Only “Counsel” and “Media” Can Tweet Inside Court: A Charter Infringement?
The open court principle requires that the media is able to report on court proceedings, except in rare cases where doing so would infringe, for example, an accused’s right to a fair trial or a witness’s right to privacy. In recent years, social media has been increasingly used to communicate information from courtrooms to the public in real time, and allowing audiences more immediate, up-to-the-minute virtual access to court hearings than traditional news reports. However, most court policies in Canada restrict the use of electronic devices inside courtrooms to “counsel” and “members of the media” only. In the process, they impose restrictions on the s.2(b) freedom of expression guarantee in the Charter of Rights and Freedoms [Charter] that have not been tested in court.
I have occasionally followed court cases on Twitter when I could not attend in person, including several prominent criminal proceedings and the Bill 5 hearing in August 2018. Through attending court, following hearings on social media, and reading news reports, I have found that news reports often lose much of court hearings’ immediacy and detail, and that social media can sometimes fill in some of these gaps. Until last month, I did not consider that live-tweeting court hearings may be against court rules. However, after several people who could not attend a hearing I was attending asked me to tweet updates, I checked court rules. I learned that many courts restrict the broadcasting of information from inside courtrooms in real time to “counsel” and members of the media.
Courts across Canada restrict the use of electronic devices inside hearings by applying two criteria: category of person and purpose of use. Most courts prohibit the general public from using any electronic device in court, but provide exceptions for “lawyers” and “media.” Some courts include the further restriction that those who fall under the exception may use their electronic devices only “in service of their professional duties.” This post considers whether these restrictions, and their exceptions, are consistent with the freedom of expression guarantees in s.2(b) of the Charter. I argue that, provided that electronic devices are used discreetly and do not disrupt court proceedings, restrictions on their use for the “general public” creates too broad of a restriction of s.2(b) rights that is difficult to justify in an age where technological change has broadened the definition of “the media.”
A Patchwork Of Policies
Quebec and the Northwest Territories have the most restrictive policies on the use of electronic devices in courtrooms. They require all electronic devices to be switched off in court, but provide exceptions for “lawyers, justice professionals, [and] members of the media.” The policies allow members of these groups to keep their devices switched on, provided that the device’s use is: “limited to carrying out the individual’s professional duties”; they are “used in a non-disruptive manner consistent with the dignity and solemnity of the proceedings”; and the “transmitting and receiving features [of the devices] are turned off.” The policy of the Northwest Territories makes the rule even clearer: “There is no electronic broadcasting in any manner whatsoever from the courtroom.” The policy in Quebec is similarly restrictive, even though, for example, the president of the Quebec Federation of Journalists has argued that “Twitter is the tool of the 21st century [which] allows journalists to bring the citizen into the courtroom.”
The Alberta Court of the Queen’s Bench (ABQB), the Saskatchewan Court of the Queen’s Bench (SKQB), the Ontario Superior Court (ONSC), the British Columbia Supreme Court (BCSC), and courts in the Yukon prohibit the “general public” from using electronic devices to communicate information in court, but provide exceptions for “counsel” and “members of the media.” The ABQB allows only “counsel” and “members of the media who have signed an undertaking with the Court” to use their devices inside court; courts in the Yukon provide a list of “accredited media” who may use electronic devices without special permission and require all others who wish to use their electronic devices in a courtroom to apply for an exception with the court; and the SKQB requires members of “authorised media” to display card identification “so that their status is apparent to court personnel.” The policies of the SKQB and the Yukon Supreme Court explicitly note that permission to use electronic devices in a courtroom includes permission for “tweeting and blogging.”
Some appeals courts – such as the British Columbia Court of Appeal, which allows “anyone” to use electronic devices in court – are less restrictive, perhaps because proceedings do not involve jury, witnesses, or accused. Nova Scotia is the only province which does not prohibit the general public from using electronic devices in court.
It is important to note that the policies are not consistently applied in practice. Some of the people tweeting the Bill 5 hearing, for example, may not have fit within the exceptions of the ONSC guidelines but none encountered sanctions. However, official sanctions for the prohibited use of electronic devices in court include contempt of court, and all of the guidelines present a similar problem of lack of direction regarding how court officials may interpret “counsel”, “members of the media,” and “in service of professional duties.” For example, does “counsel” include only those members of the legal profession who are involved in the proceedings or all members of the Bar within the province? Does “media” include freelance journalists and bloggers?
The Open Court Principle and Section 2(b) of the Charter
The Supreme Court of Canada (“SCC”) has ruled that the open court principle is “inextricably linked” to the freedom of expression guarantee under s.2(b) of the Charter: Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun]. It has recognised that it is “exceedingly difficult for many, if not most, people to attend a court trial”: Edmonton Journal v. Alberta,  2 SCR 1326 [Edmonton Journal], and that as a result, in practice, most people must rely on the news media to access information about court proceedings. The Court has held that the “press plays a vital role” in how the public receives information regarding the operation of public institutions, and that the freedom of the press to report on judicial proceedings is therefore “a core value” (Vancouver Sun at para 26).
The SCC has ruled that “the open court principle, to put it mildly, is not to be lightly interfered with” (Vancouver Sun at para 26) because, although from time to time, the safety or privacy interests of individuals or groups and the preservation of the legal system as a whole require that some information be kept secret, “information is at the heart of any legal system” (Named Person v. Vancouver Sun, 2007 SCC 43 at para 1). The high threshold for imposing a publication ban and that journalists are often allowed into in camera proceedings also suggest a recognition of the important role that the media play in communicating court information to the public. In the common law, s.2(b) of the Charter not only protects speakers, but the right of the public to receive information (Edmonton Journal at pp. 1339-40).
