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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.


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.

This is a long piece explaining why.

Let’s go back a little bit. Back to 1543, in fact. That year, English monarch Henry VIII was deeply worried. The tenets of Martin Luther, fueled by English translations of the Bible, not to mention his own break with Rome and dissolution of the monasteries, were spreading throughout England. “Many arrogant and ignorant persons had taken upon them not only to preach, teach, and set forth the same by words, sermons, and disputations,” Henry complained, “but also by printed books, ballads, plays, rhymes, songs and other fancies, subtly to instruct the people, and especially the youth of the kingdom, otherwise than the Scripture ought to be taught.”

Henry had a special responsibility. If he allowed heretical doctrines to flourish within his kingdom, he was culpable in the eternal damnation of the souls of those led astray.

So, to protect Christianity, he banned reading, and discussing, the Bible.

Individual English translations had been banned before, but now reading any Bible was outright banned by the Act for the Advancement of True Religion. The only exception outside the Church were “noblemen and gentlemen” and “noble and gentle women”. For everyone else, the penalty was one month in prison for reading the Bible, aloud or silent, in public or private. Similarly, anyone who publicly discussed the Bible could be locked up for a month.

Move forward about 470 years. Last Friday, our own attorneys-general gathered to discuss, inter alia, “Cyberbullying and Trolling” and announced that there would be discussions “between governments, law enforcement agencies and social media operators” and that federal Attorney-General Nicola Roxon would develop “options to improve cooperation between law enforcement agencies and online social media providers.”

It comes in the context not merely of the recent confected outrage about trolling but alarm about the impact of social media in relation to the Jill Meagher case. Yesterday, Victorian Attorney-General Robert Clark threatened Facebook with legal action on that matter.

Clark, his ministerial colleagues, police and commentators complaining about the impact of social media are no different, not in any significant way, from Henry VIII. They want to stop the unstoppable in the name of protecting people.

But wait, I can hear every lawyer reading this say: the right to a fair trial is fundamentally different to the religious bigotry of an early modern monarch.

Really? Well, first things first: there’s an assumption that public commentary about an individual accused of a crime prejudices their right to a fair trial. But that is merely an assertion by the legal industry. It’s an immensely powerful one, because it’s on the basis of this hypertrophied sense of prejudice that the industry, from judges through to prosecutors and defence lawyers, have been able to build an entire edifice of information control centuries old, in which information is rigorously guarded from the community and reserved for those trusted to be able to use it correctly.

As part of that, jurors in criminal trials are reduced to the level of children, carefully shielded from information they are not trusted to use properly. Indeed, they can be punished by courts if they actually try to find out information about a trial on their own initiative, unguided by judges and lawyers.

To state all this is not to pass judgment on it. The legal system is a mechanism of social control, but a necessary one. And there may well be validity to the claims of the legal industry about the need to control information, that unrestrained public discussion of a criminal case prejudices the right of a defendant to a fair trial — although the claim is more often asserted than backed up with evidence.

Undoubtedly most lawyers believe strongly in the importance of protecting the right to a fair trial. So Henry VIII believed he had a special responsibility to protect his subject from eternal hellfire.

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.

But the internet flattens information hierarchies, and the legal system is one giant information hierarchy. It faces the same fate as other industries based on such hierarchies — the content industry, or bricks-and-mortar retail, or mainstream media. The internet is going to steamroll it. It’s already done it repeatedly to the UK legal institution of the superinjunction.

Again, to state this isn’t to pass judgment on it. It doesn’t matter what you, or I, or anyone thinks about this. That you approve of one hierarchy, like one we’re told protects the rights of an accused criminal, and not another, like say the copyright cartel, is of no moment. The internet will destroy the information hierarchy that underpins your industry. It will hurt people, throw people out of jobs, make life miserable for some. Our approval or lack thereof is irrelevant.

And efforts to stop it will look like those of Henry VIII to ban reading and discussing the Bible.

The point missed by the attorneys-general and those complaining about the right to a fair trial is the same one missed over and over again by those who take up arms against social media, and by many who defend it, and that is to see the technology, the software, as the key issue, rather than what people are doing with it. People are merely using such platforms to do what they did before the internet, only on a wider scale: to form communities, to form relationships, to debate, fight, trade, share news, entertain one another.

That’s what humans do.People always “risked the right to a fair trial” by talking amongst themselves about crime. Lynch mobs were very much a pre-internet phenomenon. The conviction of Lindy Chamberlain took place in an Australian entirely untainted by the evil presence of social media. They — we — talked in pubs, across backyard fences, in workplaces about the case. The only difference now is that we talk online, to wider communities.

