IMAGINE that your business is in court. And now imagine that some people in that courtroom are sending out a constant barrage of tweets about the proceedings – every accusation, every negative claim and every judicial comment appears instantly on the internet, in a context-destroying 140-character form. And now imagine the effect it could have on your firm’s share-price.
If shudders are now running down your spine, you should be interested in the Judicial Office for England and Wales's consultation into “the use of live, text-based forms of communications from court for the purposes of fair and accurate reporting”, which examines whether social media such as Twitter should be permitted in court. The consultation, launched on 7 February, runs until 4 May, with interim guidance already in effect.
While the Lord Chief Justice has apparently not joined the twitterati himself, his notes to the consultation and a previous speech show that he takes social media seriously. The consultation focuses mainly on the risks posed by Twitter use to jury independence, as well as the potential for witnesses who have yet to give evidence being forewarned of evidence already given. The main focus is on the effect on criminal trials and the proper conduct of proceedings.
However, as the consultation itself recognises, “very often, sensitive material emerges in the course of a trial, the sensitivity of which is not immediately apparent”. Advocates are highly skilled interrogators, and this combined with the pressure on a witness to tell the whole truth when isolated in the witness box creates a uniquely pressurised environment expressly designed to get even the stiffest tongue wagging. In contrast with a press briefing, no media minder can accompany a witness into the box to manage sensitive questions. As a result, there is considerable scope for embarrassing, damaging and, in appropriate circumstances, price-sensitive information to be shaken loose in the course of cross-examination.
Combine such inadvertent disclosure with the “tweet before you think” ethos that characterises many postings and the speed with which posts can reverberate around the world and you have a potential corporate communications nightmare.
The full impact of a tweet might not be immediately apparent, making efforts by your own barrister to repair the damage impossible. The court is also unlikely to interrupt cross-examination, as this would disrupt the trial and may adversely affect the opposition’s case. Finally, trying to mitigate the effect of the witness’s comments (which are made under oath) by casting doubt on them undermines the individual’s credibility, both as to his evidence in the case and generally.
A judge’s negative comment as to the validity of a particularly important patent, for example, might hit a company’s share price hard, even before any judgment has been given. Accredited journalists will hopefully phrase such reports carefully, but bloggers (some of whom are very influential) may not, and an activist with an axe to grind may be expressly looking for comments supporting their particular angle.
Whilst some of this applies equally to comments that could be put online by leaving the courtroom, tweeting from the courtroom itself permits an ongoing “ball by ball” commentary on a case which may not always accurately indicate the judge's eventual decision.
In an appropriate case, quoted companies may well face an application for courtroom tweeting. Given the potential complications this may create, they should oppose such an application in order to avoid exposing themselves and their business to reputational damage and share price volatility.
Oliver Lawson is an associate in the Dispute Resolution department of Stevens & Bolton LLP