much as such  mean instruments can to expres their inward intention & desire, to honor the peaceable days of his Maiesties happy and blessed government to al posterity. And for that I have bin called to this place of Judicature by his Maiesties exceeding grace & favor, I hold it my duty, having  observed many things concerning  my profession, to publish amongst other certaine Cases that have bin adjudged and resolved since his Maiesties raigne in his highest Courts of ordinary Iustice in this calme and flourishing springtime of his Maiesties Justice, amounting with those of my former edition in al to 84”.[44]

and the importance of publication was by the Tenth Volume becoming associated with some of the higher elements of truth and Justice, for in discussing the nature of the cases appearing in the work he had made them available to with the purpose that “shee which is the foundation of Justice should not lie hiddeen and unknowne.[45]

The concluding words of the Eleventh Volume, the last to be published in his lifetime, aptly summarised Coke’s purposes in printing his Reports.

“The end of this edition is, that God may be gloried, His Maiestie honoured, the common good encreased, the Learned confirmed, and the Student instructed.”[46]

The end of Coke’s judicial career came when James ordered that Coke was not to ride on the summer assize circuit. Instead he was to censor his own law reports, ‘wherein (as his majesty is informed) there be many exorbitant and extravagant opinions set down and published for positive and good law’.[47]  Coke superficially complied and addressed one law suit.  That was all he was prepared to do. On 2 October 1616, after perusing his Reports, Coke reported that he had found only five trifling errors. This was defiance, and James responded in kind. He demanded that his obstinate chief justice explain five of his most dangerous conceits. When Coke refused this final opportunity to recant  the king acted. On 16 November 1616 Coke was removed from the bench. It was said, John Chamberlain wrote, that ‘four p’s’ had overthrown the chief justice: ‘that is, pride, prohibitions, praemunire, and prerogative’[48]

But that was not the end of Edward Coke. He commenced a career as a Member of Parliament. In 1628 he argued  ‘I know that prerogative is part of the law but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign’.[49]

When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke saw a rare opportunity; the king’s demand gave him the chance to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. It was Coke who suggested the petition.

But the King had a long memory and in April 1632 the king’s men raided his home at Stoke and Coke wept as his papers were removed. In 1633 Charles sealed Coke’s rooms at the Inner Temple. Finally, in the last days of August 1634, while Coke lay dying, the king’s men ransacked both Coke’s study at Stoke and his files at the Inner Temple. Roger Coke, the judge’s grandson, wrote that they seized more than fifty manuscripts and other papers. Clearly his writings and the use of his papers after his death was seen as a potential threat. Both the requirements in 1616 that he censor his writings and the raids on his papers and his chambers indicate that Coke the Judge and lawyer had stepped over the mark among other things in using print to spread his views about the law and the fear of further dissemination of opinions that may have been contrary to Royal police by means of the new communications technology.

Certainly Coke’s unwillingness to change his Reports demonstrated the risks he encountered in using the new technology. It is doubtful that he would have attracted the same attention had he circulated manuscripts among his colleagues and stayed away from print.


[1] The other most notable one  of the first part of the sixteenth century was Christopher St German, the author of Doctor and Student.

[2] Law-French was the language of lawyers and Latin the language of an educated elite. Thus printing in Latin would extend the audience but in a very limited way.

[3] John Rastell, “Prologus Johannis Rastell”, in Exposiciones terminorum legum anglorum. Et natura breuium (Johannes Rastell, London, 1525) STC 20702

[4] Wood v Dallison cited in I. S. Williams “He credited more the printed booke” (2010) 28 LHR 38 at p. 67 – 68 fn 39.

[5] N.. Doe Fundamental Authority in Late Medieval English Law (Cambridge University Press, Cambridge 1990) p.38.

[6] Ibid. p. 39 Doe refers to the author of Mirror of Justices, a text of questionable provenance which emphasised the importance of the textualisation and publication of “the laws and usages of the realm”. For a discussion of textualisation and the law see Peter Tiersma Parchment Paper Pixels: Law and the Technologies of Communication (University of Chicago Press, Chicago, 2010) p. 28, 31 – 32.

[7] John Rastell, above n. 3.

[8] Other law printing pioneers were Wynkyn de Worde, William de Machlinia, William Lettou, Richard Pynson and Robert Redman. See above p. 102-103  for discussion of their role.

[9] Sonny Bono 1967.

[10] Edmund Plowden Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen ley (Richard Tottell, London, 1571) Preface

STC 20040

[11] Ibid.

[12]Summed up in the term “notre erudition” – see J.H. Baker Laws Two Bodies – Some Evidential Problems in English Legal History (Oxford University Press, Oxford 2001) esp. Ch 3.

[13]  Possibly an aspect of “notre erudition” especially as far as case notes or reports were concerned. The oeuvre of printed treatises suggests that they were intended for a wider audience (or more extensive dissemination). It is perhaps relevant to note that the cross referencing to other legal works was to those that were in print rather than manuscript sources. The cross referencing to printed material pointed the reader in that direction. Any relevant manuscript material would have come to the attention of the reader from another source or would be derived from the coterie or “notre erudition” if indeed the reader was privy to it.

[14] Samuel Harvey Reynolds, (ed) The Table Talk of John Selden (Oxford University Press, Oxford, 1892), p.

135. See also Nicola Shulman Graven with Diamonds: The Many Lives of Thomas Wyatt (Short Books, London, 2011); J.W. Saunders “The Stigma of Print –  A Note on the Social Bases of Tudor Poetry” (1951) Essays in Criticism 139. For further discussion see The Law Emprynted and Englysshed pge 153 et seq.

[15] Abridgment des touts les cases reportez alarge per Monsieur Plowden (Jane Yetswiert, London, 1597) STC 20037; The 1607 printing was by Adam Islip for the Stationers – STC 20038. Fabian Hicks An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden ((Printed by R. White, and T. Roycroft, for Matthew Walbanke, and Henry Twyford, London, 1650) Wing (2nd ed.) / P2609.

[16] 2 Cokes Reports p.viii (preface).

[17] The association of a report with a named reporter had been developing in importance in manuscript law reports. See Baker Introduction to English Legal History (3rd ed) (Butterworths, London, 1990)  p. 180.

[18]And did although the behaviours were more related to disseminating something that was in short supply rather than recommending something that was readily available.

[19] 4 Coke Reports Preface

[20] 1 Cokes Reports.

[21] Ibid.  “The Preface to the Reader.”  Folio C2 et seq A similar comment is made in the Preface to the Third Volume – “Your extraordinarie allowance of my last Reports, being freshly accompanied with new desires, have overcome me to publish these few excellent Judgements and Resolutions of the reverend Judges and sages of the Law.” “To the Reader”  Folio C2 pages unnumbered.

[22] 7 Cokes Reports The Preface  Folio aiii pages unnumbered.

[23] 1 Cokes Reports “The Preface to the Reader” Folio C2 pages unnumbered.

[24] It is not clear on the face of the Reports where Coke’s interpolations occur.

[25] Cokes worst fears about “true and certain” reports had come to pass. In the Preface to the Seventh Volume he is highly critical of a pamphlet reporting a speech given at the Norwich Assizes in August 1606. He is critical particularly of the lack of context and the errors of law that it contained. His comment that he would not have let any of his works pass under the name ascribed to the pamphlet, and if he had thought it worthy would have published it himself. The subtext to the complaint is that there was a passing off, much to Coke’s anger and embarrassment.

