‘Emotivism’ in social media and the rule of law

As a social media strategist, you might expect Ella Doyle to back the increasing use by Australians of platforms like Instagram, Facebook and TikTok as simple and convenient ways to keep up to date with big court cases and major legal developments.

But it could not be further from the case.

Doyle, the founder of creative agency Social Cut, says while mass media has always influenced popular perceptions of the judiciary and legal system, the lack of oversight on social media has been a gamechanger that is denting public confidence in law.

“Media scrutiny has long influenced legal proceedings, but with the advent of social media, this issue has been amplified,” the Brisbane-based social media expert says.

“The safeguarding checks and balances of the past seem to have evaporated, replaced by a torrent of misinformation and clear biases.”

She says social media influencers and other prominent figures online – often with thousands or even millions of followers – tend to propagate biases “sparking polarised viewpoints and making it challenging for juries to focus purely on the case facts”.

That is especially the case now in Australia – one of the heaviest global users of social media. As of February 2022, approximately 82.7 percent of the Australian population were active users compared to just 58 percent in 2015, according to market research firm Statista.

“For justice to be served, we must recognise this reality and ensure that verdicts are based on evidence and law, not on public sentiment swayed by social media,” Doyle says.

She’s not the only person worried that social media’s impact on the law is going beyond things like presumption of innocence, fair trials and integrity of jury deliberations.

A ‘real threat’

Late last year, Justice Peter Quinlan, Chief Justice of Western Australia, pointed to a “real threat to the rule of law” in the social media age arising from “radical subjectivity”.

In the state’s annual Francis Burt Oration, Quinlan suggested this often shows up on social media as the use of phrases such as “my truth” and “your truth”.

In a legal context, he notes legal proceedings being “described in terms that suggest that the outcome is, in fact, the expression of the individual judge’s preferences or attitudes”.

That is a big problem for maintaining confidence in an impartial legal system, he posits.

According to the judge, the end point was on “full display” in the US after the 2022 Supreme Court decision of in Dobbs v Jackson Women’s Health Organisation, which overruled the landmark 1973 decision in Roe v Wade on the controversial issue of abortion rights.

The reaction to that decision on social media was “near exclusive focus on outcomes, and their tacit association with the personal or political preferences of judges”.

Doyle, meanwhile, references the high-profile Johnny Depp–Amber Heard legal battle as a key instance of social media’s power to turn a court case into a “into a popularity contest and a debate on ethics rather than a straightforward evaluation of the facts”.

“Despite these distractions, it’s reassuring that, in this case, the judicial system upheld its role, making decisions based on law and evidence, not public sentiment,” she says.

“However, this case underscores the critical risk we face – justice can easily be compromised if we allow social media narratives to cloud the truth.”

For Quinlan, the social media age – and the “emotivism” values that underpin it – are to blame for the public’s waning confidence in the objectivity of the system.

“A culture which tacitly assumes that all evaluative judgments are expressions of subjective personal preference or attitude, will have a great deal of difficulty accepting, or even appreciating, that some evaluative judgments are in fact the application of objective laws and not the whims or preference of individual persons,” he says.

“Given those judgments are decisions with outcomes that affect people’s lives, such a culture will naturally understand those outcomes to be the product of those personal preferences.”

Confirmation bias

Steven Mark, from UNSW’s School of Law & Criminology, agrees that there is a growing mistrust of the legal system as most people shift onto social media.

Even though the “rule of law is pretty strong in Australia”, the public’s faith in it is constantly under attack from low-level discourse on social platforms, he suggests.

A big part of the issue, he says, is that platforms like Facebook and Instagram reinforce users’ views and drive confirmation bias: the tendency to look for information consistent with already-held beliefs. The problem grows as traditional media declines.

“The public is now getting its information through social media not mainstream news, and even mainstream news is becoming politicised (while) social media is totally politicised,” he says.

“We only watch the stuff that confirms what we believe … We have become bifurcated as America has as England has, as all social democratic society have because of the lack of truth in the media. We don’t have any place to go to tell us what truth is.”