But that’s the difference, some will assert. It’s all now in public, not private, available on a computer or phone screen for millions to see. But there is no difference of significance: such conversations were always conducted in our communities; it’s merely that communities now exist free of geography and it’s easier for people to join them from anywhere.

And because they’re conducted online as well as off, a category error is made, because many people only understand social media as a form of traditional media. In fact social media is a mechanism of interconnectedness that, purely incidentally — almost as collateral damage, if you like — can provide the same function as traditional media, but that’s not its true purpose or significance.

Thus is created the misperception that risks to a fair trial taking place on social media can be regulated like risks to a fair trial in traditional media — which, of course, has ruined many a trial in a way that you strangely don’t hear discussed in the current debate about Facebook. Would-be regulators and commentators go looking for the equivalent entities via which traditional media was regulated — the social media equivalent of publishers. Thus the focus on Facebook, for instance, in the Jill Meagher matter.

But this repeats the error of confusing the platform for what people do with it. Facebook is not the publisher of anything except dodgy prospectuses. People are merely using Facebook to do what they always did in their communities.

In our case, overlaying this error is a kind of jurisdictional nationalism, in which parochial Australians get upset because the perceived “publishers” exist outside Australian legal jurisdiction.

This of course leads to the problem of the efficacy of regulation. After all this time, would-be regulators have cottoned onto the fact that regulating the internet is hard. Instead, they increasingly talk of voluntary codes of behaviour and self-regulation to tempt companies that have no more than a passing interest, if that, in what Australian courts or lawmakers think about them, to comply.

Even this approach is doomed to fail. How many social media sites are there? What even is a social media site? Sure there’s Twitter and Facebook, but there’s also non-Anglophone equivalents of Western platforms such as Sina Weibo, Skyrock or Cyworld as well; there are once-popular legacy sites that have been reborn with other functions (Friendster); there are boutique platforms like Blackberry Messenger, there are gaming platforms accessible via XBox 360 and PS3 that permit in-game chat and live talk on a global basis; there are innumerable chat applications and chat functions of communications platforms such as Skype; blogging applications like WordPress and microblogging applications like Tumblr that allow text-based communication, collaborative tools like Pastebin and Google Docs, instant messaging clients with encryption capabilities like Adium, and comparatively ancient communications platforms based on IRC.

And chances are, one or two of the top five social media apps of 2017 don’t even currently exist. Good luck regulating social media when you can’t even define it or name the companies you deem “publishers” of it.

The alternative regulatory approach, one favoured by the content industry, is to directly pursue individuals who threaten traditional information hierarchies. But this is problematic on a mass scale, and costly even on an exemplary punishment basis — one of the reasons why would-be regulators default to demanding pseudo-publishers (whether it’s Facebook, or ISPs) engage in enforcement for them, rather than actual authorities.

The result, as we’ve seen repeatedly, is that enforcement aimed at preventing the disruption of information hierarchies fails, and the industries suffering disruption must eventually accept that they have to switch to an alternative business model, or more commonly watch as new digital native entrants do it for them and steal their revenues. And that alternative business model always involves handing power to consumers, or perhaps more correctly recognizing that power has shifted to them.

The legal industry remains at the earlier stage of this learning curve. It still believes it can, and should, use regulation to prevent the disruption of its control of information. It’s understandable — the legal industry has successfully operated on this basis for centuries. More than any other industry, certainly more so than the content industry, or the media, this is an industry that has successfully used regulation as a tool to maintain its own control, often to the benefit of society. But it, too, will fail.

The quicker the legal industry accepts the impacts of social media are irremediable and works out how to cope, the better. But no industry confronted with the flattening impact of the internet has yet been able to accept the logic that it must surrender part of its power. And the legal industry is less likely to do that than any industries that have previously faced the challenge.

*Tomorrow: why the mainstream media can’t handle “cyberbullying” either



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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.

  11. Martin Turner

    “Your comment is awaiting moderation.”

    What possible justification would that be? Guards!..seize him!

  12. tinman_au

    Excellent article Bernard.

    It’s very insightful that you include MMOG’s/games as “social media”, I think a lot of journalists miss it, but that’s how I heard the news of 9/11 (I was running through a town in Asherons Call when all the US players started shouting about “America is under attack!!!”).

    I know, even with it’s current flaws, I’d prefer “trial by jury” to “trial by media”. Trial by media you’d be drowned at sea in a chaff bag for telling a “lie” :/

    Surly jury selection mitigates this issue to a degree though?

