Kids, Privacy and Social Media

In mid-December 2002 Mrs Marie Hosking, recently separated from her broadcaster husband, was photographed walking her children down a street in Newmarket, a suburb in Auckland. The photographer in question was one Simon Runting who had been commissioned by a woman’s magazine to take the photos for a proposed article. Both Mr and Mrs Hosking were very protective of the privacy of their children. They were entitled to their privacy. So Mr and Mrs Hosking commenced proceedings.

First they had to establish that there was a cause of action – a tort or civil wrong based around a right to privacy.

Secondly, if such a cause of action was available, did the circumstances of the case fall within it which would allow the Court to provide a remedy.

A full Bench of the New Zealand Court of Appeal agreed that New Zealand law recognised a tort of invasion of privacy. Tipping J expressed the tort in summary as follows:

I would therefore summarise the broad content of the tort of invasion of privacy in these terms. It is actionable as a tort to publish information or material in respect of which the plaintiff has a reasonable expectation of privacy, unless that information or material constitutes a matter of legitimate public concern justifying publication in the public interest. Whether the plaintiff has a reasonable expectation of privacy depends largely on whether publication of the information or material about the plaintiff’s private life would in the particular circumstances cause substantial offence to a reasonable person. Whether there is sufficient public concern about the information or material to justify the publication will depend on whether in the circumstances those to whom the publication is made can reasonably be said to have a right to be informed about it. (Hosking v Runting [2005] 1 NZLR 1 at para [259]

However, although the Hoskings were successful in establishing that there was a right to privacy which could be invaded, the Court held that in this case there was no expectation of privacy and they failed to establish a breach of privacy. As Tipping J succinctly put it

I am of the view that neither Mr and Mrs Hosking, nor the children themselves, had a reasonable expectation of privacy in the photographs in question. They were taken in a public place. There is no evidence which satisfies me that publication would be harmful to the children, either physically or emotionally. There is, in my view, no greater risk to the safety of the children than would apply to a photograph of any member of society taken and published in a similar way. Any other conclusion would be based on speculation rather than reasonable inference from evidence. I doubt whether many members of society would regard the Hoskings as having expectations of privacy in current circumstances in respect of their children. I cannot accept that any such expectation as might be held would be reasonable in all the circumstances. I cannot see how it can reasonably be said that publication of these photographs should be regarded as likely to cause substantial offence or other harm to a person of reasonable sensibility. (Hosking v Runting [2005] 1 NZLR 1 at para [260]

The facts of Hosking’s case were clear and not in dispute and involved a claim against another actor for privacy infringement – the photographer was a person who was entering what Hosking claimed was a zone of privacy for the children and intended, by publication of the photos, to extend that zone to a wider audience. The case fell upon the fact that in a public place – a street – there is no expectation of privacy.

The Internet and Social Media present a set of circumstances which challenge the use and control of personal information.

One phenomenon that has attracted some publicity is that of parents who place details of their family life on-line and especially include photographs of their children. Now this seems to run entirely counter to the approach of the protagonists in Hosking v Runting who wanted to keep their children OUT of the public eye.

Two recent articles highlight the issue.  One – “The Rise of the Instamums”  is about a number of individuals who place carefully selected and curated photos of their children online and who manage to make a bit of money in the process with endorsements and product placement. The other, from Australia – “How Roxy Jacenko Inadvertently Became a Pin-Up Girl for Oversharing on Social Media” – demonstrates the dangers that may arise.

Like anything that is posted on social media, once it is there, it is there – the concept of the document that does not die.

The other issue is that once content has been posted, one loses control of it, so that it may be modified and doctored, as was the case with images of Ms Jacenko’s daughter Pixie.

Ms Jacenko, a PR consultant, has been criticised for commercialising her child, but apart from that there seem to be a number of other issues which arise particularly in the context of privacy which need to be considered.

Control and privacy is particularly relevant. Privacy is all about what information or aspects of one’s personal life one is prepared to disclose or share with others. There may be a number of reasons for disclosing such information, much of it to do with self-image, definition, how one wants to be viewed in society and the like. Social media may interfere with that significantly. Images of children, posted for the purposes of pride or as a form of journal of a child’s progress  may be hi-jacked for nefarious purposes (or worse). They may serve to identify a child and possibly provide associated information that may help to locate a child who may be of interest to one who, shall we say, has other than the best interests of the child at heart.  And then the photos can be used for revenge or harassment or abuse.

One hesitates to draw an analogy between the on-line and the real word – they are so different – but it has been observed that posting pictures of children online is the same as walking down a street passing out those pictures to complete strangers. When viewed in that light the posting of photos of children online takes on a different and indeed somewhat sinister dimension.

A propos of the “document that does not die” life for all of us goes on. The carefully curated photos of a child posted by a proud parent may, in a few year’s time, become a considerable source of embarrassment as the child grows into maturity. The photos could become the source of taunts, shaming or cyberbullying. It is doubtful that the target of such behaviour would relish the presence of his or her pictures on-line.

Given the ability to search out information within this everlasting informational context, it may well be that New Zealand law will have to develop a “Right to be Forgotten” to enable these kids as adults to attend to their own self-definition.

Privacy for children is something about which  Mr and Mrs Hosking were concerned. The Court held that there was no expectation of privacy in a public street. Likewise, there is no expectation of privacy on a social media site. Perhaps kids should have that private space within which to grow and develop. And then they can make the choice about whether photos of them remain in the family album at home or online.

Facebook Friends on Appeal – Murray v Wishart

In an earlier post I discussed the decision of Courtney J in Wishart v Murray and dealt specifically with the issue of whether the “owner” of a Facebook page was the “publisher” of defamatory comments made on that page by third parties. The case was appealed to the Court of Appeal (Murray v Wishart [2014] NZCA 461). The judges unanimously held that a third party publisher – that is the owner of the Facebook page that contains comments by others – was not liable as publisher of those comments. They rejected the suggestion liability should attach because the owner of the page “ought to have known” that there was defamatory material, even if he or she was unaware of the actual content of the comment. The Court adopted a more restrictive approach, holding that the host of a Facebook page would only be liable as a publisher if there was actual knowledge of the comments and that there was a failure to remove them in a reasonable time in circumstances which could give rise to an inference that responsibility was being taken for the comments.

However, the approach of the Court, and its apparent recognition of some of the problems posed by the new Digital Paradigm, is of particular interest. In addition the decision leaves open other aspects of publication on platforms other than Facebook such as blogs.

The Background to the Case

Mr Wishart was the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner’s report found that the twins had died while in Mr Kahui’s sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.

