Twitter in the Courtroom

On December 20, 2010 the head of judiciary in England and Wales ruled that reporters and other observers can send updates to twitter from the courtroom while trials are in session as long as the messages do not impede the judicial process.

A court in Connecticut allowed twitter updates during a murder trial while in Georgia a federal judge denied a journalist’s request to use his smartphone in court to post messages.

In Germany, a judge also denied twitter messages while trials are in session.

The following provides an overview of how twittering is handled in courts in the United Kingdom, the United States, and Germany.

United Kingdom
The ruling of the head of judiciary of England and Wales came a week after an appeals court judge denied using twitter messages during a bail hearing for Julian Assange, the WikiLeaks founder.

During the Monday hearing, Lord Chief Justice Igor Judge said that there is no statutory prohibition on the use of live text-based communications in open court. Other than cameras and sound recording equipment, updates to social networks are most likely unobtrusive and virtually silent. Hence, such updates generally will not interfere with the proper administration of justice.

United States
In the United States courts distinguish who is tweeting. In Arkansas one of the jurors was posting messages related to the trial on twitter. In Philadelphia another juror also posted messages relating to the trial on twitter and the judge resisted calls from the defense to remove him from the jury.

In Kansas a U.S. District Court judge allowed a reporter to tweet about court proceedings in a trial of six Crips gang defendants. The judge argued the more that can be done to open the judicial process to the public, the greater the public’s understanding would be. There would be no influence of the jurors by tweets because they are always told to avoid broadcasts, newspapers and online reports.

A U.S. District judge in Georgia, on the other hand, wrote that Rule 53 of the Federal Rules of Criminal Procedure should be interpreted to ban twitter from the courtroom. Rule 53 states that the court must not permit the broadcasting of judicial proceedings from the courtroom. According to the judge the rule must be interpreted to prohibit tweeting during court proceedings. The term “broadcasting” would include sending electronic messages from a courtroom.

In Germany a judge ruled that posting updates on twitter during a trial is not allowed because of the regulation of § 169 GVG. This rule states that sound recordings, shots and radio recordings are not allowed during a trial. The jurisdiction of the Federal Constitutional Court in Germany always interpreted this rule very strictly. But what about twitter?

The higher courts in Germany have not discussed this topic yet. Twitter is not a sound recording, shot or radio recording. There is no rule that denies a live report via text messages. There is also no rule that denies text messages while a trial is in session.

The intention of § 169 GVG is to not interfere with a trial and to not affect the establishment of the truth. Text messages may have the same influence on witnesses and the establishment of the truth. The wording of § 169 GVG is precise. Tweets are not restrained. Historically there was no need to restrain tweets because when the rule was established in 1964 tweets were unknown.

The only way to restrain tweets in German courts is by applying §169 GVG analogous according to the intention of the rule. This rule protects the personal rights of the involved parties, their right to have a fair trial and the establishment of the truth. On the other hand there is the public interest in trials.

§ 176 GVG gives the chairman of the court the right to take measures to maintain the court’s order. Under this rule a judge in Germany can restrain tweets without violating the rule that trials have to be open to public.

Since the higher courts do not have jurisdiction over the matter and no precise statutory rule is in place, it is the decision of the judge to allow tweets in the courtroom or not. It remains to be seen if Germany will enact a new law concerning tweets while a trial is in session.

Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs