Why courts must protect judicial process from sacrilege of social media attacks

In the digital age, social media platforms have radically changed the way we interact with each other, convey information and respond to societal issues. The proliferation of social media has also had a profound impact on the legal system, notably, the use of digital platforms to influence public opinion and whip public emotions regarding Court proceedings.

Nowadays, legal disputes, especially high-profile Court cases, are litigated in and outside the precincts of the Courtroom. Online platforms like Facebook, X (formerly Twitter) and WhatsApp have made it easier for aggrieved individuals and groups to publicly comment on cases pending in Court. Our Constitution protects the freedom of expression and enshrines both the open and virtual Court principle thus subjecting judicial proceedings to public scrutiny. These dictates however need to be balanced with the right to a fair trial and the duty of the Courts to safeguard active litigation from undue interference amounting to obstruction of justice.

In this era of social media, it has never been easier for individuals or groups to express their opinions on issues of public interest including protracted litigation captivating media attention. A case in point is where parties in a dispute or their advocates publish comments or posts that may be prejudicial to the case in Court. There is also the danger of (ab)use of social media to misrepresent the facts about a case to influence public opinion in a certain direction.  

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To safeguard judicial proceedings from unwarranted attacks and criticism, the Courts have over time employed the principle/rule of Sub-Judice which in this context essentially prohibits publication of statements that may undermine or seek to influence active and ongoing Court proceedings. Res Sub-Judice is a Latin phrase that loosely translates to “under judicial consideration” and in our context of Freedom of Speech and Expression requires everyone, whether a party to the suit or not, to refrain from making comments that may undermine the authority of the Court to determine the case according to applicable law and evidence and/or influence the outcome of the decision to be arrived at.

In other words, the Courts have a duty to prevent any person from interfering or otherwise influencing the administration of justice. Lord Hardwicke’s decision in the English case of Roach vs Garvan [1742] 2 Atk 469 stated: “Nothing is more incumbent on the Courts of justice than to preserve the proceedings from being misrepresented, nor is there anything of more pernicious consequences, than to prejudice the minds of the public against persons concerned as parties in causes, before the case if finally heard.”

This position was echoed in the House of Lords by Lord Diplock in Attorney-General vs Times Newspapers Limited that “once the dispute has been submitted to a Court of law, (there) should be …...no usurpation by any other person of the function of the Court to decide it according to the law.”

The Sub-Judice rule forms part of the general law of contempt of Court under which Courts reserve the power to punish those who undermine their authority. The proper test of Res Sub-Judice in relation to making commentary on active cases is whether publication of a statement is “intended or at least calculated to prejudice a trial which is pending. Hence, Sub-Judice in regards to commentaries and critique is also known as “contempt by publication.”

One of the factors that the Court will consider in determining whether in the critique context, the Res Sub-Judice Doctrine has been violated is in relation to the active case and to the nature and extent of the publication. Given the pervasive nature of social media, the ability to influence public opinion regarding a particular matter before the Court is almost limitless. For instance, a post on digital channels attacking a Judge or misrepresenting facts about a case will be read all over the world in real-time.

In Kenya, there have been instances where advocates representing parties in a dispute have taken to social media to publicly comment on matters before the Courts contrary to the Law Society of Kenya Code of Conduct which clearly provides that: “Inappropriate use of social media, particularly in a manner that undermines the standing and dignity of the legal profession, amounts to professional misconduct.”  

Such conduct has attracted judicial attention at the highest level in Kenya and other jurisdictions. The Supreme Court of Kenya, the highest Court in our motherland has on one occasion intervened over what it considered distasteful remarks about the Court and its Honourable Justices by an advocate on social media platforms.   

Similarly, the Indian Supreme Court has also raised alarm over the misuse of social media platforms to spread factually incorrect and unfounded statements regarding pending cases. The Court observed that “comments or posts published about pending cases through social media platforms under the guise of the right to freedom of speech and expression tended to undermine the authority of the Courts and amounted to interfering with the administration of justice.”   

The Courts should therefore ensure that the integrity and sanctity of judicial proceedings is not assailed by the reckless conduct of parties to a case, including advocates, in the name of freedom of expression.

The author is an Advocate of the High Court. Email [email protected]