Two other factors –  lack of public understanding of the law and politicians criticising judges –  has laid the groundwork for social media chipping away at faith in the rule of law, he says.

He argues that now more than ever the only people who actually understand legal process are lawyers, while judgments these days are too often critiqued by attorneys-general.

The pick-up in political grandstanding has been underway for some time. Federal Court Justice Steven Rares observed back in 2017 that an “unfortunate trend” was the use of social media to make “inappropriate, populist or contemptuous attacks” on judges.

While in the past, attorneys-general saw it as their duty to “respond robustly” to inappropriate attacks, including from parliamentarians, on judges, they “no longer see their role as such protectors of the judiciary from such populist attacks” Rares said at the time.

Mark cautions that the legal profession can also be prone to the social media age’s “emotive” thinking. He says if lawyers are allowed to use their emotions as their main driving force, rather than their understanding of evidence and the law, “then that can be a problem.”

At the same time, whether it is the public, politicians or lawyers venting on social media, its impact on confidence in the legal system should not be overstated, according to Hugh Breakey, senior researcher at Griffith University’s Institute for Ethics, Governance & Law.

Social media as ‘amplifier’

In Breakey’s view, there is no social-media driven “wholesale doubt” about the rule of law at present in Australia.

“If we talking about the ability of a society to live in a realm governed by law, which is what he have in Australia, and if nobody believed that judges were capable of doing that then … we would no longer have the rule of law in that sense,” the academic says.

“People would no longer modify their behaviour in line with what the laws say.”

However, it is possible that people are doing “a lot of emotional thinking”, which could colour how they view judicial decisions, he says.

He describes this as people’s emotional responses “being where they land on a particular issue and not being comfortable with interrogating it themselves”.

“They’re then extrapolating that out to everybody else and thinking ‘well everybody else is the same as me they just have big emotional responses,” Breakey suggests.

But pinning this mindset – if it exists – on the growth of social media is a fraught exercise.

As Breakey explains: “It’s just difficult to make these types of judgments, to be able to look out at society and … try to speculate about what the forces might be.”

In any case, he says the rule of law is “forever fighting a running battle against judges and other authoritative decision makers who can make decisions in a partial way, who can make them in a biased way, who can make them in a self-interested way”.

Given the complexities in play, Wallmans Lawyers partner Paul Gordon – a specialist in social media law – suggests thinking of social platforms as viewpoint “amplifiers”.

While it is hard to say right now if social media is responsible for degrading faith in the rule of law, Gordon says the capacity is there as more Australians boost their voices online.

“You might previously have said something around the kitchen table or a barbecue to your mates about what happened in court. Now when we say something it can not only be published to your contacts but also then be rebroadcast to a much wider audience,” he tells LSJ.

“When that happens absolutely it can have a much greater impact than we’ve seen in previous parts of history.”

Additionally, social media amplifies stories that dent confidence in legal process, he says.

Recent media coverage casting doubt on the Royal Commission into the Robodebt Scheme – widely “rebroadcast” via social media – is a case in point, according to the lawyer.

“You might say the questioning of the Robodebt Royal Commission at the moment is equally raising concerns as to – not necessarily the rule of law – but the system of justice in Australia where you have the former prime minister saying it was incorrect, unfounded, politicised et cetera,” Gordon says.

“That is then broadcast on traditional media and then rebroadcast on social media and I think that does have a potential to raise questions about how the system of justice works.”

Platforms clampdown

Looking ahead, Gordon says discussing cases online could be banned, but concedes that could “get into trouble” with the implied right to freedom of political communication.

Social Cut’s Doyle, meanwhile, urges getting tougher with social media companies.

“This could mean employing mechanisms to prevent the display of content related to specific cases,” she says. “Implementing such a measure seems challenging without regulatory oversight, but in an era where impartiality can be jeopardised by a single social media post, it might be a necessary step.”

For UNSW’s Mark, a good starting point would be education on the legal system in schools.

He says legal studies these days is available mostly in private schools, leaving thousands of public-school children without a basic understanding of legal structures and processes.

“It really would be a good idea for schools to revisit something they were into 50 years ago and that is doing a bit of education in civics and a bit of education in the court system.”