The Courts and Social Media in Sierra Leone - Navigating Peril and Promise

Few developments have reshaped the environment in which justice is administered in Sierra Leone as profoundly, or as quietly, as the smartphone. Within little more than a decade, Facebook, WhatsApp and X (formerly Twitter) have become the principal arenas in which Sierra Leoneans receive news, debate public affairs and, increasingly, comment on matters that are before the courts. A High Court arraignment in the morning is dissected on a hundred WhatsApp groups by the afternoon; a Court of Appeal judgment is celebrated or condemned in Krio on Facebook before the ink on the order has dried. For the Bench and the Bar, this is neither an unalloyed threat nor an unmixed blessing. Social media is at once one of the gravest contemporary risks to the fair administration of justice and one of its most under-exploited instruments.

The task before the legal profession is not to wish the phenomenon away, an impossibility, but to govern our relationship with it deliberately. This article examines both faces of the question. It considers, first, the perils: the rise of “trial by social media” and the strain it places on the sub judice rule and the constitutional guarantee of a fair trial; the scandalising of the courts and the erosion of confidence in the judiciary; the contamination of witnesses and jurors; and the propriety of judges and practitioners who themselves inhabit these platforms. It then turns to the promise: the use of social media to effect service of court documents, to advance open justice and transparency, to widen access to justice through public legal education, and to improve the sheer efficiency of court administration. It closes with proposals for a framework that the Judiciary and the Sierra Leone Bar Association might profitably adopt.

The Sierra Leonean setting gives this discussion a particular edge. In 2020, Parliament repealed Part V of the Public Order Act 1965, the criminal and seditious libel regime under which generations of journalists had been arrested and imprisoned, through the Public Order (Amendment) Act 2020, and enacted the Independent Media Commission Act 2020 in its place. That reform, long demanded by the Truth and Reconciliation Commission and by the Human Rights Commission, transformed the climate for expression and was rightly hailed as a milestone for the freedom guaranteed by section 25 of the 1991 Constitution. Yet the following year the Cyber Security and Crime Act 2021 introduced a fresh suite of offences, cyberstalking, cyberbullying and related conduct, that some fear may, if applied without restraint, re-criminalise online speech through the back door. The courts must now mediate this tension. They do so, moreover, in a small and densely networked society where juries in serious criminal trials are drawn from a limited pool, where almost every actor in a case is reachable on Facebook, and where rumour travels faster than ruling. Both the dangers and the opportunities are therefore sharper here than in larger jurisdictions.

A new public square

Sierra Leone’s legal culture inherited from England a settled architecture for the relationship between courts and the press: open courtrooms, a free but accountable media, and the law of contempt standing guard over the integrity of proceedings. That architecture assumed a relatively small number of identifiable publishers, newspapers, radio stations, who could be held to professional standards and, if necessary, to legal account. Social media has dissolved that assumption. Every citizen with a handset is now a potential publisher, broadcasting to an audience that the colonial-era draftsman of the Public Order Act could never have imagined. The “citizen journalist” operates without the editorial discipline, the in-house legal review or the professional training that, in practice, keeps mainstream reporters on the right side of the sub judice line.

The 2020 repeal must be understood against this backdrop. It was an unambiguous gain for liberty: speech that displeases the powerful is no longer a passport to a police cell. But the repeal did not abolish all legal limits on expression. Civil defamation survives under the Defamation Act 1961, and a person whose reputation is traduced online retains a remedy in damages. The Cyber Security and Crime Act 2021 supplies criminal sanctions for a range of online conduct, and the law of contempt, the subject of much of what follows, remains fully in force. The challenge for the courts is to hold these instruments in proper balance: to protect the administration of justice and the reputations and dignity of individuals without resurrecting, under a new statutory name, the chilling regime that the nation so recently dismantled. A Cyber Act prosecution that looks, to the ordinary observer, like the old sedition charge in modern dress would squander the moral capital of 2020.

Trial by social media and the sub judice rule

The most immediate danger is the phenomenon of “trial by social media.” The sub judice rule, from the Latin, “under judicial consideration,” restrains the publication of material that has a real tendency to prejudice or interfere with proceedings that are pending or active. Its purpose is to ensure that cases are decided in court, on admissible evidence tested by cross-examination, and not in the court of public opinion on the strength of rumour, leaked statements and partisan commentary. The rule is the handmaiden of the fair-trial guarantee in section 23 of the Constitution, which entitles every person charged with a criminal offence to a fair hearing within a reasonable time before an independent and impartial tribunal.