Mr Murray learned of the impending publication of Mr Wishart’s book in June 2011. He established a Facebook page called “Boycott the Macsyna King book.”  He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people.

Mr Wishart commenced proceedings for defamation. He alleged a number of instances but one cause of action related to a claim against Mr Murray in relation to third party statements made by persons posting comments on the Facebook page. This post will be restricted to the way in which the Court dealt with that cause of action.

In the High Court Mr. Murray applied to strike out this cause of action. He was unsuccessful for the extensive reasons and analysis given by Courtney J and discussed in an earlier post. Hence, he appealed.

The Approach of the Court

The Court started by considering the following test applied by Courtney J and articulated by her as follows:

Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory. (Para 117)

This holding identified two tests – the “actual knowledge” test and the “ought to know” test. It was argued for Mr Murray that the actual knowledge test should be the only test for publication. As a first stet the Court considered how the Facebook page worked. This is an important and necessary first step in determining the proper application of existing rules. The Court said (at para 84)

An analysis of the positions taken by the parties requires a careful consideration of exactly what happened in relation to the Facebook page and on what basis it is pleaded that Mr Murray became the publisher of the statements made by third parties on the Facebook page. Although Courtney J described those posting messages on the Facebook page as “anonymous users”, that was not correct on the evidence. In fact, most of the users who posted allegedly defamatory statements identified themselves by name, are named in the statement of claim and could be traced by Mr Wishart if he wished to take action against them. So his action against Mr Murray is not the only potential avenue for redress available to him, though it was obviously more practical to sue Mr Murray for all the offending comments rather than sue many of those commenting for their respective comments.

The Court went on to discuss the way in which the page was set up and operated by Mr Murray. It noted that Courtney J had noted that Mr Murray not only could, but did, take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate, and also blocked particular individuals whose views he considered unacceptable. She found that he could not, therefore, be perceived as a “passive instrument”. Furthermore, Courtney J found that Mr Murray blocked Mr Wishart and his supporters from the Facebook page, which made it more difficult for Mr Wishart to identify and complain about potentially defamatory material. This impacted upon whether Mr Murray ought to have known of the defamatory postings.

The Use of Analogy

After considering the factual background to Courtney J’s finding, the Court went on to consider the legal path by which she reached her conclusion, her reliance upon the decision in Emmens v Pottle (1885) 16 QBD 354 (CA) and discussed at length the various decisions to which she referred. The Court then made the following significant comment  (para 99):

The analysis of the cases requires the Court to apply reasoning by strained analogy, because the old cases do not, of course, deal with publication on the internet. There is a question of the extent to which these analogies are helpful. However, we will consider the existing case law, bearing in mind that the old cases are concerned with starkly different facts.

The Court then went on to consider the factual background to a number of cases that had been discussed by Courtney J. (paras 100 – 123) and the decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47 which was decided after Courtney J’s decision. That case considered whether a host of an internet discussion forum is a publisher of defamatory statements posted by users of the forum. Although the main focus of the decision was on the availability of the innocent dissemination defence, the Court also considered whether the forum host was a publisher. It rejected the analogy with the notice board or graffiti cases, because in those cases the person posting or writing the defamatory comment was a trespasser. Since the forum host played an active role in encouraging and facilitating the postings on its forum, they were participants in the publication of postings by forum users and thus publishers.

The Court of Appeal then considered the various authorities that had been referred to by Courtney J and found that they provided limited guidance because the particular factual situation before the Court had to be the subject of focus. The reason for this was that the Court’s analysis of the authorities showed how sensitive the outcome may be to the particular circumstances of publication, and the fact that many of the authorities related to publication in one form or another on the internet did not provide any form of common theme, because of the different roles taken by the alleged publisher in each case.

The Court went on to examine the drawing of analogies , especially from authorities which did not involve the Internet. While noting that analogy is a helpful form of reasoning they may not be useful in particular cases. The Court observed that it was being asked to consider third party Facebook comments as analagous with:

  1. the posting of a notice on a notice board (or a wall on which notices can be affixed) without the knowledge of the owner of the notice board/wall;
  2. the writing of a defamatory statement on a wall of a building without the knowledge of the building owner;
  3. a defamatory comment made at a public meeting without the prior knowledge or subsequent endorsement or adoption by the organiser of the meeting

The Court then considered the circumstances in Emmens v Pottle which established that a party can be a publisher even if they did not know of the defamatory material. The holding in that case was that a news vendor who does not know of the defamatory statement in a paper he or she sells is a publisher, and must rely on the innocent dissemination defence to avoid liability.

The Court of Appeal considered that news vendor in Emmens v Pottle did not provide an apposite analogy with a Facebook page host. It observed that a news vendor is a publisher only because of the role taken in distributing the primary vehicle of publication, the newspaper itself. This contrasts with the host of a Facebook page which is providing the actual medium of publication, and whose role in the publication is completed before publication occurs. The Facebook page is in fact set up before any third party comments are posted.

So was the Facebook page more like the “notice on the wall” situation described in Byrne v Deane [1937] 1 KB 818 (CA)? This analogy was not perfect either. In Oriental Press Group the Court found that posting a notice on a wall on the facts in Byrne v Deane  was a breach of club rules and therefore amounted to a trespass. The Court of Appeal did not consider that the breach of the club rules was a factor affecting the outcome but rather that the club and its owners had not posted the defamatory notice and, until they became aware of it, were in no position to prevent or bring to an end the publication of the defamatory message. If a case arose where the defamatory message was posted on a community notice board on which postings were welcomed from anyone, the same analysis would apply. Furthermore, in Byrne v Deane the post was truly anonymous. There was no way by which the person posting the notice could be identified. In the case of the Facebook host, posting messages in response to an invitation to do so is lawful; and solicited by the host. Similarly, the Facebook host is not the only potential defendant whereas in Byrne v Deane, as has been observed, the poster of the notice could not be identified.

The Court also considered that drawing an analogy between a Facebook page and graffiti on a wall was also unhelpful. The owner of the wall on which the graffiti is written is not intending that the wall be used for posting messages. A Facebook host is.

One argument that had been advanced was that an analogy could be drawn with a public meeting – although there is a danger in equating the physical world with the virtual. It was argued that if Mr Murray had convened a public meeting on the subject of Mr Wishart’s book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others’ statements himself. The court felt the analogy was useful because it incorporated a factor that neither of the other two analogies do: the fact that Mr Murray solicited third party comments about Mr Wishart’s book. In addition speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. However, the public meeting analogy is not a perfect one in that statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page but it did illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting.