However, the way that the public receives information has radically changed over the past 30 years. In 1989, Justice Cory suggested that it is “only through the press that most individuals can really learn of what is transpiring in the courts” (Edmonton Journal at pp 1339-40). While “the press” may have been relatively simple to define thirty years ago, technological change in the 21st century has blurred the lines between “the media” and the “general public.” Today, anyone with an Internet connection may create content that is available globally, and many independently-produced blogs and podcasts attract large audiences. Traditional news outlets are no longer the main gatekeepers of information between institutions and the public, and it is more difficult to define “the press” narrowly. Indeed, many people use social media like Twitter and Facebook as their primary news source.
Implications of Technological Change in “the Media”
Several arguments support the proposition that only “accredited” media should be included among those who may communicate electronically during court hearings. In Canadian Broadcasting Corp v. New Brunswick (Attorney General),  3 SCR 480 [New Brunswick], the SCC held that the public’s s.2(b)-protected entitlement to be informed – which enables the “full and fair discussion of public institutions” that is “vital to any democracy” – “imposes on the media the responsibility to inform fairly and accurately” (New Brunswick at p. 496-7). The SCC underscored that the media’s responsibility “is especially grave, given that the freedom of the press is, and must be, largely unfettered” (New Brunswick at p. 496-7). In other words, meaningful debate on public policy requires a well-informed, rather than misled, public.
Members of the traditional news media are bound by professional codes of ethics and best practice standards. Professional ethics require journalists to, for example: “verify all facts”; “make every effort to verify the identities and backgrounds of […] sources”; “seek documentation to support the reliability of these sources and their stories”; and to “serve democracy and the public by reporting the truth.” Guidelines require journalists to be transparent about mistakes and bias, and to print retractions and corrections where necessary.
Social media, on the other hand, does not impose similar standards of accuracy, accountability, and impartiality, and users remain largely unaccountable to the public. Users often remain anonymous, and inaccurate information is practically impossible to retract. (As Tom Phillips put it: “[w]hen you are trying to correct things on Twitter […], it’s a losing battle from the beginning. […] You end up chasing Tweets that spread faster than you can keep up; it’s like putting toothpaste back in the tube, except the toothpaste is alive and didn’t like it in the tube and is dreaming of Broadway.”)
The informational anarchy of social media drives concerns that allowing the general public to communicate in real time about court proceedings may open the door to misinformation, and undermine the democratic requirement of an informed public. An article in the Dalhousie Journals of Legal Studies puts the problem this way: “the more opportunity there is to create multiple narratives regarding judicial proceedings, the more likely it is that misinformation will be produced and that mistakes will be made.” The article further suggests that “when competing narratives emerge for a single court proceeding, it may be difficult to discern fiction from fact, particularly as the information travels furthers away from its original source.”
The difficulty, however, lies precisely in the separating of fiction from fact. Decisions regarding which members of the public may be considered legitimate “members of the media” likely require a consideration of the value of their expressive contribution. Furthermore, broad restrictions prohibit both well-informed and diligent members of the public from communicating information, as well as those who misinform, intentionally or otherwise.
An Uneasy Distinction: “The Media” Versus “The General Public”
For better or for worse, social media does not present any overarching narrative of unfolding events, and provides no single frame through which to consider “the news.” The frame rather depends on a set of circumstances particular to each individual user, including the sources they follow as well as the internal algorithms of the social media platform they are using. Social media’s anarchic structure allows users to interact with information themselves and to participate in its creation. At the same time, social media opens the door to misinformation, does not present balanced, impartial accounts, and allows users to remain inside “filter-bubbles” of information. It does, however, enhance the immediacy of courtroom information, increases the range of perspectives, and supports the open court principle by virtually connecting the public with people inside court.
Although concerns over the contribution of social media to the quality of public deliberation are not misplaced, they are equally not particular to the courtroom. Misinformation and a lack of accountability online raises broader questions about public conversations in the 21st century. At the same time, broad restrictions on electronic communications inside courtrooms – while imposing limits on s.2(b) rights – may be ineffective in preventing misinformation. For example, members of the general public who wish to communicate about courtroom proceedings in close-to real-time may take notes and communicate electronically during court recess. Restricting the communication of court proceedings also does not solve the problem of filter-bubbles. Equally, broad restrictions on s.2(b) without justifications will not survive Charter scrutiny.
Finally, concerns that removing restrictions on the use of electronic devices for the general public without exception will lead to rampant misinformation and a poorly-informed public seem misplaced, given that people need not be inside a courtroom to spread misinformation. Concerns that a lack of restrictions will lead to disruptions due to phones not being kept in silent mode are more likely to confirmed.
All of the current policies on the use of electronic devices in court provide for overriding judicial discretion. If courts remove restrictions on the use of electronic devices in court, they may nonetheless retain the ability to impose restrictions in cases where the limit on s.2(b) may be justified. Courts may also devise various means to require all members of the general public to take notice of publication bans and thus avoid some of the problems that the currently-restrictive policies aim to inhibit, such as posted notices or requiring the public to sign agreements on the use of devices.
For better or for worse, the Internet has challenged the traditional separation between “the media” and “the general public” and courts are likely to confront the question in the years to come. In the digital age, broad restrictions on electronic communications in court for the general public, alongside an exception for “the media” which creates difficulties of interpretation, impose restrictions on s.2(b) that must be justified. The SCC interprets the open court principle and s.2(b) protections broadly and generously. Courts will need to balance among the rights of, for example, speakers, listeners, and those involved in court proceedings in their policies on the use of electronic devices in court. Overall, as long as the general public abides by important court restrictions such as publication bans and sealing orders, and uses electronic devices in court discreetly and in silence, it is likely that current court policies regarding the use of electronic devices will require reconsideration.