Rachel Hews, Digital Media Research Centre, Faculty of Law, Queensland University of Technology, Brisbane, Australia
Nicolas Suzor, Digital Media Research Centre, Faculty of Law, Queensland University of Technology, Brisbane, Australia
Governments and courts around the world are increasingly concerned about the potential for social media conversations to cause juror bias and jeopardise the right of an accused to a fair trial (Bartels & Lee, 2013; Johnston et al., 2013; Keyzer, Johnston, Pearson, Rodrick, & Wallace, 2013; Wallace, Keyzer, Johnston, Pearson, & Rodrick, 2013; Hannaford-Agor, Rottman & Waters, 2011;Tait, 2011; Thomas, 2010). Information that might prejudice an ongoing trial may be spread through social media in a way that is not as easily controlled as information disseminated through mainstream media. The rise of social media enables prejudicial comments made by individuals, including comments as to a person’s perceived guilt or innocence, to reach a much larger potential audience. There are significant fears that even small numbers of highly prejudicial posts on social media could influence a jury if those posts are made to a large audience or widely amplified by other users. It is also possible that the collective weight of low-level prejudicial information on social media may work to influence juries. The increasing prevalence of social media accordingly raises important questions about the potential for unregulated prejudicial information to influence juries and the outcome of trials.
As a discrete case study, we use digital methods to investigate Twitter conversations during the high-profile murder trial of Gerard Baden-Clay (R v Baden-Clay (2014) QSC 154). We undertake a discourse analysis of tweets during the trial to assess the prevalence of prejudicial conversations, identify the main actors involved in publishing and amplifying prejudicial information, and understand how users engage with that information (Robson, 2002). To obtain our data we extracted tweets that matched the date range of the trial and associated keywords and hashtags, as well as any tweets that directly referenced those tweets, from the Australian Twitter Collection. We categorised a sample of these tweets according to whether their content contained prejudicial information and then counted the frequency of each category (Denzin & Lincoln, 2011). The coding scheme was informed by the legal principles of sub judice contempt.
We use our results to develop a legal analysis of the operation of traditional media regulation and to consider how well-adapted it is for the platform society. Traditional media regulation makes it unlawful to publish prejudicial information about pending criminal trials (R v Daily Mirror (1927) 1 KB 845). By imposing liability on those responsible for publications such as journalists, editors, producers and proprietors of media organisations (New South Wales Law Reform Commission, 2003), it has generally been possible to limit juror exposure to prejudice in the mass media and thereby preserve juror impartiality (Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR NSW 596) and the right to a fair trial. However, this traditional means of regulation is not easily enforceable on social media. This paper also presents a useful opportunity to develop the application of digital methods for legal analysis and policy reform (Rogers, 2013). It suggests the need for further investigation into how platforms are shaped and operated, their moderation procedures, mechanisms they have for enforcing their terms of service and the potential liability they do or should accrue.
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Denzin, N. K., & Lincoln, Y. S. (2011). The Sage handbook of qualitative research (4th ed.). Thousand Oaks: Sage.
Ex parte Auld; Re Consolidated Press Ltd (1936) 36 SR NSW 596.
Hannaford-Agor, P., Rottman, D. B., & Waters, N. L. (2011). Juror and Jury Use of New Media: A Baseline Exploration. National Center for State Courts Center for Jury Studies, United States, 1–16.
Johnston, J., Keyzer, P., Holland, G., Pearson, M., Rodrick, S., & Wallace, A. (2013). Juries and Social Media: A Report Prepared for the Victorian Department of Justice (pp. 1–30). Australia, Standing Council on Law and Justice.
Keyzer, P., Johnston, J., Pearson, M., Rodrick, S., & Wallace, A. (2013). The courts and social media: what do judges and court workers think? Judicial Officers Bulletin, 25(6), 47–51.
New South Wales Law Reform Commission. (2003). Contempt by Publication, Report 100 Summary.
R v Baden-Clay (2014) QSC 154.
R v Daily Mirror (1927) 1 KB 845.
Robson, C. (2002). Real World Research: A resource for social scientists and practitioner-researchers (2nd ed.). Malden, Mass; Oxford: Blackwell Publishing.
Rogers, R. (2013). Digital Methods. Cambridge, Massachusetts: The MIT Press.
Tait, D. (2011). Deliberating about terrorism: Prejudice and jury verdicts in a mock terrorism trial. Australian & New Zealand Journal of Criminology, 44(3), 387–403. http://doi.org/10.1177/0004865811419067
Thomas, C. (2010). Are juries fair? Ministry of Justice Research Series. Retrieved from http://www.justice.gov.uk/downloads/publications/research-and-analysis/m...
Wallace, A., Keyzer, P., Johnston, J., Pearson, M., & Rodrick, S. (2013). Courts and Social Media: Opportunities and Challenges? Brief, 40(7), 36–39.
 This research is supported by infrastructure provided through the Australian Research Council funded Tracking Infrastructure for Social Media Analysis (TRISMA LIEF LE140100148).
 A publication will be in sub judice contempt of court where it has, ‘as a matter of practical reality, a tendency to interfere with the course of justice in a particular case’ (John Fairfax & Sons Pty Ltd and Reynolds v McRae, 1955)