Problems with the “Ought to Know” Test

The Court then expressed its concerns about the “ought to know” test and Facebook hosts. First, an “ought to know” test put the host in a worse position than the “actual knowledge” test. In the “actual knowledge” situation the host has an opportunity to remove the content within a reasonable time and will not be a publisher if this is done. In the “ought to know” case publication commences the moment the comment is posted.

What happens when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment? On the “actual knowledge” test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the “ought to know” test he or she is a publisher as soon as the comment is posted.

Another concern was that the “ought to know” test makes a Facebook page host liable on a strict liability basis, solely on the existence of the defamatory comment. Once the comment is posted the host cannot do anything to avoid being treated as a publisher.

A further concern involved the need to balance the right of freedom of expression affirmed in s 14 of the NZ Bill of Rights Act 1990 against the interests of a person whose reputation is damaged by another. The Court considered that the imposition of the “ought to know” test in relation to a Facebook page host gives undue preference to the latter over the former.

A fourth issue concerning the Court was that of the uncertainty of the test in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk.

Finally the innocent dissemination test provided in s. 21 of the Defamation Act would be difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all aimed at old media and appear to be inapplicable to internet publishers.

Thus the Court concluded that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher.

Thus the decision clarifies the position for Facebook page hosts and the test that should be applied in determining whether such an individual will be a publisher of third party comments. But there are deeper aspects to the case that are important in approaching cases involving new technologies and new communications technologies in particular.

The Deeper Aspects of the Case

The first is the recognition by the Court of the importance of understanding how the technology actually works. It is necessary to go below the “content layer” and look at the medium itself and how it operates within the various taxonomies of communication methods. In this regard, it is not possible to make generalisations about all communications protocols or applications that utilise the backbone that is the Internet.

Similarly it would be incorrect to refer to defamation by Facebook or using a blog or a Google snippet as “Internet defamation” because the only common factor that these application have is that they bolt on to and utilise the transport layer provided by the Internet. An example in the intellectual property field where an understanding of the technology behind Google adwords was critical to the case was Intercity Group (NZ) Limited v Nakedbus NZ Limited [2014] NZHC 124.. Thus, when confronted with a potentially defamatory communication on a blog, the Court will have to consider the way in which a blog works and also consider the particular blogging platform, for there may well be differences between platforms and their operation.

The second major aspect of the case – and a very important one for lawyers – is the care that must be employed in drawing analogies particularly with earlier communications paradigms. The Court did not entirely discount the use of analogy when dealing with communication applications utilising the Internet. However it is clear that the use of analogies must be approached with considerable care. The Digital Paradigm introduces new and different means of communication that often have no parallel with the earlier paradigm other than that a form of content is communicated. What needs to be considered is how  that content is communicated and the case demonstrates the danger of looking for parallels in earlier methods of communication. While a Facebook page may “look like” a noticeboard upon which “posts” are placed, or has a “wall” which may be susceptible to scrawling graffiti it is important not to be seduced by the language parallels of the earlier paradigm. A Facebook “page” or a “web page” are not pages at all. Neither have the physical properties of a “page”. It is in fact a mixture of coded electronic impulses rendered on a screen using a software and hardware interface. The word “page” is used because in the transition between paradigms we tend to use language that encodes our conceptual understanding of the way in which information is presented. A “website” is a convenient linguistic encoding for the complex way in which information is dispersed across a storage medium which may be accessible to a user. A website is not in fact a discrete physical space like a “building site”. It has no separate identifiable physical existence.

The use of comfortable encoding for paradigmatically different concepts; the resort often to a form of functional equivalence with an earlier paradigm means that we may be lured in considering other analogous equivalencies as we attempt to try to make rules which applied to an old paradigm fit into a new one.

The real deeper subtext to Murray v Wishart is that we must all be careful to avoid what appears to be the comfortable route and carefully examine and understand the reality of the technology before we start to determine the applicable rule.

Facebook Friends: 3rd Party Comments and Publication for Defamation

When will the host of a Facebook page become a publisher of comments by third parties for the purposes of a defamation action? This was the issue which confronted Courtney J in the case of Wishart v Murray.( HC AK CIV-2012-404-001701 19 March 2013)

The background to the case was this. In a high profile case a young man by the name of Chris Kahui was charged with the murder of his twin baby children. He was acquitted after a highly publicised trial. During the trial he suggested that the babies’ mother, Macsyna King, had inflicted the fatal injuries. Although a coroner later found that the twins had died while in Mr Kahui’s sole care, this suggestion retained some currency in the public arena.

The plaintiff, Ian Wishart, an investigative journalist and writer, wrote a book about the case entitled Breaking Silence. Ms King collaborated in the writing. As publication of the book became imminent  the first defendant, Christopher Murray, established a Facebook page called “Boycott the Macsyna King Book”. He posted comments on Twitter and on the Facebook page criticising Mr Wishart and Ms King.

Mr Wishart commenced defamation proceedings against Mr and Mrs Murray. One of the causes of action related to comments made by third parties that were posted on the Facebook page. The cause of action could only succeed if (among other things) Mr Murray was found to be a publisher of those postings. Mr Murray maintained that, as a mere host of a Facebook page, he could not, at law, be the publisher of statements that he did not author. Mr. Murray applied to strike out this cause of action (along with others with which this post is not concerned).

The issues to be determined were these:

1. What is the correct legal test  for determining whether the host of a Facebook page is the publisher of statements posted on it by other users.

2. Whether, on the facts as pleaded and the non-contentious evidence that was before the Court  Mr Wishart had a tenable case in respect of Mr Murray’s ability as the publisher of comments posted by others on the Facebook page.

The Role Played by Mr Murray

The Court first considered Mr. Murray’s role and the creation of the Facebook page. Mr. Murray outlined the position in his affidavit in this way:

4. While I created the Facebook page, the site is not mine as such. Facebook offers users the ability to create pages, but retains ownership of the service base and ultimate control over the contents. Content on these pages is published using Facebook processes.

5. Comments can be posted on Facebook pages by other Facebook users. The creator of any individual Facebook page is unable to exercise meaningful editorial control over comments before they are posted. That is, there is no function on Facebook by which a site creator can vet comments before they are published.

6. It is correct, however, that a creator of a Facebook page has some control over comments published on the page as he/she can, once aware of comments published, retrospectively remove individual comments and block specific Facebook users to prevent them from publishing further comments.
7. It should be noted, howeve, that a block on a user functions only in respect of the relevant Facebook account. It cannot prevent the relevant individual from establishing a new Facebook account and post further comments.

8. Contrary to the plaintiff’s allegations I did at no point encourage, invite or consent to, abusive, threatening or defamatory comments being posted on the site and I did take steps to moderate any such comments that I became aware of.