  13. Chess C

    BK, you’ve echoed my thoughts exactly. There’s no putting the genie back in the bottle. Trying to censor social media isn’t going to work. Even if FB and Twitter eventually fall into line, there will always be new social media platforms. And then there is the emergence of peer-to-peer social media platforms, which have no central servers or points of control (such as Diaspora) and which no one will ever be able to control.

    Another historical example is the invention of the telegraph. In France you used to be able to bet on horse races in England which had happened the day before. With the invention of the telegraph, people sent coded messages, to convey the winner of a horse race before the offical sources were updated. Initially the authorities tried to clamp down on the telegrams. This of course failed. Eventually, they just updated the system so that you could not bet on races which had already been run.

    Of course I am not arguing against the presumption of innocence, or against a defendant’s right to a fair trial. But the legal industry, I mean profession, will need to rethink how these principles can be achieved in the new era where information is unsuppressable.

  14. Hugh (Charlie) McColl

    Chess C, interesting examples but I’m not sure we should leave it only to the legal profession to “…rethink how these principles can be achieved in the new era where information is unsuppressable”. Our whole society is currently having that conversation. We haven’t really got a handle on where it’s going yet. Rules will be changed in a mishmash of individual decisions – as happens everywhere when you don’t know what you’re trying to regulate. It’s not so much about putting the genie back in the bottle as getting a rider, any rider, back on the horse. There’s no finish line, it’s cross-country and no one’s been there before. How exciting!

  15. Salamander

    I’m not a lawyer. But I assume a function of the legal process is to bring reason to bear on the lynch mob, thereby supporting civil society.

    Social media seems to be or at least to include, the lynch mob multiplied and amplified.

    So I think the law, and hence civil society, have a problem.

  16. Salamander

    Why am I being moderated?

  17. Chess C

    @Salamander – Crikey’s being ironic – censoring commentary on an opinion piece arguing against censorship.

  18. Hamis Hill

    So the industry of delivering justice is not an “industry” because it is a monopoly of the “Crown”?
    In feudal societies the King’s justice is only a monopoly because the peasants have been stripped of their weapons of defence and the King has a monopoly of the sword of justice.
    This is what the crusade, under a papal banner, by Wlliam the Bastard did to the inhabitants of pre-1066 England.
    Social media is now delivering justice to the likes of Alan Jones through the power of the pen, electronic or otherwise.
    Looks like the peasnats have gotten their weapons back.
    “Justice” is served?
    By the way not all the inhabitants of the British Isles were ‘Bastardised” by William of Normandy and his “Pope”.
    So why is 21st century Australia still under “English” law?
    Where’s the Justice in that?

  19. Mark Gregson

    I think the article misses a major and significant point. As BK states, you have to go back in history to find the reasons why. But only as far back as the first era of mass media – the era of radio and early television and Pathe news reels.

    The media of that era took on the role of informing the public on war conflicts (WW2, Vietnam, Falklands) that a nation had involvement in, and has continued to do so ever since (Iraq 1 (Kuwait), Bosnia, Iraq 2, Afghanistan) and in doing so crucially acquired the status as ‘the’ authority and link to the nation as being one of truth and accuracy. Indeed the BBC once held the esteem of the world for only reporting fact.

    Social media is riding on the back of that now washed out authority and reputation, but the public, in general, do not have the head to disseminate what they read, or to differentiate.

    They believe everything they read as fact. The reason courts – not the ‘legal industry’, agree to suppression orders is to ensure a fair trial so that the jurors only base their decisions on the facts. The facts will only be revealed in court during the trial. Any background noise from social media or ‘news’ contaminates that evidence and facts.

    I agree with BK – social media is an unstoppable freight train. But all that is required is a wide reaching campaign to educate the general public of it’s effects and the limited affects that it should have, thus putting social media in its correct context. The whole thing is nothing more than chatter amongst the masses, as BK states. It has no authority or credibility. (Nor does this comment btw). It is nothing more. An educated public
    can then interpret what they read without bias.

    When an issue or the chatter on a subjent is so vast that a referendum is demanded whcih results in policy change to reflect the opinion of the majority, then society forms and decides the direction and manner in which it wishes to evolve and the rules by which to live by. Until that time, society has placed that trust in the separation of powers. Not in You-Twitt-Face.

  20. Hamis Hill

    The justice industry is only a monopol-y because after William of Normandy, under a papal banner, reduced the pre-1066 English to the fate of conquered infidels-feudal slavery- only the King had a sword and the subsequent monopol-y on the delivery of justice.
    Now the peasants have gotten their weapons back in the form of the pen and that original “Basta-rd’s’ monopol-y on the delivery of justice has been broken.

  21. guyallen@optusnet.com.au

    A really well though-out piece and perspective. Congratulations.