[26] Coke places great store on reading as a method of study. Although he has also referred to discussion and contemplation as essential study skills, the focus more and more shifts to the use of books. Coke was educated in the Elizabethan Inns of Court where the oral-memorial system or moots, exercises and readings was still continuing undiminished. By the seventeenth century it may be fair to conclude that Coke saw that there was a shift in legal education towards a more individually centered form of study which could be best achieved by considering and reading the “right books”.

[27] 4 Cokes Reports Folio B3 pages unnumbered.

[28] 2 Cokes Reports  “To the Learned Reader”  ¶3 pages  unnumbered.

[29] 1 Cokes Reports “Preface to the Reader” page unnumbered.

[30] Ibid.

[31] 3 Cokes Reports.

[32]  Glanvil, Bracton, Britton, Fleta, Ingham and Nova Narrationes

[33] The Old Tenures, the Old Natura Brevium, Littleton, Doctor and Student, Perkins, Fitzherbert’s Natura Brevium and Stanford’s Plees de la Coron.

[34] 10 Cokes Reports.

[35]  3 Cokes Reports.

[36]  5 Cokes Reports “To the Reader” Folio Aiiii pages unnumbered.

[37]  6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[38] Coke on Littleton “The Preface” Folio C3 pages unnumbered.

[39] Edward Coke A Booke of Entries (Printed for the Societie of Stationers, London, 1614) The “common good” in this context was limited to the audience – the book was for the benefit of all of them. Beyond this social implication this cannot be said to extend to the “common weale” either in the wider social or political senses. The title page may well contain some printer’s hyperbole. Note that the term “ law student” had a special meaning in the early modern period which was wider than that contemplated by the undergraduate student of today..

[40] 3 Cokes Reports “To the Reader” Folio C2 page unnumbered. The Book of Entries to which he refers may well have been his own although it was not printed until 1614. It is in the Preface to the Third Volume of the Reports that Coke repeats the theory advanced by Plowden that authorship of the Year Books rested with four “reporters” appointed by the Crown.

[41] 4 Cokes Reports “To the Reader” Folio B3 pages unnumbered. In this passage Coke is referring to statutory law which had increased in volume since the reign of Henry VIII. It emphasises the general theme of the preface which is about making the law available.

[42] 6 Cokes Reports “To the Reader” Folio ¶iii pages unnumbered.

[43] 8 Cokes Reports “To the Reader” Folio Aii page unnumbered.

[44] Ibid.

[45] 10 Cokes Reports “To the Reader”  pages unnumbered.

[46] 11 Cokes Reports “To the Reader”  pages unnumbered. The Twelfth Volume and Thirteenth volumes were printed posthumously in 1656.

[47] The letters of John Chamberlain, ed. N. E. McClure, 2 vols. (1939) 2.14

[48] Ibid. 2.34

[49] C. Russell, Parliaments and English politics, 1621–1629 (1979) p. 352

The Googling Juror: The Fate of the Jury Trial in the Digital Paradigm

This paper considers the challenges posed by the information communication technologies of the Digital Paradigm to existing concepts of the fair trial by an impartial jury. It will argue that it is necessary to recognise the existence of the new technologies and that they will be used by jurors. It will suggest steps that may be taken and solutions that may be adopted to address such activity which maintain the integrity of the criminal jury trial and its continued place, unchanged, within the legal spectrum.

 The paper addresses the nature of the problem and the issues that arise from the wide availability of information on the Internet and will address two major ways in which information use may potentially cause difficulties for the juror. These may be described as “information in” – juror research which may result in information coming into the jury room, and which may be disclosed or made available to other jurors – and “information out” – communications emanating from sitting jurors about the trial, the state of deliberations and of seeking external advice.

The paper examines some possible reasons why it is that jurors wish to ignore judicial instruction and carry out their own researches. This will be viewed in light of the effect that new technologies may have on our wider expectation of information availability and the way in which those technologies enable behaviours.

The paper refers to recent research which may challenge the assumption that juror research may automatically result in a mistrial or is prejudicial to the trial process and offers some possible solutions to the problem. One is to consider juror education that goes beyond a judicial prohibition on “out-of-court” research. The other is to consider a nuanced and graduated response that may be applied when juror misconduct comes to light. The paper concludes that while so challenged, the jury system can survive the encounter with new information technologies.

A part of this paper – Why Do Jurors Go On-Line – was published as a stand-alone piece here. The paper was presented to the International Criminal Law Congress in Queenstown, New Zealand on Thursday 13 September 2012.

In essence the paper argues that changing information expectations on the part of “digital native” jurors are having an impact upon the jury trial – which uses an archaic oral means of communication information. This creates a tension with the “information now” non-linear means of information acquisition that digital technologies allow. The suggestion is that there are a number of means of addressing the problem and adapting trial processes to accommodate the information expectations of jurors. In addition, it suggests a nuanced approach to dealing with juror misconduct based on an analysis of information flows and possible impact upon the outcome of the trial.

  

 

Social Media and the Judiciary

Introduction

Twitter Justice
Twitter Justice
From http://www.londonlovesbusiness.com/business-in-london/law/londons-20-most-influential-tweeters-law/1118.article

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.”

The United States of America

The Courts Technology Conference 2011 held at Long Beach had a session about social media and the courts although the discussion was wide ranging and included the use of social media by courts administration.

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: Twitter and YouTube Prosecutions

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.

Twitter Bandit – courtesy UK Human Rights Blog

Chambers v DPP

The statutory and factual setting

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.

[3] [2012] EWHC 2157 at paras 9 – 10

[4] For further observations about the extent of a Twitter audience, see below especially in the context of a direct message.

[5] Ibid. para. 30

[6] See discussion below

[7] [2012] EWHC 2157 at paras 31 – 33

[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)

[10] [2012] EWHC 2157 at para 38.

[11] Ibid. para 28. The precise words that Edgar used, in the context of the denoument of the tragedy are;

“The weight of this sad time we must obey;

Speak what we feel, not what we ought to say.” King Lear V iii

[12] Twitter Help Center – How to Post and Delete Direct Messages (DM) https://support.twitter.com/groups/31-twitter-basics/topics/109-tweets-messages/articles/14606-what-is-a-direct-message-dm (last accessed 29 July 2012)

[13] Why can’t some Tweets be retweeted?

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

[15] Ibid. para 4.

[16] Prime Minister of New Zealand.

[17] Ibid. para  7.

[18] Ibid. para 22

[19] Ibid paras 26, 28-29

[20] This Bill proposed the amendments to the Crimes Act which became the Crimes Amendment Act 2003 and which included s. 307A

[21] Hansard Vol 612 p. 9141

[22] Ibid. p. 9337

[23] Now a Law Commissioner with the New Zealand Law Commission

[24] R v Secretary of State for the Home Department Ex Parte Daly [2001] UKHL 26; [2001] AC 532 per Lord Steyn.

[25] For example the use of the words “Yeah, right” seem to suggest a double or emphasised positive. However, depending upon context the two words can actually mean a negative or disbelief. It is perhaps the only example of where the use of a double positive carries the meaning of a negative. For example see the billboards advertising Tui Beer and which address various social issues https://www.google.co.nz/search?q=tui+billboards&hl=en&prmd=imvns&tbm=isch&tbo=u&source=univ&sa=X&ei=tK0VUPXaE-ytiQfor4DQDA&sqi=2&ved=0CFgQsAQ&biw=1280&bih=905 (last accessed 30 July 2012)

[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

[31] See “Why Do Jurors Go On-Line” The IT Countrey Justice 27 July 2012 https://theitcountreyjustice.wordpress.com/2012/07/27/why-do-jurors-go-on-line/ (last accessed 30 July 2012). Some of the qualities are:

Persistence

Dynamic Information

Continuing change – the disruptive element

Dissociative enablement

Permissionless innovation

Permanent connectedness

Participatory information creation and sharing

Searchability

Availability and remote access

Retrievability

Why Do Jurors Go On-line?