9. The information section included my Twitter account to allow people to contact me. Once it became apparent that some comments posted were abusive I posted comments on the site myself asking that viewers report such comments to me via the Twitter account so that I could block the relevant users. I received around ten reports that way and acted on all of them.

10. I also regularly visited the site, read comments published on it and blocked users who posted abusive or clearly defamatory comments. All in all, I banned 50 users from the page so as to moderate abusive comments.

11. The site attracted some 250,000 in total, which was far more than I ever expected. As a result, it was increasingly difficult to review them all and remove all potentially abusive or defamatory comments. Facebook also uses an auto-update function. This means that the site is constantly updated with new comments while you view it, which refreshes the screen in a way that makes it very time consuming and difficult to keep track of existing comments when they are so frequently being supplemented. Given the number of comments and the speed with which they were posted, this made it slow and difficult to review historic comments and block relevant users.

12. I finally took the site off line on or around 13 August 2011

In a further affidavit Mr. Murray acknowledged that he had blocked Mr. Wishart’s ability to post comments on the site and explained it in this way:

However the purpose of doing this was not to prevent Mr Wishart from telling his side of the story. His comments, and those of some of his supporters generated a significant number of responses, including some abusive and inappropriate comments. Once it became apparent to me that this occurred I blocked Mr Wishart and a small number of his vocal supporters as a way to discourage misuse of the page. To keep the debate as balanced as possible I posted links to pages setting out Mr Wishart’s version of events (see for example p36 of exhibit A5 to Mr Wishart’s affidavit in support of his statement of claim dated 28 March 2012).

At para 24 of his 30 May 2012 affidavit Mr Wishart alleges that he alerted me to alleged inaccuracies on the Facebook page at a time when I had fewer than 200 people registered on the page. I am uncertain as to what Mr Wishart means by “registered”. I do, however, have no recollection of Mr Wishart contacting me about any inaccuracies. In any event, I do not believe that any statement of which I am the author is defamatory of Mr Wishart. I also blocked any users who posted abusive or otherwise inappropriate comments as soon as possible after becoming aware of such comments having been posted.

What is the Test to Determine Whether the Facebook Host is Publisher of Other Users” Statements

The Judge stated the general principle that a person who participates in or contributes to the publication of another person’s defamatory statement is, prima facie, liable as a publisher, subject to the defence of innocent dissemination and which was stated in the case of Emmens v Pottle (1885) 16 QB 170. However in that case – which dealt with the sale of a newspaper that contained libellous material – the defendants did not know that the paper contained a libel. They were unaware of the content of the medium that they were disseminating. Lord Esher in Emmens made the following remark which Courtney J considered significant.

I am not prepared to say that it would be sufficient for them to show that they did not know of the particular libel … Taking the view of the jury to be right, that the defendants did not know that the paper was likely to contain a libel, and what’s more, that they ought not to have known it, having used reasonable care – the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel.

In this statement the issue becomes clear. Publication is one thing and innocent dissemination may be entirely another. But can publication take place without knowledge of the content OR of that fact that it has been made available? Given that defamation is a strict liability tort the answer would appear plain. But the new technology introduces a factual matrix which may differ from those conceived in the print paradigm , and which require examination. It is for this reason that Courtney J focussed upon Mr Murray’s statements about how the Facebook page worked.

In essence the Judge reasoned by analogy from earlier cases. After an extensive review and discussion of relevant authority, Courtney J considered that the notice board analogy is apt in considering publication via Facebook. She found that the host of a Facebook page establishes the digital equivalent of a notice board and has the power to control content by deleting postings and to block users.

She held that hosts of such pages will be regarded as publishers of postings made by anonymous users if,

1. They know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it (a request by the person affected is not necessary), and

2. Where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.

Thus the contention that Murray was the publisher of the defamatory statements was tenable.

Is this a different outcome to the well established distinction that arose between moderated and unmoderated bulletin boards in the classic cases of Stratton Oakmount Inc v Prodigy Services Co (1995 WL 323710 (NY Sup Ct 1995)) and Cubby Inc v Compuserve Inc (776 F Supp 135 (SD NY 1991))?  In Cubby the ISP Compuserve provided an online information service which allowed subscribers access to electronic bulletin boards, interactive online conferences and topical databases.

Management of these fora was contracted out to a third party which had the power to review, delete, edit and generally control content in accordance with editorial standards established by the defendant. The manager had, in turn, engaged an independent contractor to provide a daily newsletter.

Compuserve successfully resisted a defamation action based on statements made in the newsletter on the basis that it had no knowledge of the statements and was a distributor only, rather than a publisher. The Court accepted that the defendant had no greater editorial control over what was published in the newsletter than any public library or bookstore and was the “functional equivalent” of a traditional news vendor.

Courtney J, in considering Cubby, observed that the holding was inconsistent with Emmens v Pottle which held that a library or a bookstore could be a publisher, but could have recourse to the innocent dissemination defence. Another factor was that the reasoning on Cubby was based on the constitutional guarantees of freedom of speech and the press as precluding strict liability for publication. Courtney J concluded:

This decision does not, therefore, assist in identifying a test that might fit into the existing parameters of UK and New Zealand common law.

Courtney J also discussed Stratton Oakmount. In that case the factual matrix differed from that of Cubby in an important respect in that the defendant Prodigy moderated and exercised a different extent of control over the content that appeared on its bulletin boards.

The facts were that Prodigy, the defendant, maintained a bulletin board service and had a company policy that the general content of the bulletin board would reflect family values. It developed content guidelines and removed material that it considered unacceptable. These controls were found to put Prodigy in a significantly different situation from the defendant in Cubby and resulted in Prodigy being a publisher. Interestingly, the issue of knowledge does not seem to have been a factor in the decision and the case seems to have proceeded on the basis that Prodigy did not have actual knowledge of the postings that were the subject of the action. It was the decision to assume a level of editorial control that was critical. The Court in Stratton Oakmount observed:

By actively utilising technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and “bad taste”, for example, PRODIGY is clearly making decisions as to content … And such decisions constitute editorial control. If such control is not complete and is enforced both as early as the notes arrive and as late as the complaint is made, does not minimise or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role in determining what is proper for its members to post and read on its bulletin boards. Based on the foregoing, this Court is compelled to conclude that for the purposes of Plaintiffs’ claims in this action, PRODIGY is a publisher rather than a distributor …
It is PRODIGY’s own policies, technology and staffing decisions which have altered the scenario and mandated the finding that it is a publisher. PRODIGY’s conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice.

