Tweet you in court

The new guidance suggests that there will no longer any need for representatives of the media or ’legal commentators’ to make an application to use textbased devices to communicate from court – primarily in the event that they should wish to Tweet proceedings.

The guidance appears to have been written primarily with criminal cases in mind. The paper states that “the danger…is likely to be most acute in the context of criminal trials.”

However, the guidance also has significant implications for commercial litigation and, in particular, litigation PR.

Litigation PR has long been accepted as part and parcel of disputes in the USA, and has gained increasing traction in the UK in recent years. To paraphrase the words of Harriet Harman, it is possible to win a case in a Court of law whilst simultaneously losing it in the Court of Public Opinion.

Twitter is, by and large, a consumer-focussed forum. So the first question one might ask when reading this article is whether the masses of users are really likely to take a major interest in commercial litigation.

My answer to that would be yes. You only need to look at the level of public interest in matters such as the Berezovsky versus Abramovich showdown or phone-hacking litigation to know that, yes, the public do take a keen interest in the law at certain points.

Furthermore, it is not hard to imagine a scenario where litigation around a consumer product (lets say breast implants, for instance) could become a major topic of conversation on Twitter that could have significant implications for a brand’s image.

Brands will be keen to protect their reputation. And so the argument follows, they will seek to manage how litigation is reported – both in traditional and new media – to create an accurate and balanced picture.

So the question then becomes this: what exactly does one need to do to qualify as a ’legal commentator’? Do you need to be a card-carrying member of the NUJ, for instance? Or will PR agents and others be equally free to Tweet on litigation – even where they have an axe to grind.

I think that’s an important point that requires clarification. Imagine a scenario where a big corporate – lets for the sake of argument an unpopular bank – is in court litigating against an individual. A NUJ card-carrying journalist turns up to Tweet the proceedings.

Let’s say that journalist is of socialist sympathies and isn’t exactly impartial (heaven forbid). He or she may choose only to Tweet those elements of the proceedings which are detrimental to the bank’s case, regardless of the validity of the arguments. So the outside world doesn’t get a balanced view, and assumes guilt. The judge’s job is to ensure there is no miscarriage of justice – but his or her job does not include ensuring fair and accurate reporting to the outside world.

In that scenario, would a PR agent engaged by the bank have equal freedom to Tweet, or would that freedom be denied because they are not a qualified Court reporter?

It may seem a moot point – who would trust the spin doctor? Well, in an age when fewer and fewer reporters are actually able to physically make it to the Courts, traditional media – and perhaps even the public – may want a version of accounts from both sides. Already, various Police Forces issue press releases based on criminal trials which are heavily relied upon by the media for reporting purposes.

Whether Tweeting from Court does emerge as a major reputational threat remains to be seen . However, in the meantime, the point is clear. A new battleground has been opened up in the way in which communication during litigation is handled. Those that fail to allow for and address this reputational issue in their assessment of risk  and litigation strategy  are unlikely to impress their clients.

Michael Fenn is a partner and Fred Banning is communications manager at McGrigors @McGrigorsLLP @fbanning