The discussion that follows is part of a wider investigation that I have undertaken in preparing for a paper to be presented at the International Criminal Law Congress to be held in September 2012. The paper is about the use of social media by jurors, the challenges that this presents to the jury system and how these challenges can be met.

Part of the paper deals with why it is that jurors go on-line, despite admonitions from the Bench. In brief it all has to do with the way in which new information technologies impact upon, enable and change our behaviour. In terms of information flows – which is what a jury trial is all about – the digerati, if I can use that term, find the trial process to be counter-intuitive to their information gathering and processing experience. The discussion below expands upon these observations. Some of the thinking that underpins this discussion was expressed in a much more abbreviated form in my keynote at Nethui on 13 July 2012.

Comments, of course, are welcome and encouraged.

Why Do Jurors Go On-line?

The Internet allows practically anyone anywhere to disseminate information just about everywhere.  Enlightenment era insistence upon essentialist  foundations – be it by way of Locke’s empiricism, Kant’s rational categories or other totalising epistemologies – is being challenged by the digital experience.[1]  Richard Rorty in his forward to Gianni Vattimo’s Nihilism and Emancipation: Ethics Politics and Law said “ the Internet provides a model for things in general – thinking about the worldwide web helps us to get away from platonic essentialism, the quest for underlying natures, by helping us to see everything as a constant new changing network of relations.”[2]

The digital paradigm has resulted in the development of a generation within society who have known nothing else but digital information systems – Marc Prensky’s “digital natives.”[3] Prensky was writing about students and their use of technology but the University students of whom he wrote in 2001 are now adults and available for jury service.

 “They have spent their entire lives surrounded by and using computers, videogames, digital music players, video cams, cell phones, and all the other toys and tools of the digital age.  Today’s average college grads have spent less than  5,000 hours of their lives reading, but over 10,000 hours playing video games (not to mention 20,000 hours watching TV).  Computer games, email, the Internet, cell phones and instant messaging are integral parts of their lives

 It is now clear that as a result of this ubiquitous environment and the sheer volume of their interaction with it, today’s students  think and process information fundamentally differently from their predecessors. These differences go far further and deeper than most educators suspect or realize.”[4]

Prensky’s “digital natives” are “native speakers” of the digital language of computers, video games and the Internet. Those who were not born into the digital world but have, at some later point in life, become fascinated by and adopted many or most aspects of the new technology are “digital immigrants.” Prensky suggests that the difference is important because, like it or not, digital immigrants speak with a different “accent” from digital natives.

 “As Digital Immigrants learn  – like all immigrants, some better than others – to adapt to their environment, they always retain, to some degree, their “accent,” that is, their foot  in the past.   The “digital immigrant accent” can be seen in such things as turning to the Internet for information second rather than first, or in reading the manual for a program rather than assuming that the program itself will teach us to use it. Today’s older folk were “socialized” differently from their kids, and are now in the process of learning a new language. And a language learned later in life, scientists tell us, goes into a different part of the brain.”[5]

 There is a third category which was not referred to by Prensky, but if I can use his language they may be classed as “digital aliens” those who wish to have nothing to do with the digital paradigm, who do not wish to engage with the new technology or will not do so, and who resist the changes that new technologies demand of them. This grouping is normal in the introduction of a new technology. It is part of the normal co-existence of technologies until a new technology has been universally received, and the digital natives become an overwhelming majority.[6]

The closed system of the jury trial, contained by strict rules which discourage initiative and activism by the jurors, is premised on the assumption that jurors will accept the authority of the court to guide them and are willing to base their decision only on what the lawyer present[7]  does not mesh with the experience and values of the digital native juror or perhaps even many digital immigrants.

Jurors are:

a)  only presented with the evidence that they are allowed to consider.

b) The evidence has been vetted, filtered, and mediated by the Judge and the lawyers.

c) Jurors are forbidden from taking the initiative and finding out information on their own.

d) They are told to be largely passive and are told (at least in the United States) that they cannot discuss the evidence or the case with one another until it is time for deliberation.

e) In the United States they are discouraged from asking questions during trial and once they are told to deliberate they are unable to obtain or be supplied with any new information or evidence even where they find significant gaps in what they have been told.

f) Finally they have to decide the case on the basis of legal rules articulated by the Judge and they cannot use their own values or moral sense.

 This runs up against what could be described as the values of the Internet and the digital age or at least a perception of the relationship between information provided by the Internet and Internet users.

One of the early slogans of the Internet and the digital age was the cry that information wants to be free.  This didn’t refer only to the cost of obtaining information but also the concept that information, and especially information on the Internet, should not be controlled by governmental or corporate sources nor should it be reserved for a privileged few.[8]  The ultimate user of the information should be capable of evaluating sources of varying quality and make his or her own decision about what to use, rely on it or what to discard.  The information available on the Internet is broad in nature.  The individual must sort through the results and the user must decide what the value and explore and what to discount.

Unlike information at trial where a juror may not be able to examine the exhibits until deliberations, the Internet user with electronic devices can access information immediately from virtually any location, save it or retain it or bookmark it and review it as often as desired and also link it to other information.

The Internet allows the user to discuss any subject, public or private, with other people at any time of the day or night in considerable detail or within the 140 character limitation of Twitter. It should not, therefore, be surprising for a digital native – one used to the world of the Internet and social media – that the methods and form of acquiring information in a trial may seem stifling, inefficient and unduly restrictive.[9]

Another reason why jurors may wish to have resort to the Internet has to do with their perceived role in the process. Morrison makes the observation that jurors are often trying to gain information about the defendant’s background, the circumstances of the case and the effects of the law in an effort to achieve the most accurate result.  She argues that such attempts may not reflect misconduct so much as a misplaced sense of responsibility to render the right decision.[10]

Internet access may be giving juries a means, although unauthorised, of sending a signal that they are frustrated with the restrictions associated with their role.  Morrison suggests that juries seem to have been relegated to players within the trial process whose information about what is going on is severally constrained by the Judges, the lawyers and the rules of evidence.[11]  The Internet’s “democratisation” of information has extended to the jury room and the emerging issue of Internet use by jurors may reflect in attempt to regain a measure of control over the proceedings that has since been given over to the legal profession.

The trial process and the rules of evidence reflect a concern that the wrong kind of evidence will distract jurors or cause them to decide on emotional or irrational bases.  The result is that jurors operate in a highly restrictive, formalistic environment that ensures that only some relevant information will be admitted. Some jurors may feel that the lawyers and the Judge form some sort of elite club from which they are excluded, as if the adversarial system is “based on the Judge and the Attorneys being in the know about everything and the jury being in the dark”.   This may not be new.  What has changed, however, is the jurors’ ability to do something about it,[12] and jurors, like other people, are generally unable to disregard information that they know and that they consider to be relevant, whether they ought to or not.[13]

Furthermore, juror “research” may amount to more than the perusal of on-line newspapers.

a)         on-line activity has become fully embedded in most people’s everyday lives.  While a juror might refrain from reading the paper, it might be impossible to refrain from checking in RSS feed.

b)         Information may be available from websites that contain legal information, case law databases, legal blogs or targeted sites that contain details of previous convictions such as a site operated by the Sensible Sentencing Trust.[14]

c)         In addition, there is almost limitless information available on the Internet even about facts or individuals which would not otherwise be deemed news worthy.

d)         because there is no system of fact checking on the web information may be incomplete erroneous or false.