However, a consequence of this approach was that it would be safer for ISP’s or content providers to avoid any suggestion of editoral control. The Court in Stratton Oakmount rejected this as a serious risk on the basis that it “incorrectly presumes that the market will refuse to compensate a network for its increased control and the resulting increased exposure”. Nevertheless, the difficulties faced by website hosts controlling huge volumes of postings, led to legislation in the US (Section 230 Communications Decency Act 1996) which protects interactive computer services in relation to the publication of information by third parties.

Thus the Courts in the United States had adopted an “editorial control” test, akin to that exercised by newspaper proprietors. A different approach was suggested by Cynthia Counts and Amanda Martin in an article entitled “Libel in Cyberspace: A framework for addressing liability in jurisdiction issues in this new frontier” (1996) 50 Alb L. Review 1083. They referred to two pre-Internet cases from the United States – Heller v Bianco (111 Cap App 2d 424 (1952)) and Tacket v General Motors (836 F 2d 1042 (7th Cir 1987)) These have been referred to as “graffiti cases” arising from their facts.

In Heller the Court of Appeal of California held that the proprietors of a tavern were liable for the publication of a defamatory statement inscribed on the men’s bathroom wall after the bar-tender was told of it and failed to remove it. The knowledge that was regarded as sufficient was the knowledge of the barman, attributed to the proprietors. However, the issue of liability was determined upon the basis of a breach of a duty. This approach is not permitted in New Zealand (see Bell-Booth Group v AG [1989] 3 NZLR 148)

Tacket concerned a sign affixed outside a motor vehicle plant. The Judge cited from both Hellar and distinguished it on the basis of the “steep discount” that readers tend to apply to statements on restroom walls and the cost of frequent re-paintings. He went on to say:

A person is responsible f or statements he makes or adopts, so the question is whether a reader may infer adoption from the presence of the statement. That inference may be unreasonable for a bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls of a manufacturing plant over which supervisory personnel exercise greater supervision and control. The costs of vigilance are small (most will be incurred anyway) and the benefits potentially large (because employees may attribute the statements to the employer more readily than patrons attribute graffiti to barkeeps).

Given the actual knowledge on the part of the defendants  it seems unlikely that liability based on assumption of responsibility could have been established without it.

The approach adopted by Counts and Martin in their Law Review article was that applying these cases by analogy, knowledge of defamatory postings on a website would be a pre-requisite for liability as a publisher. They said:

In Hellar and Tacket courts considered knowledge by the defendants and the defendants’ allowance of the statement to remain, to be critical. In Scott the Court added the requirement that for imposition of liability to be proper, the defendant must somehow invite the public to read the allegedly libellous statement.
Applying these principles to cyberspace publishing would result in potential liability if the sysop [systems operator] were aware of an allegedly libellous posting and undertook some action to ratify the communication. Conversely, these principles show that a sysop’s cyberspace activity would not result in potential liability if he does not know of the posting or did not take any action to ratify the communication.

In its 1999 report “Electronic Commerce Part 2”. The Law Commission recommended a test that required actual knowledge based on the so-called “graffiti principle” derived from a line of US cases and ejected as unfair and not feasible an alternative test based on the extent of editorial control. It was significantly influenced by the risks that flowed from the approach taken in Stratton Oakmont v Prodigy and considered that the “degree of editorial control approach” was undesirable because it would discourage screening for offensive material and such a test was not sufficiently precise to provide a predictable criteria on which ISPs could base their practices.

However, what has happened in England is that the law has developed to a position consistent with the approach in Emmens v Pottle, although that development has not been without controversy.

The line of cases referred to by Courtney J starts with the well-known case of Godfrey v Demon Internet [2001] QB 201 and Bunt v Tilley [2006] EWHC 407 (QB), both of which concern the liability of ISPs. What should be observed is that in fact Bunt v Tilley mitigates the somewhat rigorous position adopted by Morland J in Godfrey. Secondly, as Courtney J observed, the position of an ISP is quite different from that of a Facebook page host. However she considered the decisions are significant in the development of the law as it stands in relation to website hosts. It is encouraging to see the recognition by the Judge of the difference between the various types of activity on the Internet, rather than attempt to consider the matter as an overarching set of principles applicable to the Internet in general.

In Godfrey the defendant internet service provider offered a “Usenet” facility which allowed subscribers to access bulletin boards from the internet service provider’s news server. Demon was notified of a defamatory posting and asked to remove it. It could have done so immediately but did not. The posting remained on the news server for a further 10 days or so until it expired.

Moreland J rejected Demon’s argument that it was merely the owner of an electronic device through which postings were transmitted and not to be regarded as a publisher. He allowed the application to strike out the defence that the defendant was not a publisher. The claim only applied to that period of time after notice had been given and the Judge noted that the defendant had an editorial function:

I do not accept [the] argument that the defendant was merely the owner of an electronic device through which postings were transmitted. The defendants chose to store “soc.culture.thai” postings within its computers. Such postings could be accessed on that news group. The defendant couild obliterate and indeed did so about a fortnight after the receipt.

Then he went on to make a more generalised statement about the common law position regarding publication, suggesting that Demon would have been a publisher without knowledge of the defamatory statement:

At common law liability for the publication of defamatory material was strict. There was still publication if the publisher was ignorant of the defamatory material within the document. Once publication was established the publisher was guilty of publishing the libel unless he could establish, and the onus was upon him, that he was an innocent disseminator.

That general comment caused a considerable amount of concern within the internet community, although it should be observed that Godfrey was a case involving an interlocutory application to strike out a defence and did not address the substance of the claim (which was later settled). It dealt with a preliminary albeit necessary element of the tort of defamation.

The decision in Bunt v Tilley took a different approach, perhaps bringing into play a little progress and an understanding of the way in which information flows take place on the Internet. Bunt v Tilley was not concerned with material that was hosted by an ISP but with content of which the ISP was a carrier and in respect of which the ISP played a passive role. Eady J made the observation, referring to Emmens v Pottle :

….for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.

I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence … There a defence is needed because the person is regarded as having “published”. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers; thus they do not need a defence.

Eady J took this approach forward in two further cases that he decided. In Metropolitan International Schools Ltd v Designtechnica Corporation ([2009] EWHC 1765 (QB), [2011] 1 WLR 1743) he considered the cases of Google’s liability for the automatic function that was provided by its search engine of providing “snippets” from other websites in response to search enquiries by users. Eady J held Google’s function as a search engine, with no human input into the selection of snippets shown, meant that it could not be regarded as a publisher of them. The automatic process together with the lack of human or editorial control seemed determinative. But the judge went further. He considered that, even after notification of defamatory material, Google was still not a publisher because of its lack of control over future searches that might continue to throw up offending material.

