New Ontario Superior Court protocols that will allow lawyers and journalists to use electronic devices in court but restrict that privilege from members of the public pose both practical problems and issues related to freedom of expression, according to a Toronto media lawyer.
Counsel, clerks, law students, self-represented parities, and journalists will be able to use their gadgets to text or tweet from Ontario courtrooms effective Feb. 1 unless the presiding judge bans it.
But the rule applies in reverse for all others in court: they can’t use their devices unless the judge says otherwise.
“Members of the public have the same freedom of expression enjoyed by members of the media and others listed on the protocol,” says independent media lawyer Daniel J. Henry.
Restrictions on using devices should apply only when absolutely necessary, according to Henry. All of those in court should know the restrictions, he adds.
“Freedom of information is intimately connected to the right of citizenship and shouldn’t be lightly dismissed,” he says.
Henry also predicts it will be practically difficult, if not impossible, to police the use of devices only by those listed in the protocol.
“There is no question that the line between journalists and members of the public is blurring in relaying the information we all share.”
The new protocols come after a team of legal experts proposed more permissive guidelines last year. The team, put together by the Canadian Centre for Court Technology, said it was time to grant every person in court the privilege to transmit information via personal technological devices.
After the proposals came out in the fall, Stephen Bindman, who was part of the centre’s consultation group, told Law Times social media helps advance access to justice.
“More and more Canadians are getting their information and information on the courts from social media,” said Bindman.
While Henry agrees, he says smartphone use isn’t all he wants to see in Canadian courtrooms. He’s a strong advocate for audio-visual access.
If cameras record proceedings accurately and in real-time, journalists and others won’t have to bear the pressure of firing off 140-character tweets as events unfold, he says, and the recordings can be linked to tweets.
Under the new protocols, taking photographs continues to be banned in courtrooms while audio can be recorded for the purpose of taking notes but not for broadcast or sending electronically from the recording device.