 Part of the difficulty is that courts operate on the assumption that jurors will abide by legal instructions but the psychological literature and empirical studies show that jurors frequently misunderstand these.[15]  The Internet, with its virtual connections that seem almost – but not quite – real, confuses jurors further.  It provides an opportunity to check and to ensure that the right result is being reached as a way of ensuring that decision making freedom is maintained. The conflict models of the adversarial system seem to be yielding to alternative truth-seeking strategies.

Yet there is more to it than that, and to a large degree it has to do with the way in which we respond to new communication technologies. Morrison describes this as the “siren song” of the web.[16]  The Internet represents a different paradigm in communications technology – part of what may be referred to as the Digital Paradigm. It is quite different from other media that have gone before.  As one psychologist put it “being highly interactive, computers are much more captivating than passive media such as television.”[17]  This takes McLuhan’s theory of “hot” and “cool” technologies a step further.[18]  The difference between reading, for example, and television depended upon the level of engagement with the medium.  The level of interactivity with the medium, as far as the Internet is concerned, is significantly higher than with a book or with a television programme. And it must be remembered that the Internet is more than just an information platform and has moved to the interactive and participatory world that is Web 2.0 enabling the launch of Wikipedia, YouTube, Facebook, Myspace and Twitter.  The Internet has become a kind of universal companion that enables people to confide, exhibit themselves and vent their frustration in ever increasing numbers.[19]

Yet the Internet works in other ways. There is an illusion of anonymity. Immediacy encourages transgressions through the phenomenon of dis-inhibition which leads to impulsive behaviour.[20]  Psychologists have found that people are less inhibited and reveal more about themselves on-line because they feel invisible and protected by the Internet’s seeming anonymity.  Some people prefer to interact on-line rather than face-to-face. According to one psychiatrist, deficits in insight and judgment maybe especially obvious in the context of Internet behaviour.[21] Furthermore there is often an element of dissociation with reality which encourages a certain amount of unjustified self-confidence that a particular behaviour will go unnoticed, is not wrong or is being performed in a space – often in the private space  of a room in a home or an apartment – which lends a certain justification to the behaviour.[22] In the same way that the computer criminal is a greater threat to the community in terms of the nature of his criminality than the fraudster who presents a credit card across a counter – simply because the computer criminal does not have to interact with other people in the pursuit of his crime – the juror feels likewise alienated from the court room environment which occupies a different world in terms of culture – especially informational acquisition culture – from that to which he or she is accustomed.

Morrison is of the view that various Internet protocols exercise their own particular fascination. “Blogging, posting status updates, and tweeting present their own compulsive appeal.”[23] The externalisation of thoughts that may be read by others may lead to an assumption that all of one’s thinking should be externalised.[24] For some, waiting around on jury duty with access to WiFi can be tedious, prompting posts to Twitter or to a blog.

“I am stuck in jury duty today, but being that Multnomah County is the coolest of counties, of course the jury waiting room has Wi-Fi! So of course that means one thing: I’m live blogging jury duty. Is this legal? Am I in contempt of court? I don’t know, but I am sitting in a big, drab room with about 100 other people, waiting around to see if our number is called to go up stairs and serve on a trial, and it is obvious that this must be blogged about. I’ll have to run home during the lunch break and grab my camera so I can post some pictures of this afternoon’s action.”[25]

 It could be said that a convenient summary of why jurors carry out their own research may be answered by the phrase “because we can” and this would probably be the justification advanced by the digital native. Yet I would suggest that there is more to the issue that that, and there are deeper currents that are associated with new information communications paradigms that may help to explain the way in which the Internet has taken hold.

The Internet, Information Technology and Drivers for Change

When we consider information technologies in the main we focus upon what is delivered (the content) rather than how it is delivered (the medium). The focus upon content obscures some of the deeper realities of the technology and how it alters or affects our attitudes to, uses and expectations of information.

In considering the first information technology, Elizabeth Eisenstein suggested that the capacity of printing to preserve knowledge and to allow the accumulation of information fundamentally changed the mentality of early modern readers, with repercussions that transformed Western society.[26]  Ancient and Medieval scribes had faced difficulties in preserving the knowledge that they already possessed which, despite their best efforts, inevitably grew more corrupted and fragmented over time. The advent of printed material meant that it was no longer necessary for scholars to seek rare, scattered manuscripts to copy. The focus shifted to the text and the development of new ideas or the development of additional information. The printing press was paradigmatically different from the earlier scribal or manuscript culture in terms of making information available.

In developing her theory, Eisenstein went below the content that print made available and examined certain characteristics, qualities or properties possessed by print that differentiated it from earlier forms of information communication. These qualities were:

a)         dissemination

b)         standardisation

c)         reorganization

d)         data collection

e)         fixity and preservation

f)         amplification and reinforcement. [27]

In many respects these properties remain in digital technologies but in an enhanced form. In addition there are a number of other qualities that digital information systems possess that are paradigmatically different from those possessed by print. Some of these can be identified as follows:

    1. Persistence
    2. Dynamic Information
    3. Continuing change – the disruptive element
    4. Dissociative enablement
    5. Permissionless innovation
    6. Permanent connectedness
    7. Participatory information creation and sharing
    8. Searchability
    9. Availability and remote access
    10. Retrievability

I shall refer to the quality of persistence shortly. Perhaps the last three qualities can be dealt with as a single unit for they are related. Searchability deals with the ability to locate information from the vast store of information that is located across the Internet. Complex search engines assist users to find the information that they seek. Availability means that the information can be readily obtained. No longer does the user have to go to the library, wait for the book to be returned to the library, or for interloan to send the book. Information becomes instant. Retrievability follows availability. Once the existence and location of the information is determined, it can be obtained.

These qualities of themselves don’t mean much until we understand what they enable. The fact that Internet users may not understand the nature of these properties, but accept them as a given in the quest for content, means that these qualities subconsciously impact upon expectations of information (instantly available) and they way that users deal with it and process it.

These qualities challenge the jury system – the juror is enabled to readily locate information that may have a bearing on a case, not because that juror is willingly flying in the face of a judicial directive to the contrary, but because the Internet is the way in which information is obtained, rather than through the archaic processes of a trial. That, together with the property of dissociative enablement – the ability to obtain information privately and undetected – allows a different mindset that sidesteps the morality of obtaining information outside the trial process.

The “permissionless innovation” and “permanent connectedness” of the Internet has allowed for a number of other applications and utilities which, along with the interactive nature of Web 2.0, present further challenges. These can broadly be referred to as social media tools. Social media recognise that man is a social animal and the Internet allows for socialization on a scale far wider than in clubs, bars or workplaces.

Social Media

In 2010 the committee of the Conference of Court Public Information Officers issued a report on the impact that the new media is having on the court system.[28] The findings of that study were interesting. It observed

  •   that there are emerging interactive social media technologies that are powerfully          multimedia in nature;
  •   that there are fundamental continuing changes in the economics, operation and vitality of the news industry that courts have relied upon to connect with the public
  • and there are broader cultural changes in how the public receives and processes information and understands the world.

These “new media” pose a number of challenges to Courts and their culture.

