It is important for all lawyers to take note that not all judges are familiarised with social media trends. Hence, it is upon their duty to guide judges accordingly on cases involving social media. Many judges find it hard to interpret the terms used in various social media platforms. In fact, early this week, a former high court judge Dyson Heydon’s admitted that he doesn’t use email hence he was not up-to-date with the latest technological trends.
However, Natallie Hickey from Owen Dixon Chambers West in Melbourne said that a few judges have started getting familiarised with the social media platform. “But they can’t be more familiarised as compared to staunch social media users who are well-acquainted with the culture and mechanisms used in different social media platforms.” Ms. Hickey said. She also said this does not mean lawyers should assume that judges are well-familiarised with social media trends as the other people who appear before them do.
For instance, in defamation cases that occur through social media, lawyers are expected to explain into details what took place and the mechanisms used, shedding light on the pros and cons of social media. Hence, lawyers are expected to understand their audience in order to come up with extensive evidence. “The reason behind this is because ascertaining the impact of a message requires a lawyer to understand the influence and lifespan of each post in a given social media platform.” Ms. Hickey said.
She continued by giving an example of a case whereby a judge may attribute a meaning to a tweet which may not actually be true or may not be there in real life. If the lawyer fails to explain to the judge what is involved or fails to provide a very detailed evidentiary explanation of how Twitter actually operates, then it will be very hard for the judge to interpret the case or arrive at a fair decision. A relevant case was brought before the court whereby two artists based in Melbourne were ordered by the court to pay $450,000. The order was made after they were charged with defaming a former gallery owner by incorrectly claiming that he had assaulted his staff sexually. They also called the man Hitler and he didn’t take that lightly. Although the trial judge took this matter very serious, the decision was quashed and the case was taken back to trial.
All these issues clearly show that there is a process of education required along the way to help judges better interpret the law behind defamation and also gain a good understanding of the social media culture.