(Image: Private Media)

When NSW Supreme Court Justice Robert Beech-Jones presided over the first day of a legal challenge to New South Wales’ vaccine worker mandates, it was probably the largest trial audience he’d ever had — even though the court was physically empty. 

Tens of thousands of people watched proceedings on YouTube — nearly 60,000 at one point. All up 1.4 million people watched the official broadcast across four days. Many joined via hyperlinks shared to anti-vaccine and conspiracy groups.

Groups with fringe ideologies such as anti-vaxxers or neo-Nazis are a new challenge for courts in the digital age where taking part in a legal proceeding is as easy as joining a Zoom call. Courts had to adapt to the COVID-19 pandemic by going virtual. As early as March 2020, Australian courts moved to hold proceedings primarily over the phone or using videoconferencing software. With these setups, the public can observe but generally have to contact court staff to get access. 

Some high-profile cases or hearings have live-streamed proceedings on public platforms such as YouTube so users don’t have to contact the court to watch.

The Australian Judicial Officers Association and the NSW Supreme Court staff tell Crikey they supported trying to make it easier for the public to witness justice. By allowing more people to see the rigour and fairness of the court, the argument goes, the legal system will build more trust. The more people who see it, the better. 

But what about when bad actors want to use this attention? Fringe movements use stunts, hijacking events and producing content like propaganda to grow their movements. The allure of a courtroom is that it’s a new platform for these digital-savvy groups to use, according to conspiracy theorist researcher Dr Mathew Marques: “There is a risk for that information to be co-opted and used as propaganda.”

Two Australian neo-Nazis, Thomas Sewell and Jacob Hersent, are facing court over charges that they assaulted hikers during a camping trip for the right-wing extremist group National Socialist Network. Members of the network and others in Australian extremist online communities have coordinated to watch proceedings and troll the courtroom.

Users joined the virtual court with usernames like Based51 — combining “based”, a term of praise for online racists, with a reference to the number of people killed in the Christchurch massacre — and James Mason, the name of a famous neo-Nazi. Two virtual participants flashed pictures of a gorilla doing a Nazi salute and a fake nude image of US politician Alexandria Ocasio-Cortez.

Some of these dog whistles were recognised by court officials who kicked users out, whereas others were allowed to stay — much to the amusement of the neo-Nazis watching. When court reporters wrote about their antics, they shared it with each other with messages of glee at the attention from mainstream publications.

In a case about allegations of violence where witnesses have had their identities suppressed out of concern for their safety, the participation and active trolling of extremists is a latent threat too. 

Melbourne Magistrates’ Court has been approached for comment. 

During the NSW vaccine mandate challenge, the audience’s participation was an issue. Beech-Jones was inundated with emails after his contact details were circulated in anti-vaccine, anti-lockdown and conspiracy online groups. He told the court that the 1800 emails from people expressing their opposition to vaccines meant that it was difficult to find correspondence regarding matters he was presiding over. 

“People who do so are at risk of interfering with the administration of justice and anyone who encourages this is equally encouraging interference in the administration of justice,” he said. 

The livestream of the case attracted attention as barristers representing the challenge’s plaintiffs shared evidence casting doubt on the legality of vaccine mandates as well as the efficacy and safety of vaccines. While these were summarily dismissed by Beech-Jones in a judgment, lecturer in digital media at Queensland University of Technology Dr Timothy Graham says airing the views in a public forum lends them credibility.

“It adds to a kind of false equivalency, where clips from the proceedings may be demonstrating the value of the other side of the argument, making it appear like there’s an argument when in fact there are none,” he said.

Like how Senate estimates have become a backdrop for politicians to create content to go viral on social media, a broadcast of a court case — and the signals of credibility that come along with it — serve as perfect fodder for the content mill. And we’ve seen that happen: despite a ban on recordings, footage from the hearings were clipped up and shared online on alt-tech websites like Rumble and Bitchute with descriptions like “a huge step towards a jail cell for these criminals”.

The lack of friction associated with watching a broadcast online (or derivative clips) means it’s likely that viewers watched smaller portions than if they had physically attended court. If that’s the case, it pours cold water on the premise that observers will see ideas and arguments critiqued and judged through the adversarial nature of court proceedings. 

Barristers during the vaccine mandate challenge noticed that the number of people streaming dipped when the defence spoke in favour of vaccines. The judgment which found many of the plaintiff’s claims to be lacking credibility was not as widely shared in conspiracy groups as the YouTube link. 

The decision to move to live stream court cases has been welcomed as a way of making Australia’s judicial system more accessible. But doing so brings a risk that the system will be manipulated and misrepresented. In our current information ecosystem that prizes short, sharp snippets of content that evoke extreme emotion, this is a hazard for all institutions that rely on nuance and trust. The court can take steps to moderate these risks, including increasing their moderation abilities and protecting those people suddenly exposed to enormous audiences.

Despite the road bumps, it appears the courts see live streaming as the way forward.

“The [NSW Supreme] Court will continue to live stream cases with increased public interest including class actions and criminal sentences,” it said.