  • New media are decentralised and multi directional whilst the courts are institutional and largely unidirectional.
  • New media are personal and intimate whereas Courts are separate, sometimes cloistered and by definition independent.
  • New media are multimedia incorporating video and still images, audio and text whilst Courts are highly textual.

Into this cloistered and highly textual environment come jurors whose perceptions have been formed by the media to which they have been exposed.

The report identifies 7 categories of new media technology that impact upon the Courts.  These are:

1)         Social media profile sites (Facebook, Myspace, Linkedin, Ning) which allow users to join, create profiles, share information and view still and video images with a defined network of “friends”.

2)         Microblogging (Twitter, Tumblr, Plurk). Microblogging is a form of multimedia blogging that allows users to send and follow brief text updates on micromedia such photos or audio clips and publish them on a website for viewing by everyone who visits the website or by a restricted group.  Microbloggers can submit messages in a variety of ways, including text messaging, instant messaging, email or digital audio.

3)         Smart phones, tablets and notebooks (iPhone, iPad, Droid and Blackberry). This category is defined by those mobile devices that can capture audio, as well as still and video images, and post them directly to the Internet.  These devices also enable users to access the Internet, send and receive emails and instant messages, and otherwise connect with on-line networks and communities through broadband or Wifi access.

4)         Monitoring and metrics (Addictomatic, Social Seek, Social Mention, Google Social Search, Quantcast) This category includes the large and increasing body of sites that aggregate information about Internet traffic patterns and what is posted on social media sites.  They display analysis of how a particular entity is portrayed or understood by the public.

5)         News categorising, sharing and syndication (Blogs, RSS, Dig, Reddit, Delicious)  this is a broad category that includes websites and technology that enable the easy sharing of information, photos and video, and the categorisation and ranking of news stories, posts to blogs and other news items.

6)         Visual media sharing (Youtube, Vimeo and Flikr) these sites allow users to upload still and video images that are stored in searchable data bases and easily shared and can be emailed, posted, or embedded into nearly any website.

7)         Wikis.  A Wiki is a website that allows for the easy creation and editing of multiple interlinked web pages via a web browser using a simplified mark-up language or a WYSIWYG (what you see is what you get) text editor.  Among the uses for wikis are the creation of collaborative information resource websites, power community websites and corporate intranets.  The most widely recognised and used wiki is the collaborative encyclopedia Wikipedia.  In other much lesser known wiki that has an impact on the judicial system and is the subject of study in the new media project is Judgepedia.

 All of these categories of new media involve the creation, assembly and dissemination of information.  Many of these utilities have been adopted by mainstream media on the Internet to the extent that there is a significant element of media convergence.[29] Not only may information about cases be disseminated in a multitude of ways by mainstream media but may be the subject of commentary discussions and opinion on blogs and twitter.

In addition, modern technology means that the Internet is accessible virtually anywhere – permanent connectedness.  Portable wireless devices mean that an individual may blog or tweet from anywhere, including inside a Court room.  Miniaturised devices such as smart phones mean that such activity may be carried out discreetly.

Once this information is on the Internet it is readily available and the “persistence” quality of the Internet means that, like the Internet itself, it is always available.  Information posted on the Internet remains there – it is contained in the “document that does not die.”  Although a website may have suffered from “link rot” and may not be immediately accessible, it may be located by means of a utility known as the “Wayback Machine” which indexes websites and makes them available as part of a project known as The Internet Archive.[30]

Some websites prevent the “harvesting” of their websites by use of anti-robot or webspider devices. The New Zealand Herald is one example. However, TVNZ websites are available as far back as 1997.[31] Thus information about Court proceedings and what has gone before from the commencement of an investigation may be available pre-trial, during trial and post trial and is available to anyone who has an Internet connection.  The wide variety of social media and new media tools which continue to develop as new ideas manifest themselves as the result of “permissionless innovation” means that to try and identify any one particular type of application or utility is an exercise in futility mainly because information may be available from a number of sources.

Large scale search engines, such as Google, rank information on the basis of a number of factors.  Internet users posting information may take advantage of ranking to ensure that a particular site may appear on the first page of a search result.  News media are particularly adept at this by making sure that embedded in their material are terms that will lift rankings in the search engines.

The other side of this particular coin is that much information that is on the Internet is simply buried because it doesn’t rank as highly as others on search engines.  Only the most devoted or dedicated researcher is going to go through the thousands of hits that a particular search may reveal.  This means, for example, that many bloggers who may feel that they have something to say, in fact broadcast to a limited audience.  The impact that these contributors make to the informational soup is very low.  On the other hand a highly distributive utility such as Twitter means that a message sent to a small group of followers may well be re-tweeted to an infinitely larger audience.

Because of the persistence, permanent connectedness, availability, searchability and retrievability of information, what has been described as “practical obscurity” of information means that information that once was difficult to find is readily available.  For example to recover a newspaper report of the arrest of a high profile person in pre-Internet days may have necessitated a trip to a library newspaper room and a diligent search through back issues of a newspaper to locate the information.  The Internet now makes that information instantly available and it is fresh as the day upon which it was published.  The eroded  memory – what could be called “partial obscurity” – can be quickly restored as the easily locatable reports or information appears on the screen.  Thus the one of the many truly revolutionary qualities of the Internet is the challenge to the obscurity of information.

Yet perhaps one of the most challenging aspects of the Internet is that it never sits still. This has to do with the way in which the Internet has been structured. For many the Internet is the World Wide Web, but it is not. In fact the Web is an application that “piggybacks” upon and utilises the infrastructure that the Internet provides. The quality of “permissionless innovation” allowed Tim Berners-Lee to put the concept of the Web on the backbone of connections and servers that comprise the Internet backbone – the “real” Internet. In its most basic form the Internet is a global system of interconnected computer networks that use the standard Internet protocol suite (often called TCP/IP, although not all protocols use TCP) to serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks, of local to global scope, that are linked by a broad array of electronic, wireless and optical networking technologies.

John Naughton uses the metaphor of the railway to describe the Internet.

 “Think of the Internet as the tracks and signalling technology of the system – the infrastructure on which everything runs. In a railway system different kinds of traffic run on the infrastructure: high-speed express trains, slow stopping trains, commuter trains, freight trains and (sometimes) specialist maintenance and repair trains”[32]

 What this infrastructure enables is disruptive, permissionless innovation. Disruptive innovation is defined as “a process by which a product or service takes root, initially in simple applications at the bottom of a market and then relentlessly moves ‘up market’, eventually displacing established competitors.”[33] The disruptiveness of the Internet is a feature that derives from the basic architectural principles of the network’s design. When Vinton Cerf and Robert Kahn developed the TCP\IP (packet addressing and transmission) protocol that allowed the various different networks and computer types to seamlessly link there were two principles that drove them, and that are the bedrock of the architecture of the Internet;

–          There should be no central control

–          The network should not be optimised for any particular application – the “end-to-end” principle.[34]

Thus, if one had an idea for a new application that could be achieved using the transmission of data packets, the network would allow it without any query about the nature of the application or what it transmitted. A number of phrases developed to describe this phenomenon such as “stupid network, smart applications” but ultimately it became known as the “end to end” principle and it was this, together with the lack of a central controlling or approval body that enabled entrepreneurs and developers to think up applications that could utilise the capabilities of the network.

