Oct 9, 2012

The legal industry faces a steep internet learning curve

Efforts to thwart the impact of social media on the criminal justice system will fail. In the first of a two-part series, why the legal industry needs to accept that fact and adjust.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

Those complaining about the impact of social media on the criminal justice system, including the country’s chief legal officers, are missing the point, and doomed to fail in their efforts to do anything about it.


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31 thoughts on “The legal industry faces a steep internet learning curve

  1. Gavin Moodie

    Suppressing information before criminal trials and defamation are minor areas of legal practice. I therefore don’t see how ‘the legal system . . . faces the same fate as other industries based on such hierarchies — the content industry, or bricks-and-mortar retail, or mainstream media’.

  2. paul noonan

    Your point about the feasibility of stopping social media commentary about an accused before and during trial is valid. But you are too dismissive of the reasons the rules are there in the first place. It’s not about treating jurors and potential jurors as children, but it is about treating them as humans with normal human biases. If I tell a juror that an accused is a habitual criminal, the juror is naturally going to be more receptive to the suggestion that the accused has committed the crime he/she is currently accused of. If I tell the juror that the accused has committed the same sort of crime before, then the likelihood of bias is probably greater. These and other issues such as the rules governing hearsay evidence and eye witness evidence are real concerns if the aim is, as it should be, to make sure that people only get put in prison or fined heavily if they it can be shown beyond a reasonable doubt to have done what they’re accused of. I’m not syaing there’s an anwer, but it’s not enough to say that the problem is just one that has been manufactured to protect lawyers (disclosure – I am a lawyer but practice in commercial law).

  3. Clytie

    Well explained, Bernard. Those wishing to cling to previous power are making demands similar to expecting the PMG to control gossip over rural party-lines in the 1960s.


    The Net is a world-wide party line.

  4. Mike Shaw

    I am only half way through this magnificent and oh so poignant article and already the author has placed the great challenge to established community power bases right under the spotlight. Where it belongs…brilliant!

  5. Mr Pajama Pudding

    “What humans do” is share. This is an evolutionary mechanism. The internet is a perfect storm for evolution, whether that be Darwinian species evolution or social evolution. Species evolve over very long periods. Social mechanisms evolve faster, but nowhere near as fast as the many and varied tech revolutions which have changed the world over the past decade.
    In the absence of “updated behavioural guides”, humans revert to evolved behaviour. We have evolved to share. As long as the perceived cost of the transaction doesnt exceed the anticipated benefit, we will share. That’s why hundreds of millions freely share personal data (permanently) on facebook, linkedin etc – there is no perceived cost associated with sharing. It’s also why humanity seems to have collectively decided that copyright no longer matters.

  6. Jennifer Dillon

    Bernard, I don’t disagree with your comments. But please – a legal “industry”?? I am part of the legal profession. An important difference and one which many coming into its purview would do well to contemplate.
    Jennifer Dillon
    Barrister & Solicitor
    Melbourne, Victoria

  7. Karen

    BK, I agree with Paul Noonan as to the need to continue to minimise a jury’s exposure to prejudicial material that may stand to affect its assessment of material admitted under the rules of evidence.

    As to how this can be best achieved with the advent of electronic and social media that so easily transcends jurisdictional boundaries is, admittedly, another question. Another issue impacted by electronic and social media relates to the efficacy of state suppression orders, for example, to protect the identity of a victim or his/her relatives. Unfortunately, the law plays “catchup” and I think it will take some time for policy makers to formulate appropriate responses to the rise of social media, which as you say is yet another platform for the dissemination of news and information.

    In the meantime, the criminal justice system has a few tricks left up its sleeve. A judge (as the trier of law) is obliged to instruct a jury regarding its obligations, as the trier of fact, to only assess admissible material in making its assessments of witnesses and findings of fact. Part of those instructions would usually include directions not to read print media, observe electronic or social media in relation to the relevant matter that is being tried. Should it be revealed that a juror has attempted to inform himself outside of the trial setting by reading media commentary or going on an unauthorised ‘view’ (eg visiting a murder scene), this is a matter that is required to be brought to the attention of the judge who is then required to consider whether the defendant’s trial has been unfairly prejudiced in the circumstances. If such an assessment is made, a mistrial can occur, and the jury dismissed. The process starts again.

    In particularly high profile matters, such as the Jill Meagher case, the defence has a right to request ‘trial by judge alone’, which, in my view, would be the best way of dealing with them. Avoid the jury altogether.

  8. Martin Turner

    [You see, censors always have our best interests at heart — but interests as determined by them, based on existing mechanisms of social control like religion and law.]

    Yes, always implying they have our best interests at heart. This has so much connection to the proposed information data retention legislation it’s not funny. I am also left wondering if not much has changed since the days of Henry the V111th. I mean at the facia it would appear so, but those Royals have n’t given up so easily and it seems those embers from the fire are alive and bellowed.

    Thanks for this tremendous piece!

  9. zut alors

    A thought-provoking piece.

    The legal fraternity and industry will have great difficulty adapting to the revolutionary social lore of the 21st century. As a group they are still holding firm to 17th century head gear from the courts of Charles II.

  10. Barry Filipowski

    > The legal system is a mechanism of social control, but a necessary one.

    The problem is the adversarial system of justice is not engaged a search for the truth. Jurors want the truth, and they have a better idea of what the truth is than the lawyers and judges who try and lead them to a bullshit verdict. We would do far better with a Civil Law system.

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