Reasons given for censoring Tribunal Tweets
The Employment Tribunal has issued a flawed judgment
Reasons have been given for the decision by an Employment Tribunal to prevent Tribunal Tweets from ‘live-tweeting’ the hearing in McBride v The Scottish Ministers. My thanks to Kenny McBride for providing me with a copy of the Order, which is available here.
Let’s recap the story so far before getting into the judgment itself. For a detailed background, see these previous posts here and here. Tribunal Tweets is a ‘citizen journalist’ collective that uses Live Text Bases Communication (LTBC) to ‘live-tweet’ court and tribunal hearings of public interest. They have a practice of notifying the Court or Tribunal when they are present at a hearing and of asking permission to live-tweet. Almost every time that a request has been made, it has been granted.
In this case, Tribunal Tweets sought permission and was asked to prepare submissions to support this request. The collective then instructed Naomi Cunningham of Outer Temple Chambers. At this stage, a divergence appeared regarding the default position of a citizen journalist wishing to tweet about a hearing in real time. The Tribunal was of the view that the default position here is that permission must be sought and granted before LTBC can be used during a hearing. In contrast, Tribunal Tweets argued, following legal advice, that Article 10 of the European Convention on Human Rights, coupled with the principle of Open Justice, creates a presumption in favour of freedom of expression and that any interference with that must be justified.
It’s quite important which of these presumptions is correct because it changes the nature of the task before the Tribunal. If the default is that permission must be sought, then the decision as to whether or not to grant permission is within the discretion of the Tribunal. If the default is that people are free to tweet unless the Tribunal chooses to make an Order prohibiting reporting under Rule 50 of the Employment Tribunals Rules of Procedure, found at Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, then that Order must be lawful and if the Tribunal gets it wrong it will have acted unlawfully. It is also important for the background factual matrix at play here because if the default is that nobody can live-tweet unless given permission then the reasons for making an exception to that will be based on the presumption that nobody else is able to tweet. If the default is that people are free to tween unless told not to, then the Tribunal must justify why it has prevented Tribunal Tweets, and only Tribunal Tweets from using LTBC.
It is now clear that the Tribunal did not consider itself to be making a Rule 50 Order and was of the impression that the default position was that nobody is free to use LTBC without first being granted permission to do so by the Tribunal. It’s reasoning reflects this presumption and therefore focuses on justifying what it sees to be a derogation from the norm that nobody is permitted to tweet in this manner without first registering as a journalist with the Courts and Tribunal Services or being granted express permission by the Tribunal in question. I do not think this is correct and I think this has contributed to errors in the reasoning of the Tribunal in this case.
The Default Legal Position
The Scottish Courts and Tribunal Services policy on the use of live text based communication such as posting on social media is contained within the Supreme Courts Protocol on the Recording & Broadcasting of Proceedings and on the Use of Social Media. It states that:
i. Journalists who are registered with SCTS may use LTBC without first obtaining permission from the presiding/chairing judge for each separate case. A registered journalist must display his, or her, registration card when tweeting in court. A journalist who is not registered with SCTS must apply to the presiding/chairing judge, through Judicial Communications, for permission to use LTBC.
ii. Members of the public must not, during the course of a virtual hearing or while in court, comment on the proceedings using LTBC in relation to: jury trials; cases involving sexual offences; or cases where the participants cannot be legally identified. Members of the public may use LTBC with other types of case without first obtaining permission.
iii. LTBC may be used only to produce fair and accurate reports of proceedings in court.
iv. The presiding/chairing judge has an overriding responsibility to ensure that there is no interference with the proper administration of justice in the court over which he, or she, presides. In the interests of justice the presiding/chairing judge may order that LTBC must not be used in a particular case.
v. In any case permission to use LTBC may, in the interests of justice, be withdrawn by the presiding/chairing judge.
It seems clear to me that the permission that must be obtained by non-registered journalists such as Tribunal Tweets must be to use LTBC in cases where members of the public are not ordinarily permitted to use LTBC. It would be quite odd for the general public to have more freedom to report on a case than an unregistered journalist. The general freedom of the public to live-tweet is repeated on the Scottish Courts and Tribunals Website, where the following instruction is given:
Members of the public must not, during the course of a virtual hearing, comment on the proceedings using any social media platform in relation to: jury trials; cases involving sexual offences; or cases where the participants cannot legally be identified.
Any social media comment in relation to the proceedings of other types of court case during the course of a hearing:
must be fair and accurate
must not be in Contempt of Court
must not be prejudicial to the court case
My reading of this Protocol is the following:
Members of the public are free to use LTBC in any case that is not a jury trial, one involving sexual offences, or one where the participants cannot be legally identified.
Registered journalists may report on any case that a member of the public is free to report on and, in addition, does not need to seek permission to report on these other cases.
Non-registered journalists may report on any case that a member of the public is free to report on but must seek permission to report on these other cases.
It is important to stress at this point, however, that any policy such as this must be compatible with the European Convention on Human Rights and that if it is not, a Court or Tribunal Applying it would be in breach of s.6 of the Human Rights Act 1998 which places an obligation on all Courts and Tribunals not to act in a way which is incompatible with the Convention.