Examples abound but some of the more outstanding are the development of the World Wide Web by Tim Berners-Lee, the first killer file sharing application Napster[35] by Shawn Fanning released in 1999, the introduction of Amazon.com by Jeff Bezos in 1995, the Wiki software developed by Ward Cuningham in 1994-5 which enabled the editing and updating of web pages on the fly in a browser and which was adopted by Wikipedia founders Jimmy Wales and Larry Sanger in 2001, the introduction of Google[36] in 1998 by Larry Page and Sergey Brin, the development of the social networking site Facebook by Mark Zuckerberg in 2004[37] and Twitter developed by Jack Dorsey in 2006.

The examples that I have given are just a small handful but they and others like them demonstrate an important fact about the Internet and it is this – the Internet will not allow for a period of stability – a time for us to pause, reflect and regroup. There will continue to be new applications and new surprises which digital natives are going to adopt and adapt and which will continue to challenge institutions that developed in a different paradigm.

Change, Communication and Juror Behaviour

But what has all this to do with juror behaviour? I suggest that it is a part of a deeper issue about how we adapt to new technologies and to new communications technologies in particular. Communication is an essential part of man’s social nature. Without communication there would be isolation. For thousands of years our primary means of communication was oral. Writing and literacy are recent arrivals. Plato railed against writing as a challenge to the powers of memory.[38] The arrival of the printing press followed upon centuries of the scribal culture which had developed into a static form of information communication.[39] The printing press was the first information technology and provided the basis for a number of changes in the way in which people thought and behaved. It demonstrated McLuhan’s aphorism “We shape our tools and afterwards our tools shape us.”[40] Within the pre-print culture, orality dominated as the principal form of social communication. The printed book gave rise to the muting of orality as the reader retired into his or her own mind.[41] Reading made different demands on people – immobility, isolation, silence, concentration “the ability to immerse oneself in the thought processes of the writer and to remember and make links with the thoughts of writers as expressed in other texts.”[42]

Although reading had been a part of the human existence for thousands of years before printing, the advent of printed material made the written word available to a wider audience. However, humans are not genetically structured for reading in the way that we are for oral language. Maryanne Wolf in her book on the neuroscience of reading[43] argues that reading changes the way that our brains are organised which has had an impact on the way in which the species evolved. It is based upon what neuroscientists refer to as the plasticity of the brain. As we acquire new skills, new connections are created in the brain and new neural pathways are developed. Wolf puts it this way:

“Thus the reading brain is part of highly successful two-way dynamics. Reading can be learned only because of the brain’s plastic design, and when reading takes place, that individual brain is forever changed, both physiologically and intellectually. For example, at the neuronal level, a person who learns to read in Chinese uses a very particular set of neuronal connections that differ in significant ways from the pathways used in reading English. When Chinese readers first try to read in English, their brains attempt to use Chinese-based neuronal pathways. The act of learning to read Chinese characters has literally shaped the Chinese reading brain. Similarly, much of how we think and what we think about is based on insights and associations generated from what we read.”[44]

Thus we can see how McLuhan’s aphorism begins to work. But the matter does not end there. According to Postman reading fosters rationality and the form of the printed book encourages what Walter Ong called “the analytic management of knowledge”.[45] Postman suggests that the printed text engages powers of classification, inference making and reasoning.

“It means to uncover lies, confusions, and over-generalizations, to detect abuses of logic and common sense. It also means to weigh ideas, to compare and contrast assertions, to connect one generalization to another. To accomplish this, one must achieve a certain distance from the words themselves, which is, in fact, encouraged by the isolated and impersonal text. That is why a good reader does not cheer an apt sentence or pause to applaud even an inspired paragraph. Analytic thought is too busy for that, and too detached.”[46]

Of course these forms of analysis and qualities existed in the scribal era which was predominated by an oral culture – and the modern jury is a creature, still, of oral culture – but Postman is suggesting that print enhanced and developed these qualities even further and resulted in the development of Typographical Man for whom the written and printed word achieved a dominance both consciously and, because of brain plasticity, subconsciously.

Sven Birkerts puts it this way

“The order of print is linear, and is bound to logic by the imperatives of syntax. Syntax is the substructure of discourse, a mapping of the ways that the mind makes sense through language. Print communication requires the active engagement of the reader’s attention, for reading is fundamentally an act of translation. Symbols are turned into their verbal referents and these are in turn interpreted. The print engagement is essentially private. While it does represent an act of communication, the contents pass from the privacy of the sender to the privacy of the receiver. Print also posits a time axis; the turning of pages, not to mention the vertical descent down the page, is a forward moving succession, with earlier contents at every point serving as a ground for what follows. Moreover, the printed material is static – it is the reader, not the book, that moves forward. The physical arrangements of print are in accord with our traditional sense of history. Materials are layered; they lend themselves to rereading and sustained attention. The pace of reading is variable, with progress determined by the reader’s focus and comprehension.”[47]

Lest one consider that the advent of the e-book or the Kindle will allow reading to continue unabated as before, Birkerts responds in this way:

“I’m not blind to the unwieldiness of the book, or to the cumbersome systems we must maintain to accommodate it—the vast libraries and complicated filing systems. But these structures evolved over centuries in ways that map our collective endeavor to understand and express our world. The book is part of a system. And that system stands for the labor and taxonomy of human understanding, and to touch a book is to touch that system, however lightly….

Literature—our great archive of human expression—is deeply contextual and historicized. We all know this—we learned it in school. This essential view of literature and the humanities has been—and continues to be—reinforced by our libraries and bookstores, by the obvious physical adjacency of certain texts, the fact of which telegraphs the cumulative time-bound nature of the enterprise.  We get this reflexively.

But reflexes are modified by use and need. As Marshall McLuhan argued decades ago, technology changes reflexes, replacing them with new ones. Our rapidly evolving digital interface is affecting us on many levels, not least those relating to text and information. We read and absorb as the age demands, and our devices set the pace. I was in a crowd at a poetry reading recently, eavesdropping on the conversation behind me. Somebody referenced a poem by Wallace Stevens but couldn’t think of the line. Her neighbor said “Wait—” and proceeded to Blackberry (yes, a verb) the needed words. It took only seconds. Everyone bobbed and nodded—it was the best of all worlds.”[48]

Thus are our thought processes dictated by the medium.

The Internet is at least as revolutionary a technology as the printing press was and it is no accident that I referred to our present information era as “The Digital Paradigm” because the new information systems that are available to us are as paradigmatically different from print as print was to the scribal culture.

The networked media is like an ecosystem – a community of organisations, publishers, authors, end users and audiences which, along with their environment, function as a unit. Until the advent of the Internet our media ecosystem was dominated by monolithic “one-to-many” media[49] that shaped discourse and dominated entertainment and sport. The established and largely centralised media had a significant impact upon public and private life and culture. The discourse was limited to what was approved for print or broadcast. The ecosystem has changed dramatically. The Internet now overshadows main stream media and the continuing use of computers and the computing power of the mobile phone will mean that the Internet will replace mainstream media as the “dominant species” within the media ecosystem.

In the same way that Birkerts expressed concerns at the decline of reading, others have developed a dystopian view of the networked world that in some ways focuses attention upon the nature of the changes that are taking place – the way in which the tool of the Internet is beginning to shape us, as McLuhan would have it. The Internet seems to erode the capacity for contemplation and concentration.