This approach was continued in the case of Tamiz v Google [2012] EWHC 449(QB) although this case did not deal with search results but an entirely different utility offered by Google that it made available on the Internet. The service offered was called Blogger. It allowed any Internet user to create an independent blog. Courtney J observed that it was similar to the service offered by Facebook by which people could create and control their own Facebook page. As a starting point I agree with the Judge, but is is there that the similarity end, for much depends upon the way in which a user configures a blog or a Facebook page. Furthermore, there is a difference between a service provider and the host of a Facebook page. The reality of the matter is that the real host of the page is Facebook and the creator of the Facebook page uses Facebook’s hosting facilities.

In Tamiz, Eady J held that in its role as a platform provider Google was entirely passive. It had a policy of not removing offending material even when notified, but merely passing the complaint onto the blogger concerned. Although Eady J made no reference to the graffiti principle established in the US, he nevertheless likened Google’s position to that of the owner of a wall that had been graffitied in that, although the owner could have it painted over, its failure to do so did not necessarily make it a publisher.

Tamiz went on appeal to the English Court of Appeal and the developing principles in the  line of cases developed by Eady J  mitigating the strictness of defamation law for Internet hosts hit a “speed bump”.  The Court held that, although Eady J’s conclusion in Bunt v Tilley that an ISP was not a publisher was correct in the circumstances of that case, Google could not be regarded as a purely passive communicator of information in the case of Tamiz.

The Court of Appeal observed as follows:

[23] … I respectfully differ from Eady J’s view that the present case is so closely analogous to Bunt v Tilley as to call for the same conclusion. In my view the Judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google in relation to continued publication of the comments in issue.
[24] By the Blogger service Google Inc provides a platform for blogs, together with the design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its choice and it can readily remove or block access to any blog that does not comply with those terms … As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.

[25] By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge or, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article, nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed …

[26] I am also very doubtful about the argument that Google Inc’s role as that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory: Emmens v Pottle (1885) 16 QBD 354, 357-358; Vizetelli v Muddie’s Select Library Ltd [1990] 2 QB 170, 177-180; Bottomley v S W Woolworth & Co Ltd (1932) 48 TLR 521. There are differences in the reasoning in support of that conclusion but the conclusion itself is clear enough. The principle operated in Bottomley to absolve Woolworth from liability for publication of a defamatory attack in a consignment of remaindered American magazines that it distributed; the company did not check every magazine for defamatory content, there was nothing in the nature of the individual magazine that should have led it to suppose that the magazine contained a libel and it had not been negligent in failing to carry out a periodical examination of specimen magazines. Since it cannot be said that Google Inc either knew or ought reasonably to have known of the defamatory comments prior to notification of the appellant’s complaint, that line of authority tells against viewing Google Inc as a secondaary publisher prior to such notification. Moreover, even if it wer to be so regarded, it would have an unassailable defence during that period under s 1 of the 1996 Act considered below

The Court then referred to the decision of Judge Parkes QC in Davison v Habeeb [2011] EWHC 3031 (QB) In that case Google was sued in respect of defamatory statements posted on a blog hosted by Google itself. The Judge distinguished Bunt v Tilley, although the distinction would be obvious because Google, in posting statements on a blog would fill the role of content provider, whereas Bunt v Tilley was concerned not with a content provider but and ISP – a content carrier, demonstrating the importance of distinguishing between the nature of the services provided and the protocols used on the Internet. That point was recognised by Judge Parkes QC

Blogger.com, by contrast, is not simply a facilitator, or at least not in the same way as the ISPs. It might be seen as analogous to a giant noticeboard which is in the fifth defendant’s control, in the sense that the fifth defendant provides the noticeboard for users to post their notices on, and it can take the notices down (like the club secretary in Byrne v Deane) if they are pointed out to it. However, pending notification it cannot have the slightest familiarity with the notices posted, because the noticeboard contains such a vast and constantly growing volume of material. On that analogy, it ought not to be viewed as a publisher until (at the earliest) it has been notified that it is carrying defamatory material so that, by not taking it down, it can fairly be taken to have consented to and participated in publication by the primary publisher. The alternative is to say that, like in Demon Internet in the Godfrey case, it chose to host material which turned out to be defamatory and which it was open to anyone to download so that at common law it was prima facie liable for publication of the material, subject to proof that it lacked the necessary mental state.

Perhaps the distinction demonstrates the fact that not all of the services offered by Google may comfortably fall under a generalised “Google” rule. However, Davison is helpful because it addresses the nature of blog publication, and the circumstances under which liability may attach.

In Tamiz, Google could not be considered a passive provider. Richards LJ picked up on Judge Parkes QC’s approach in Davison, observing as follows:

[33] … I have to say that I find the noticeboard analogy far more apposite and useful than the graffiti analogy. The provision of a platform for the blogs is equivalent to the provision of a noticeboard; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the noticeboard and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the noticeboard. Most importantly, it makes the noticeboard available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms.
[34] … Those features bring the case in my view within the scope of the reasoning in Byrne v Deane. Thus, if Google Inc allows defamatory material to remain on a Bloggerblog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for the continued presence of that material on the blog and thereby to have become a publisher of the material. Mr White QC submitted that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane makes such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint. Those are certainly matters fore argument but they are not decisive in Google Inc’s favour at this stage of proceedings where we are concerned only with whether the appellant has an arguable case against it as a publisher of the comment in issue.

Thus the creation of a blog on the Blogger platform is not a passive activity, according to Courtney J. As far as the provider of content is concerned that is clear. According to Courtney J, although Tamiz dealt with Google’s liability it is implicit that parties who actually create and control the content of the blogs are also to be regarded as publishers of comments posted on them once they know or ought to know of them. Courtney J also made reference to the Australian case of Trkulja v Google [2012] VSC 533 where it was held that the proposition that an ISP cannot be a publisher was rejected because it would cut across the principles that have formed the basis for liability in the news agent/library type cases, and the cases in which the failure by a person with the power to remove defamatory material gives rise to an inference of consent to the publication.

Trkulja dealt with aspects of the Google search engine. One aspect dealt with the provision of images as a search result and some unflattering images that suggested that Mr. Trkulja had associations with the Melbourne criminal fraternity. The other aspect dealt with search results that led to further information suggesting criminal associations on the part of Mr Trkulja. Now the reality behind Trkulja is that it deals with an aspect of the principal service offered by Google and that is its search engine. In providing this service Google is not an ISP. In fact, Google in fulfilling its role as a search engine a form of content provider, although direct human intervention with the results of a search is not present. Search results derive from the algorithms created and employed by the Google programmers. Beach J dealt with the publication aspect of a Google search as follows:

In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.

