Andrea Martin, partner at MediaLawyer Solicitors, writes on social media and the law in the aftermath of the Belfast rape trial.

The anger in the voice of Joe McVeigh, solicitor for Paddy Jackson, after the acquittal of his client and three others in the now notorious, and deeply disturbing, “Belfast rape trial”, was obvious, when he referred to the way in which social media had been used during the trial.

In the UK, the Contempt Act 1981 provides clear statutory rules for the reporting of trials so as to avoids interfering with the administration of justice. In Ireland, we have no such Act. We rely on the less clearly defined common law principles of contempt law, which have developed over the years through various court judgments.

The Lord Chief Justice for England and Wales introduced Guidelines in 2011 for the use of social media during trials in England and Wales. Effectively, these Guidelines allow members of the media – who are expected to know what their legal obligations are under contempt law – to use social media in court. Anyone else must request permission from the judge to do so. That permission can be withdrawn at any time. Those Guidelines only cover the use of social media in court. What happens outside the courtroom is a separate question.

During the Graham Dwyer trial in 2015, a blogger was called before the court and ordered to cease an ongoing daily analysis of the credibility of evidence as it was given.

In 2017, the retiring Chief Justice Susan Denham, in one of her last public speeches in office in, spoke of the importance of introducing guidelines that would address the “who, what, when” for social media use in Irish courts.

Under our 1937 Constitution, the right to a fair trial is guaranteed by Article 38.1. The rights to freedom of expression (Article 40.6.1) and the public administration of justice (Article 34.1) are also constitutionally protected. It was Judge Denham, in a case in 1998, who established the principle that where a “mutually harmonious application” of these rights could not be achieved, then “the accused’s right to a fair trial is superior to the other rights in the balance”.

A trial judge in Ireland is entitled to make such orders concerning coverage of the trial as she sees fit in order to ensure the accused’s right to a fair trial is protected. Realistically, for a judge to try to manage and control the use of social media generally during a trial is utterly impractical. Legislation may be required to ensure any guidelines issued by our Courts are enforceable.

It’s impossible to say how or if the Belfast rape trial, in terms of its outcome, was influenced by social media postings about the trial and about the individual complainant and defendants. Judge Patricia Smyth repeatedly told the jury they must not look at social media about the trial and it would be unfair to presume they intentionally did otherwise. I for one, would find it extremely difficult not to look at social media for nine full weeks, however.

One thing is certain, a parallel trial in the court of online public opinion was taking place at the same time as the actual trial. The extent to which social media activity of this nature has the potential to undermine the fair administration of justice needs to be looked at carefully. Any guidelines or legislation must find the right balance between ensuring trials are fair, while protecting the right freedom of expression and the transparency of our judicial system through the public administration of justice.

This article first appeared in the Sunday Independent on 1 April 2018.