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Open and Fair Trial in the Social Media Era: An Insurmountable Conflict or an Emerging Opportunity?

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Original languageEnglish
JournalEuropean Journal of Law and Technology
Volume10
Issue number1
Publication statusPublished - 1 May 2019

Abstract

The ideal of open trial in the social media era faces a number of obstacles and challenges that are due on the one hand to the instant information propagation afforded by the digital environment, on the other to the much more widely available disseminating technology. At the same time, a number of opportunities for rethinking the concept of open trial arise too. Taking recent consultations in England and Scotland on the use of live social media reporting during trial proceedings as a starting point, we argue that the decision by both systems to allow in principle tools such as Twitter aimed correctly at maximising openness, but in failing to unpack further the concept of open justice, and in avoiding a deeper analysis of possible technological solutions, missed an opportunity to mitigate the inherent tensions between open and fair trial further. In the paper, we firstly discuss such an "unpacking" of the open trial ideal, trying to isolate those aspects that are "intrinsic" to the concept from those that were merely historically contingent responses to technological and social constrains at the time. We then discuss a simple technical response to some of the concerns voiced but not resolved in the consultations. We then move on to a more abstract thought experiment how technology might enable much more radical (and at the same time historical) versions of open trials.

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