Nicholas Carr observed

“Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages. I get fidgety, lose the thread, begin looking for something else to do. I feel as if I’m always dragging my wayward brain back to the text. The deep reading that used to come naturally has become a struggle.”[50]

Yet the Internet is largely a text based system and it may well be that we are reading more. The problem is that the nature of what we are reading and the way that we process the material is changing – once again Wolf’s brain plasticity theory. She worries that the style of reading promoted by the Net, a style that puts “efficiency” and “immediacy” above all else, may be weakening our capacity for the kind of deep reading that emerged when an earlier technology, the printing press, made long and complex works of prose commonplace.[51] Could it be that, within the next few decades, our dependence upon digital information and Internet technologies will make us functionally incomptent to engage in reasoned decision-making unless we are plugged into or have immediate access to cyberspace?

All of this is a long way from the jury room but it does help to explain a few things. The combination of the qualities that Internet information possesses with the way in which the use of a new communications technology affects our dynamic thought patterns and cognitive ability means that the Internet becomes an essential information resource to which we are adapting – have become adapted? – and which will be the principal information resource for the Digital Natives as Encyclopaedia Britannica was for those born in the mid-twentieth century. The sense of loss expressed by Birkerts and Carr can be explained in terms of cognitive and thinking abilities which were developed in the print paradigm and which mourn its passing. The linear side-to-side verticality of reading and processing information becomes replaced with a hypertexted system of information that is not only dynamic in itself but encourages dynamic behaviour on the part of the users, as they switch from a webpage to instant messaging to email to a Skype session.

Lord Chief Justice Judge put this into the context of the jury trial when he wrote:

“Let me now consider my grandchildren. Not perhaps the youngest two, but the teenagers. They are technologically proficient. Much of their school work is done by absorbing information from machines. They consult and refer to the Internet. When they do so they are not listening. They do not, as we did, sit in class for 40 minutes listening to the masters and mistresses providing us with information. They are provided with information in written form, which they assimilate into their own technology.

Now, what this form of education lacks is training in the ability to sit still and listen, and I emphasise, listen and think, I repeat, listen and think simultaneously, for prolonged periods. Yet that is an essential requirement for every juror.”[52]

What is perhaps so dramatic about this passage is that His Lordship describes a trial system that depends upon orality as its focus, and perhaps what he fails to recognise is that the Digital Natives find such a means of absorbing information completely incompatible with the way in which their learning systems are becoming adapted as a result precisely of the technological proficiency to which His Lordship refers. The means of information gathering is radically different from that acquired from a book, as I suggest above and as Birkerts observes.

“Information and contents do not simply move from one private space to another, but they travel along a network. Engagement is intrinsically public, taking place within a circuit of larger connectedness. The vast resources of the network are always there, potential, even if they do not impinge on the immediate communication. Electronic communication can be passive, as with television watching, or interactive, as with computers. Contents, unless they are printed out (at which point they become part of the static order of print) are felt to be evanescent. They can be changed or deleted with the stroke of a key. With visual media (television, projected graphs, highlighted “bullets”) impression and image take precedence over logic and concept and detail and linear sequentiality are sacrificed. The pace is rapid, driven by jump-cut increments, and the basic movement is laterally associative rather than vertically cumulative. The presentation structures the reception and, in time, the expectation about how information is organised.

Further, the visual and non-visual technology in every way encourages in the user a heightened and ever-changing awareness of the present. It works against historical perception, which must depend on the inimical notions of logic and sequential succession. If the print medium exalts the word, fixing it into permanence, the electronic counterpart reduces it to a signal, a means to an end.”[53]

This is information ecosystem within which Digital Natives dwell and these are the factors that drive them to seek out new information horizons and to boldly go where Judges tell them not to.


[1] Richard K Sherwin, Neal Feigenson, Christina Spiesel “Law in the Digital Age: How Visual Communication Technologies are Transforming the Practice, Theory and Teaching of Law” (2006) 12 Boston University Jnl of Science and Technology Law 227.

[2] Richard Rorty “Foreword,” in Gianni Vattimo, Nihilism & Emancipation: Ethics, Politics, & Law (Columbia University Press, New York, 2004) p. xvii.

[3] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf  (last accessed 23 February 2012).  For a brief introduction the the development of Presnsky’s theory seeWikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012) – for further discussion see below Part 2; see also Sylvia Hsieh “’Digital Natives’ Change Dynamic of Jury Trials”  Mass Law Wkly 7 November 2010  http://www.legalnews.com/detroit/803882 (last accessed 24 April 2012).

[4] Ibid.

[5] Ibid.

[6] As Steve Jobs put it when the Apple computer was first came on the market “When Apple first started out, “People couldn’t type. We realized: Death would eventually take care of this.” Wall St Journal “All Things Digital” Conference April 2003, San Francisco. The report of the comments is at The Mac Observer Website “Steve Jobs: No Tablet, No PDA, No Cell Phone, Lots Of iPods” 4th June 2003 http://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/ (last accessed 5 April 2012)

[7] Judge Dennis M. Sweeney (Ret) “Worlds Collide: The Digital Native Enters the Jury Box” (2011) 1 Reynolds Courts and Media Law Jnl 121 at 130.

[8] The Internet therefore allows greater “democratisation” of information.

[9] Sweeney above n. 7  p. 131.

[10] Caren Myers Morrison “Jury 2.0” (2011) 62 Hastings LJ 1579 at 1581.

[11] Ibid.

[12] Ibid. p.1585-6.

[13] Shari S. Diamond, “Beyond Fantasy and Nightmare: A Portrait of the Jury” (2006)54 Buff. L. Rev. 717 750-51.

[14] http://www.safe-nz.org.nz/Data/database.htm (last accessed 11 April 2012).

[15] Morrison above n. 10  p. 1608-9.

[16] Ibid. p. 1612.

[17] Michael G. Wessells Computer, Self and Society (Prentice Hall, Englewood Cliffs, NJ, 1990)  p. 214

[18] Marshall McLuhan Understanding Media: The Extensions of Man (McGraw Hill, NY 1964)  In the first part of Understanding Media, McLuhan stated that different media invite different degrees of participation on the part of a person who chooses to consume a medium. Some media, like the movies, were “hot”—that is, they enhance one single sense, in this case vision, in such a manner that a person does not need to exert much effort in filling in the details of a movie image. McLuhan contrasted this with “cool” TV, which he claimed requires more effort on the part of the viewer to determine meaning, and comics, which due to their minimal presentation of visual detail require a high degree of effort to fill in details that the cartoonist may have intended to portray. A movie is thus said by McLuhan to be “hot”, intensifying one single sense “high definition”, demanding a viewer’s attention, and a comic book to be “cool” and “low definition”, requiring much more conscious participation by the reader to extract value.

Hot media usually, but not always, provide complete involvement without considerable stimulus. For example, print occupies visual space, uses visual senses, but can immerse its reader. Hot media favour analytical precision, quantitative analysis and sequential ordering, as they are usually sequential, linear and logical. They emphasize one sense (for example, of sight or sound) over the others. For this reason, hot media also include radio, as well as film, the lecture and photography.

Cool media, on the other hand, are usually, but not always, those that provide little involvement with substantial stimulus. They require more active participation on the part of the user, including the perception of abstract patterning and simultaneous comprehension of all parts. Therefore, according to McLuhan cool media include television, as well as the seminar and cartoons. McLuhan describes the term “cool media” as emerging from jazz and popular music and, in this context, is used to mean “detached

“Any hot medium allows of less participation than a cool one, as a lecture makes for less participation than a seminar, and a book for less than a dialogue.” Understanding Media p. 25. The “hot-cool” dichotomy fell out of favour after McLuhan’s death in 1980 and today is described as having a “charming, almost antique patina.” Paul Levinson Digital McLuhan (Routledge, New York, 2001) p.9. It is offered in this context as an example of the analysis which may be extended into technologies that were only just beginning to appear at the time of McLuhan’s demise.

