New rules could see an end to tweeting in court during cases that include the disclosure of sensitive corporate information. Until then, a communications team ought to be vigilant. Neil Gibbons reports

“Very often, sensitive material emerges in the course of a trial, the sensitivity of which is not immediately apparent”.

This truism from the Judicial Office for England and Wales’ consultation into “the use of live, textbased forms of communications from Court for the purposes of fair and accurate reporting” looks set to reduce brands’ exposure to the risk of their sensitive courtroom disclosures finding their way onto Twitter.

The consultation, which runs until 4 May this year, isn’t confined merely to criminal law. While it focuses largely on the risks posed by Twitter use to jury independence, as well as the potential for witnesses who have yet to give evidence being forewarned of evidence already given, it also acknowledges that the courtroom environment can cause sensitive corporate information to enter the public domain.

However well rehearsed and briefed a witness, when faced with an aggressive advocate and the nerve-wracking isolation of the witness box, there’s every chance sensitive information might spill out. Tweeting from court is therefore a potential investor relations and corporate comms nightmare.

“Courtroom tweeting is only likely to be a problem under certain circumstances,” says Oliver Lawson, associate in the Dispute Resolution team at Stevens & Bolton LLP. “However, given that the fallout for a quoted company and its shareholders could be a spectacular loss of share value, goodwill, reputation or all three, the issue merits some consideration. Depending on how, how widely and by whom that comment was tweeted, a lot of hard work establishing a particular corporate image could be undone pretty swiftly.”

He adds that in certain industries, such as pharmaceutical and TMT, intellectual property and patent litigation can have a very direct influence on the profits and business model of firms operating in those sectors. “Tweeting from the courtroom of, for example, interim judicial observations as to the validity of a patent could have an immediate effect on market perception and consequently those firms’ share price.”

Currently, if someone wants to tweet from court they have to apply to the judge for permission. But Lawson advises companies involved in cases at which or damaging information could come out in evidence to consider who might look to publish information on the proceedings on Twitter, and monitor their Twitter output. “Larger companies’ PR and IR teams may do this anyway, but smaller companies may not,” he says.

Likewise, if tweets start coming out of court without any application having been made, your barrister should urgently bring this to the court’s attention. “It is contempt of court to tweet without permission and the judge will treat this seriously,” he says. “It’s unlikely a member of the recognised media would tweet without permission but a blogger or activist may do, either from ignorance of the rules or in the hope that no-one notices.”

If an application is made to tweet from court, he says, the company would probably want to oppose it on the grounds that it could cause unnecessary share price volatility and reputational damage – although the court will take into consideration that there is nothing to stop someone leaving and posting the relevant information from outside the courtroom.

Finally, Lawson advises companies to ensure their solicitor is aware of any information that could be price sensitive and which is relevant or affected by the evidence in the matter. In that way if permission has already been given then an application could be made for it to be withdrawn. This would have to be done carefully, however, as there would be a risk of the sensitive information (which may not have been appreciated by those listening) being highlighted.

Depending on the outcome of the consultation, it might even be deemed appropriate for there to be a presumption that such tweeting should be prevented in any case involving a listed company