In my view, the Protocol as drafted is perfectly compatible with the Convention. The interference with Article 10, and the right to impart and receive information is justifiable in jury trials, cases involving sexual offences and cases where the participants cannot be legally identified. However, this Protocol, as written, was not what was applied in this case.
It appears as though the Tribunal took a view similar to that provided in guidance for those attending a Tribunal remotely, as set out in this Q&A document. While stating that “Those linking in to hearings are subject to the same rules as if they were present in Court”, it also states that “no comment on the proceedings using live texted based communications (such as Twitter) during the course of a hearing - with the exception of journalists registered with the Scottish Courts and Tribunals Service, or other journalists who have obtained permission in advance.” This seems to be operating on the presumption that members of the public cannot use LTBC at all and unregistered journalists must seek permission. Yet, even if this were the case, the reasoning of the Tribunal here is flawed in my view.
The Reasoning:
The Tribunal begins by noting that this is an application by Tribunal Tweets “which would deviate from the default position in Scotland”. As set out above, because this is not a jury trial, a case involving sexual offences, or a case where anonymity is required, it is my view that the detail position in Scotland is that members of the public are permitted to use LTBC and that unregistered journalists would only need to seek permission to use LTBC in those listed cases.
Even if there was a counter-intuitive position whereby unregistered journalists were subject to greater restriction than members of the public, the Tribunal at [5] states that “Those carrying out the work [of Tribunal Tweets] are not journalists but private individuals”. If that is the case, then they should be covered by the rules in the Protocol which state that “members of the public may use LTBC with other types of case without first obtaining permission”.
This is in contrast with what the Tribunal noted at [44]: “It cannot be said that a member of the public is entitled to broadcast the proceedings as they wish without any restriction. If that were so, there would be no need for permission, for example, for cameras or other broadcasting”. But this is patently false. The Protocol allows for LTBC by any member of the public, without seeking permission from a court or tribunal in cases such as these.
Cameras and other broadcasting are covered under a separate legislative scheme. Section 9 of the Contempt of Court Act 1981 as it applies in Scotland prohibits the use of “any tape recorder or other instrument for recording sound, except with the leave of the court”. Permission is needed here because there is a statutory rule requiring it. That is not the case for LTBC where the Protocol allows for their use by the general public.
It is of course open to the Tribunal to make a Rule 50 Order which would limit reporting on a case “so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person”. The Employment Tribunals Rules of Procedure apply in Scotland, as does the requirement under Rule 50(2) that a tribunal considering whether to make such an order must give full weight to the principle of open justice and to the requirements under Article 10 of the European Convention on Human Rights.
These authorities were presented to the Tribunal, under the presumption that what was being asked of Tribunal Tweets was a submission requesting the Tribunal not to make a Rule 50 Order. The Tribunal, operating on the presumption that in Scotland there is a general prohibition on the use of LTBC by anyone without express permission, noted that this difference between Scotland and the position in England and Wales was not accounted for and that there were no authorities presented to the Tribunal setting out the position from a Scots law perspective. I hardly need to make the point but the Human Rights Act 1998 and the Employment Tribunals Rule of Procedure both apply in Scotland.
From here, the Tribunal considered whether or not to grant permission for Tribunal Tweets to break from the perceived default position in Scotland. Much of this reasoning only makes sense if one presumes
that members of the public cannot live-tweet a hearing such as this, and
that registered journalists cannot or will not ordinarily live tweet either.
The justification for prohibiting Tribunal Tweets from live-tweeting rested on the concern that contemporaneous tweets might contain errors or may be seen by a witness before their giving of evidence. But these are concerns that could arise from registered journalists using LTBC and the prohibition on Tribunal Tweets would not alleviate or prevent them. Tribunal Tweets is still free to, and did, publish what would have been tweeted live at the end of each day of the hearing. Any concern about the accuracy of this reporting remains and witnesses might still read this reporting the day before they are scheduled to give evidence.
If looking at this from the perspective of the European Convention on Human Rights, it's hard to see how this measure was proportionate, even if we presume that members of the public are not free to use LTBC during a hearing. If the concern is with preventing inaccurate reporting or with preventing witnesses from seeing this reporting in advance of giving evidence, this interference with Article 10 would not alleviate this. A more expansive Rule 50 Order would be necessary to prevent any reporting. That is the only way to prevent witnesses from seeing reporting. If the concern was with the accuracy of LTBC, a Rule 50 Order would need to be issued to prevent any use of LTBC, from registered journalists as much as from unregistered journalists. Even then, that may be a disproportionate interference with Article 10.
Ultimately, this kind of analysis is beside the point. The Tribunal operated from the wrong starting point by presuming that the default position in Scotland is that LTBC is prohibited unless permission is granted. The only textual foundation of that is the online Q&A document, purporting to summarise the Protocol on the Recording & Broadcasting of Proceedings and on the Use of Social Media. That is not an accurate summary and even if it were, it would stand to be justified, given the interference with Article 10 that it would entail. The Tribunal did not conduct a proportionality analysis because it presumed that permission was a matter of discretion.