[19] Morrison above n. 10  p. 1612.

[20] Jayne Gackenbach & Heather von Stackelberg, “Self Online: Personality and Demographic Implications”, in Jayne Gackenbach ed.Psychology and the Internet: Intrapersonal, Interpersonal, and Transpersonal

Implications (2d ed.) (Academic Press, Burlington MD 2007) p. 141, 160–61.

[21] Patricia R. Recupero, “The Mental Status Examination in the Age of the Internet” (2010) 38 J. Am.

Acad. Psychiatry L. 15, 19.

[22] In my view this dissociative aspect of the behaviour of Internet fraudsters is an aggravating factor in their crime. Unlike the “real world” cheque utterer, the Internet fraudster does not have to confront the victim face to face, often leading to a complete absence of empathy with the victim.

[23] Morrison above n. 10 p. 1614.

[24] David Gibson “Complexity and Social Networks Blog” March 23, 2009. http://blogs.iq.harvard.edu/netgov/social_psychology/ (last accessed 11 April 2012).

[25] Matt McCormick “Live Blogging Jury Duty” Action Items by Matt McCormick 20 July 2006. http://urbanhonking.com/actionitems/2006/07/20/live_blogging_jury_duty/ (last accessed 11 April 2012)

[26] Elizabeth Eisenstein The Printing Press as an Agent of Change – Communications and cultural transformations in Early Modern Europe (Cambridge University Press, Cambridge 1997) 1 Vol; Elizabeth Eisenstein The Printing Revolution in Early Modern Europe (Cambridge University Press – Canto Edition, Cambridge 2000).

[27] Ibid. The Printing Press as an Agent of Change  p. 71 et seq.

[28] New Media and the Courts: The Current Status and a Look at the Future. http://www.ccpio.org/newmediareport.htm  (Last accessed 27 February 2012) For continuing developments see http://ccpionewmedia.ning.com/ (Last accessed 27 February 2012).

[29] NZ Law Commission The News Media Meets ‘New Media’ – Rights, Responsibilities and Regulation in the Digital Age (Law Commission , Wellington, December 2011 Issues Paper 27) pp. 20 – 29.

[30] http://www.Internetarchive.org (last accessed 27 February 2012).

[31] http://wayback.archive.org/web/*/http://www.tvnz.co.nz (last accessed 27 February 2012). Archives for the Sydney Morning Herald go back as far as 31 December 1996. The Guardian is indexed back to 5 November 1996 although indexing ceases in 2008. Whilst the Wayback Machine may not be absolutely comprehensive, it does add another layer to the concept of information persistence and its presence is as a result of the permissionless innovation that the Internet allows.

[32] John Naughton From Gutenberg to Zuckerberg – What You Really Need to Know About the Internet (Quercus, London 2012) p.39-40.

[33] Clayton Christensen, Curtis W. Johnson. Michael B Horn Disrupting Class: How Disruptive Innovation Will Change the Way the World Learns (McGraw Hill, New Yotk 2008). http://www.claytonchristensen.com/disruptive_innovation.html (last accessed 11 April 2012).

[34] For a recent discussion of the architecture of the Internet see Barbara van Schewick Internet Architecture and Innovation  (MIT Press Cambridge Mass 2010). Cerf and Kahn’s protocol was based on the transmission of packets of data. The system was indifferent as to the content of the packets.

[35] A realisation of  “The Celestial Jukebox” as envisaged by Paul Goldstein Copyright’s Highway: The Lore and Law of Copyright from Gutenberg to the Celestial Jukebox ( Stanford University Press, Stanford CA 1994) “A technology-packed satellite orbiting thousands of miles above the Earth awaiting a subscriber’s order – like a nickel in the old jukebox, and the punch of a button – to connect him to any number of selections from a vast storehouse via a home or office receiver that combines the power of a television set, radio, CD player, VCR, telephone, fax, and personal computer” p. 199. See also John Naughton “The Joys of the Celestial Jukebox”  (The Observer, July 4 2004) http://www.guardian.co.uk/music/2004/jul/04/shopping.popandrock (last accessed 12 April 2012).

[36] Google’s mission is “to organize the world’s information and make it universally accessible and useful” http://www.google.com/about/company/ (last access 12 April 2012) .

[37] Although Facebook was not the first social networking site – others include MySpace, Bebo, Friendster and LinkedIn.

[38] “If men learn this, it will implant forgetfulness in their souls; they will cease to exercise memory because they rely on that which is written, calling things to remembrance no longer from within themselves, but by means of external marks. What you have discovered is a recipe not for memory, but for reminder. And it is no true wisdom that you offer your disciples, but only its semblance, for by telling them of many things without teaching them you will make them seem to know much, while for the most part they know nothing, and as men filled, not with wisdom, but with the conceit of wisdom, they will be a burden to their fellows.” Plato Phaedrus 275 a-b.

[39] Saint Bonaventura “A man might write the works of others, adding and changing nothing, in which case he is simply called a ‘scribe’ (scriptor). Another writes the work of others with additions which are not his own; and he is called a ‘compiler’ (compilator). Another writes both others’ work and his own, but with others’ work in principal place, adding his own for purposes of explanation; and he is called a ‘commentator’ (commentator) . . . Another writes both his own work and others’ but with his own work in principal place adding others’ for purposes of confirmation; and such a man should be called an ‘author’ (auctor).”

[40] Marshall McLuhan Understanding Media above n. 18.

[41] For a full discussion of the impact of the reading revolution see Neil Postman The Disappearance of Childhood (Vintage\Random House  New York 1994).

[42] Naughton From Gutenberg above n. 32 p. 24.

[43] Maryanne Wolff Proust and the Squid: The Story and Science of the Reading Brain (Harper Collins, New York 2007).

[44] Ibid. p.5.

[45] Cited in Postman The Disappearance of Childhood above n.41 at p. 51. See generally Walter Ong Orality and Literacy: The Technologising of the Word (Routledge, Oxford 2002).

[46] Neil Postman Amusing Ourselves to Death: Public Discourse in the Age of Showbusiness (Penguin Books, New York 1986) p. 51.

[47] Sven Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA, 1994) p. 122.

[48] Sven Birkerts “Resisting the Kindle” (The Atlantic March 2009). http://www.theatlantic.com/magazine/archive/2009/03/resisting-the-kindle/7345/ (last accessed 12 April 2012).

[49] Print, radio, television all shared these qualities.

[50] Nicholas Carr Is Google Making Us Stupid ( The Atlantic July/August 2008) http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/6868/ (last accessed 12 April 2012). See also generally Nicholas Carr The Shallows – How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010). The issue of  the impact of new information systems upon cognition is referred to (citing Carr’s article) in Nicole L. Waters & Paula Hannaford-Agor “Jurors 24/7: The Impact of  New Media on Jurors, Public Perceptions of the Jury System and the American Criminal Justice System” (unpublished) I am grateful to Ms Hannaford-Agor for a copy of the article which is to be published in a forthcoming encyclopaedia on criminology and criminal justice.

[51] Ibid.

[52] Rt Hon The Lord Judge “Jury Trials” (Judicial Studies Board Lecture, Belfast 16 November 2010) http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trials (last accessed 4 April 2012).

.

[53] Birkerts The Gutenberg Elegies above n. 47  p. 122-3.