Twitter opens up new battleground on communication during litigation

The guidance for England and Wales suggests there will no longer be any need for representatives of the media or ‘legal commentators’ to make an application to use text-based devices to communicate from court – primarily in the event that they should wish to tweet proceedings.

Further, it 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 the extent to which this has been taken into account by the powers that be remains unclear.

The use of PR in litigation has long been accepted as part and parcel of disputes in the US, and has gained increasing traction in the UK. To paraphrase 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 is whether the masses of users are really likely to take a major interest in commercial litigation.

Given the consumer-focussed nature of Twitter’s audience, the answer must be yes. You only need look at the level of public interest in matters like the Berezovsky v Abramovich showdown (where journalists are arriving in court and tweeting the proceedings live) to know 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 – 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 what does one need to do to qualify as a ‘legal commentator’? A card-carrying member of the NUJ? Or will PR agents and others be equally free to Tweet on litigation – even where they have a vested interest?

This seems an important point that may require clarification, particularly as and when guidance is issued in Scotland. Imagine a scenario where a big corporate – let’s say an unpopular insurance company – is in court litigating against an individual. A NUJ card-carrying journalist turns up to Tweet. Let’s say that journalist isn’t a fan of insurers and not exactly impartial (heaven forbid).

He or she might - while sticking within the rule of ‘accurate reporting ‘ – focus deliberately or otherwise on those elements of the proceedings which are detrimental to the corporate’s case. So the outside world doesn’t get a balanced view, and those inclined to do so might think the worst of the insurer. The judge’s job is to ensure there is no miscarriage of justice – but it may prove difficult to police this area and if nothing directly inaccurate has been said, problematic to intervene. The judge’s job is to ensure there is no miscarriage of justice; 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 corporate – like a member of its own communications team – have equal freedom to Tweet, or would that freedom be denied if they are not a qualified court reporter?

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

In Scotland the position remains that permission is needed from the Court. That might change if any guidance follows that South of the Border.

Whether Tweeting from Court does emerge as a major reputational threat remains to be seen. However, in the meantime, it is clear a new battleground has 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 clients.

• Laura Cameron is Head of Litigation and Dispute Resolution (Scotland) & Fred Banning is Communications Manager at McGrigors