What then about knowledge? Does the “publication test” require actual knowledge of the defamatory statement? The cases discussed so far suggest otherwise and certainly such a proposition would be inconsistent with Emmens v Pottle. The “notice board” cases assisted Courtney J in her approach.

The starting point is the case of Byrne v Deane ([1937] 1 KB 818 (CA)). This case concerned an anonymous notice that was posted on the noticeboard of a gold club. The club rules prohibited notices being posted without the secretary’s consent. The defendants had seen the notice but did not remove it. The Court of Appeal held that those with control over the noticeboard were publishers of material posted on it if it could be inferred that they had taken responsibility for it. They had the power to remove the notice and failed to do so.

Greene LJ observed:

It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me to be this: having regard to all of the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it has been put?

Byrne v Deane was followed by the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council & Anor. ((1991) Aust Torts Reports 69). This case concerned defamatory posters glued to bus shelters under the defendants’ control. The defendant had actual knowledge of the posters and had been requested to remove them. Courtney J considered that Urbanchich held that there should be proof of facts from which the fact-finder could infer that the defendant had taken responsibility for, or ratified, the continued publication of the statements. The defendant in Urbanchich did in fact have actual knowledge and was asked to remove the material but treating these facts as prerequisites for the defendant to be treated as a publisher does not accurately reflect the reasons for the decision.

Byrne and Urbancich were followed in New Zealand in Sadiq v Baycorp (New Zealand) Ltd. (HC Auckland CIV-2007-404-6421, 31 March 2008). The plaintiff complained of defamatory statements regarding his creditworthiness on a debt collector’s website. The material had been placed on the website by the previous owner of the website. Doogue AJ considered that the defendant in that case had to know of the material for the inference to be drawn that it had taken responsibility. He made the following comment about publication:

The key to whether Byrne can be extrapolated to this case, essentially depends on whether inferences can possibly be drawn that the first defendant possessed knowledge of the defamatory statement and the ability to bring about its cessation, leading to a final inference that failure to do so indicates that the first defendant in some way allies itself with the statement …
… it would not seem to be logically possible to conclude that a defendant was complicit in the publication, in the absence of knowledge that the publication had actually occurred. Where the facts are simple – the defendants could see with their own eyes that the offending notice has been attached to the wall as in Byrne – the inference may readily arise. The position, however, may be different in a case where, as here, the defendants’ actual knowledge that there had been a publication is moot.
Publication in this case would have occurred when subscribers to the website accessed Mr Sadiq’s file … It is not sufficient for the plaintiff to invoke a vague concept such as that the defendant took over the debt collection files of its predecessor, which predecessor had been responsible for actual publication. There would need to be evidence that some human agent of the defendant adverted to the presence of the statement on the website and nonetheless took no steps for its removal.

This seems to equate at least with an awareness of content existence athough not necessarily the content of the content (if I may put it that way) In resolving the authorities Courtney J said:

[L]imiting the circumstances in which a defendant is to be viewed as a publisher of other’s statements to those in which the defendant had actual knowledge is not consistent with Emmens v Pottle; under the general principle I respectfully think that the defendant in Sadiq ought to have been viewed, prima facie, as a publisher, with the real issue being whether it either knew or ought to have known that the publication contained a defamatory statement for the purposes of the innocent dissemination defence.

Courtney J’s Conclusion

Courtney J considered that the analogy of the notice board applied to considering whether the host of a Facebook page is a publisher. The host of such a page may establish what is essentially a noticeboard which may be public and to which anyone may post comments or which may be private and restricted to posting from a specified group. In either case the host may control content and delete postings and may also block users. Furthermore she held that those who host Facebook pages are not passive instruments (as was the case in Bunt v Tilley which ,as noted, dealt not with content providers but content carriers) or mere conduits of content on the page. She held that there are two circumstances where they will be publishers of content.

1.If they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary.

2.Where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.

So was it possible to argue that Mr Murray was a publisher of the anonymous comments. The Judge’s starting point was Mr Murray’s affidavit. He couldn’t control the posting of comments (other than blocking access to individuals) but he had considerable control over whether or not they remained. In his affidavit it was clear that he not only could, but did take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate. He also blocked particular individuals whose views he considered unacceptable. Mr Murray could not, on the available evidence, be viewed as a passive instrument. The auto-update facility used by Facebook presented Mr Murray with some problems but it did not prevent him from culling abuse or inappropriate postings – it only slowed down the process.

The Judge found two other significant aspects. The first was that Mr Murray blocked access to the page by Mr Wishart and his supporters which had the effect of making it difficult for Mr Wishart to identify defamatory content. The second was that Mr Wishart had warned Mr Murray bout defamatory positings. ALthough this fact was in dispute it appears that there was a level of dialogue ebtween Mr Murray and Mr Wishart. Depending upon the ultimate factual finding that issue might also be relevant to whether Mr Murray should have known that defamatory postings were being made.

Thus, within the context of the strike out application, Courtney J was satisfied that the pleading that Mr Murray was a publisher of the anonymous statements was tenable.

Comments

The decision of Courtney J is important for a number of reasons.

1. In approaching the application of existing law to the new information paradigm one of the important tools of analysis is whether or not an existing rule can be applied if not directly, then by analogy. If that approach fails or provides an inconclusive outcome, one must then go behind the rule and attempt to ascertain the policy reasons for the rule in attempting to locate the problem within existing policy and the set of rules that surround it. Courtney J’s decision is a clear example of the analogy approach. She adopts a conventional legal position, disposing of the various alternative arguments or dispensing with those that do not add up. Rather than deal with the matter on the basis of authority that derives from the digital paradigm itself, she reasons by analogy, using authorities decided in the pre-digital paradigm and applies the principle accordingly. Her approach cannot be criticised. It is a near-perfect example of the way in which the common law allows for development and adaptation.

2. The second matter of importance is the way in which Courtney J reviewed the various lines of cases on publication, and importantly, her analysis of the Internet cases. This case provides a useful coverage of the various cases that have been decided in this area and synthesises the threads of principle that have developed. Although the American line of Cubby and Stratton Oakmount do not apply in New Zealand for a number of reasons, the discussion undertaken by the Judge on these and on other cases points to the reasons why. By the same token, both those cases suggest some overarching approaches and helpful tests that can be considered. The function of moderating comment is present in Wishart and plays a role.

However, the authorities sometimes cover aspects of Internet defamation rather than presenting a “bright line” rule applicable to all. For example the cases of Godfrey and Bunt v Tilley apply to ISPs who host material on their servers. There are substantial differences between an ISP – a provider of Internet services – and the individual host of a Facebook page. In that respect the Google cases seem to represent a halfway house between ISP-type providers on the one hand and services built on the Internet backbone such as those provided by Google on the other. The Trkulja case considers Google as publisher by way of an information provider – providing search results by way of human created algorithms. Given the findings in that case, one wonders whether the case of Metropolitan International Schools Ltd v Designtechnica Corporation (the snippets case) would be decided in the same way in Australia. As matters stand at present its seems to me that outcomes will differ depending upon the position occupied by a potential defendant in the Internet framework.