  22. Greg Jones

    Every time a monolith like the Legal Industry has it’s parameters shifted I can’t help but feel that we the people are a little bit more empowered. The way Keane has linked all these pieces and factoids is far can awesome.

    @Hamis – Interesting point re the judicial monopol y and the Normans. Done a bit of study there meself.

  23. Greg Jones

    That would be Normands.

  24. Andybob

    If a jury learns of a defendant’s prior convictions, they will convict on that basis, not the evidence before them. That’s not supposition or paranoia. It’s how everyone makes decisions every day. So if BK is right the status quo is untenable and we have to give up either trial by jury or a verdicts based on the evidence rather than a person’s record. Which do you want to lose ?

  25. Gavin Moodie

    Another possibility is to dispense with jury trials and try defendants before a judge alone. This is already allowed in some cases at the election of the defence and may have to become more common.

  26. Hamis Hill

    Unfortunatel-y Mark Gregson’s chattering masses will remain uneducated about the law whilever the present “Industry”, defending its own narrow interests, maintains its “majestic” monopol-y on the delivery of justice.
    This seems to be maintained by a “Black-out” on history.
    How many of the chattering masses reali-se that some of the laws regulating local government were written by Juli-us Caesar-Lex Municipalis Julianus ?
    How many in the Anglosphere real-ise that their obsequious forelock tugging to authority was the result of two hundred years of the suppression of the Anglo-Saxons (The Investment of Englishry)after the Norman “crusade”?
    The genius of the Pax Romana was the expectation that justice would be delivered without citizens having to take it into their own hands.
    The irony is lost on many that slaves do not have the capacity to take justice into their own hands because unlike the formerly free Anglo-Saxons of the Christian Church of Alfred The Great they do not have the weapons that confer true citizenship.
    Seems that the peasants are revolting as happened in Germany with Luther’s Bible hence Henry’s suppression of reading. And so on. History- (especiall-y that of the law) a Black Hole from which no information escapes? Who might wish this so? And continue to act to make it so?

  27. Hamis Hill

    To the moderaters, can you please modify your arrangements to allow words like formerly to escape instant moderation?
    Who hard can it be?

  28. Cross Byron Douglas

    Back in the day when juries first took their place in English common law, communities were very small. As a result juries of their peers almost always knew who the villans were and were charged with their task because the powers that be knew they would make the “right” decisions. Seems to me in these times where communities are not beholden to geography we have come full circle.

  29. AJH

    I’m not sure I’d call the demands of the legal community comparable to those of the media or content industries.

    Those industries wanted to control the internet because they needed to do so to survive. The legal industry wants control because they believe they know what is best, and want to preserve their age-old rules that have worked in the past.

    The reality is, they can’t control internet discussion. The catch-cry at the birth of the internet in the late 1980s and early 1990s was “information wants to be free”. That is as true as ever.

    Nobody will ever be able to control information flows on the internet. It is a technology that does one thing well – allow communication and information dissemination on a huge scale. It is an unstoppable force.

    The legal profession needs to now assume that there will be discussion of any criminal case before it goes to trial, and work out ways to deal with that situation. There is no way to stop that sort of discussion.

    The new reality is that jurors probably know about a case before they sit in the courtroom. Maybe they have already made a decision about it, and will be hard to sway. The legal profession just has to deal with that fact, and work out ways to cope.

  30. Pete

    All very well and good, Bernard, but most people are idiots.

  31. anthony kelly

    Well I am a lawyer too and have been for over 30 years. I’ve practiced in a criminal prosecution agency but now do commercial work. Typically the lawyer comments here in all their elegance and pomp betray the arrogance and patronization typical of the profession. They complain that those dumb jurors can’t handle exposure to what they term “prejudicial” material. For some reason, like so many evidence-less and anachronistic principles put forward by lawyers to defend their craft, most people just accept this stuff. There is no evidence at all that jurors will be prejudiced by such material and what evidence there is is quite to the contrary. Jurors are instructed on their legal duties by the judge and all the evidence we have indicates they carry them out by faithfully considering only relevant matters. We live in a highly educated and well informed society – with jurors to match and most of whom are no less intelligent than lawyers or the judges hearing the case. The absurdity and patronizing nature of the lawyers ‘ views in these matters is highlighted by Karen’s quite unabashed conclusion that judges alone should adjudicate on these matters without jurors! So judges can be exposed to but dismiss prejudicial material but poor dumb jurors can’t because………well because they are poor dumb jurors and she/he is a judge……. Need anything more be said? Bernard you are spot on in your analysis both in principle and the inevitability of your predictions. The legal dinosaurs won’t be around for much longer.

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