Twitter reporting from corporate trials is changing the work of legal departments

Communication via Twitter is moving into courtrooms at a furious pace and particularly with respect to major corporate trials between/against companies and corporate managers. Just a few recent examples are the Lufthansa proceedings against the trade union GdL, the dispute between the bank BayernLB and Hydro Alpe Adria or the white-collar crime trials with well-known defendants or witnesses (Eccelstone, Middelhoff etc.). Ultimately, all national court trials of journalistic interest can be affected by this new development, from shareholder disputes, patent litigation and labour court proceedings, to public procurement procedures, cartel damages actions, product liability litigation and white-collar crime cases.

It had already become an increasingly necessary task of legal departments to provide legal support with respect to the impact of high-profile proceedings on shareholders and stakeholders, to arm management with legally stable arguments and – mostly in collaboration with communication departments – to establish a sound position of the company in its internal and external communication, also in terms of German press laws (the keyword here being litigation PR). What is new, however, is the speed with which the (undisputedly expert and serious) industry and business press from the broadsheets Frankfurter Allgemeine Zeitung and Handelsblatt to the legal publisher and information service JUVE are acting: namely live and directly from the courtroom, via Tweets every minute, which when labelled with hash tags can also still be identified later as an information campaign. This will change the necessary work done by legal departments in future: it will not just become quicker, but also its content will be different.

These live Twitter reports are at any rate permissible under German procedural law regulations. According to German procedural law, hearings including the handing-down of all decisions and judgements are strictly “public”, i.e. accessible to the interested public. This – constitutional – principle that there are no secret courts is governed by Sec. 169 of the German Courts Constitution Act (GVG). Audio and television or radio recordings as well as audio and film recordings, on the other hand, remain prohibited, if one disregards the special regulation in Sec. 17a of the German Constitutional Court Act; i.e. live recordings with moving pictures are not permissible, but live listening and the forwarding of information in text form (which is silent and does not disrupt court proceedings) is. Twitter provides the first suitable technical tool for this. Before this, it was simply unheard of that parties and witnesses left the courtroom and are immediately confronted “outside” by a whole range of opinions formed on the basis of the fact that statements just made in the courtroom (or refusals to give evidence) are already the subject of lively discussions amongst reporters and the public.

All these things will change the work of the corporate lawyers involved in such cases. A growing need for a parallel hash tag screening can for example be predicted – certainly first and foremost in corporate communication departments in the case of ongoing court proceedings, so that a campaign can be launched immediately: there may be a need for the direct preparation of corrective press releases, unscheduled telephone conferences of the investor relations department may be required or works councils, customers or suppliers may want to talk to the company at short notice. This will all mean the need for close collaboration with in-house lawyers in order to clarify the legal situation and the legal consequences of “countercommunication”.

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