3. The third point is that, like other cases in this area such as Godfrey and Gutnick this was an interlocutory or procedural matter. It had to do with whether or not, given certain extant facts, it was arguable that Murray was a publisher. The case did not decide the point as a factual matter. This a significant pouint because it means that although it is more likely than not that later cases will be decided in a similar way, the developments of the law in this area must be incremental and must depend upon individual factual circumstances. The variety of circumstances that present themselves in the new communications technologies that are present means that a variety of different fact situations will need to be considered. What this case decides is that in the circumstances before the Court Mr Murray was not only a publisher of his own material – and that does not seem to be at issue – but that he was responsible for the content that was published on the Facebook page that he hosted. It was not necessary for him to know the quality of the content that was posted in the same way that the bookseller or the newspaper seller does not need to know the quality of the content in the book or newspaper, but only that there is content present. Mr Murray did go a step further and vetted the third-party content and took some of it down. Thus the issue went beyond awareness of mere content and covered quality of content.

I now want to step  away from the legal analysis and looks at the nature of the Facebook page and its purposes and raison d’etre. What I argue is that by an analysis of the purpose of the technology, one arrives at the same result.

The Law Commission in its Issues Paper  “News Media meets New Media” in December 2011 made the following observation:

In essence, the web has placed the tools of publishing in the hands of every individual with access to it. And, just as critically, platforms such as Facebook, which now boasts over 700 million users worldwide, allow those individual voices to connect and aggregate, creating virtual global “communities of interest”. Thanks to the disruptive nature of the web, these cyber crowds are capable of wielding levels of power and influence hitherto reserved for the mass media and those with access to traditional sources of economic and political power.

The medium in which this great proliferation of publishing is taking place possesses a set of quite unique characteristics which together help explain the game-changing nature of this technology. These include the following:

  • publication on the internet is both instantaneous and global;
  • once published, digital content is virtually un-erasable;
  • users can publish and participate in online activities without revealing their real identities;
  • there is an almost infinite capacity to store data of every kind, from the millions of “tweets” broadcast each day, to the world’s largest libraries;
  • the development of powerful search engines and web browsers allows instant, and perpetual, retrieval of this data, the vast bulk of which can be accessed freely;
  • the decentralised architecture of the internet and the speed and frequency with which data is saved, copied, cross-referenced, routed and re-routed around the globe makes the system highly resistant to attempts to control how users behave or to interrupt or prevent the uploading and downloading of content from the vast network of servers and computers which comprise the web.

The properties of the new communications technologies enabled by the Internet and especially by the web are directed to just that – communication. In addition the Internet has enhanced communication between users by virtue of the quality of permissionless innovation which allows entrepreneurs to “bolt on” a utility or an application and “see how it flies”. The early internet community centres such as Usenet news groups gave way, with the introduction  of Web 2.0, to interactive websites and the rise of Social Media of which Facebook was one.

The very nature of social media is to enable people to communicate with one another, and although initially this was grounded in the continuation of “real-world” associations in cyberspace, the reality is that social media often allow for “cyber-relationships” to develop between people who have never met. More recently social networks have been seen as an opportunity for commercial entitles to market products and operate as another form of web presence for the purposes of brand identification, customer feedback and interaction.

Social media sites allow for a number of differing forms of communication between the host (the person who creates the site) and those who visit the site or wish to maintain an association with it (friends is the term on Facebook). The ability to post messages, make comments, post photos, mark and forward photos, for friends of friends to participate and many many more are all possible in the realm of social media.

But the most fundamental purpose of social media is the communication of information within a group. The size of the group may be very small or apocalyptically large. The purpose remains the same – the communication of information. And within the legal context that amounts to publication – making information available to a wider group. Within the context of defamation, the size of the group may be relevant for certain purposes, but this does not detract from the overall purpose of social media. In that respect, there is little difficulty in concluding that the host of a social media site or a Facebook page is a publisher of information that he or she posts there.

A host may allow others to comment or put up posts. The extent of the ability of others to post material depends upon the way in which the host has configured the site. For example, this blog is set up so that comments on posts are referred to me before I will allow them to be posted. This is a good thing because most of the comments that I receive are spam and marketing material that would clog this site and reduce its usefulness. And, of course, by allowing a comment to become public and available to readers, I am a publisher in the most absolute sense of the word. Not only do I allow the content to go onto the site, but I also exercise an editorial power, and evaluate the content of the comment.

This is part and parcel of the overall communicative purpose of a Facebook page or any other social media. Communication necessarily involved publication to the communicants, and, in the case of a Facebook page, that may be to anyone who accesses the page. If the host of the page chooses to allow comments to be posted and does not undertake editorial or moderating activity, what has happened is that he or she has provided a means by which people may comment, and in this respect Justice Courtney’s notice board analogy is apt. But even without the analogy the host, by providing the means by which others can post their views, takes on responsibility as publisher. This is not a case of a neutral carrier, as was the case of the ISP in Bunt v Tilley. The Facebook page is specifically created for a communicative purpose. The whole function to is communicate and to enable others to do so. Knowledge or awareness of the precise nature of the content is not necessary. In the case of Wishart, the Facebook page was put up for the specific purpose of protesting against the publication of Mr. Wishart’s books and to encourage people not to buy it. It was by no means a “passive” site. Its purpose was to communicate Mr. Murray’s point of view and that of others who wished to be associated with it.

Thus, if one looks at a Facebook page from a purposive perspective, one reaches the same point as did Courtney J when she used the tools of conventional legal analysis.

Note:

The issue of on-line defamation is not an easy one. The principles of defamation law – and especially libel law [including the use of seditious libel to silence or tio intimidate protest] – developed within the context of the print paradigm. For example, William Prynne faced proceedings for seditious libel arising from the publication of a book that he wrote entitled Historiomastix in 1632 and for which he was tried before Star Chamber in 1634. The history if libel has been largely associated with printed content and concepts such as publication and dissemination have developed within the properties or qualities of that particular information technology. As I have argued elsewhere, digital communications technologies have entirely different or enhanced properties or qualities. It is suggested that as the law continues to develop in this area, these properties or qualities will come into play.

In a future post I intend to revisit the area of defamation law and will deal with the issue of whether posting a link to an article containing defematory content is publication. Watch this space

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].

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.