That guarantee is placed under acute strain where, as in Sierra Leone, serious criminal charges are still tried by jury. Jurors are members of the public; they read the same WhatsApp broadcasts and Facebook posts as everyone else. Where a defendant’s alleged confession, previous convictions or supposed bad character circulate online before, or during, trial, the risk that a juror arrives at, or returns to, the box with a verdict already half-formed is no longer theoretical. Comparative experience is instructive. In DPP v Johnson & Yahoo!7 (2016), an Australian court confronted the publication online of material about an accused that was never in evidence; the episode illustrates how a single prejudicial post can imperil a trial. Empirical study of social media commentary during the Baden-Clay murder trial in Australia found that, while professional journalists generally reported without prejudice because they understood the law of contempt, ordinary users posted opinionated and prejudicial material with little awareness of the line they were crossing.

Sierra Leone is hardly immune. Our West African neighbours offer cautionary tales. In Nigeria, the spectacle of the “media trial” in which suspects are paraded, confessions are aired and guilt is pronounced on social media long before arraignment — has provoked sustained academic and judicial concern, the courts repeatedly warning that such conduct subverts the presumption of innocence and may constitute contempt. In Uganda, the Chief Justice has had to remind the public that the internet is not a free-speech zone immune from the law, and to contemplate guidelines on the reporting of cases. The doctrine that English law has applied for a century and a half that prejudicial comment on a matter that is sub judice is impermissible, does not evaporate because the comment is a tweet rather than a leading article. In England, the principle is reinforced by the strict-liability rule under the Contempt of Court Act 1981, by which liability for prejudicial publication may attach irrespective of any intention to interfere with proceedings.

The difficulty in our setting is one of enforcement and of culture. It is one thing to commit a newspaper editor for contempt; it is another to discipline the thousands of anonymous or pseudonymous accounts that drive online conversation. The realistic response is not mass prosecution but a combination of clear guidance, selective and principled enforcement against the most egregious and identifiable offenders, and above all public legal education, so that Sierra Leoneans come to understand that commenting on a live case is not a harmless pastime but a potential interference with another person’s right to a fair trial.

Scandalising the court and public confidence

A related danger concerns attacks on the integrity of the courts themselves. The common law has long recognised a form of contempt, sometimes called “scandalising the court,” directed at publications that lower the authority of the judiciary or impute corruption or bias to judges in their judicial capacity. The governing balance was articulated by the Privy Council in Ambard v Attorney-General for Trinidad and Tobago (1936), a decision of enduring authority throughout the Commonwealth. Lord Atkin’s formulation remains the touchstone: “justice is not a cloistered virtue.” Judges and their judgments may be subjected to respectful, even outspoken, criticism by ordinary citizens, provided they refrain from imputing improper motive and do not act in malice. Fair comment on a decided case is the right of every member of the public; it is the lifeblood of an accountable judiciary.

Social media tests that balance daily. The distance between legitimate criticism of a judgment and a baseless allegation that a named judge has been “bought” is, online, often a single intemperate post. In a small society, where the judge, the litigants and the commentators may all be known to one another, such allegations spread with corrosive speed and inflict lasting damage on public confidence in the courts. The Judiciary has a legitimate interest in protecting itself from campaigns of calculated vilification that threaten the administration of justice. Yet here, more than anywhere, restraint is essential. A profession and a country that fought for fifty-five years to free public commentary from the threat of imprisonment cannot now permit contempt to become the instrument by which judicial criticism is silenced. The line must be policed with a scrupulous regard for section 25 of the Constitution: genuine, even robust, criticism of judicial reasoning is protected; the deliberate and unfounded imputation of corruption, calculated to undermine confidence in the courts, is not.

Witnesses, jurors and the contamination of evidence

Beyond commentary lies a quieter set of risks to the evidential integrity of proceedings. Jurors, contrary to their oath, may conduct their own “research” online, discovering material that has been deliberately excluded as inadmissible or prejudicial. Witnesses may compare accounts, coordinate their stories or be influenced by the public mood through the very platforms on which the case is being litigated in parallel. Identities protected by law — those of complainants in sexual offences, or of children — may be exposed by a single careless post; in England, individuals have been prosecuted for naming, on social media, a victim entitled to anonymity. Sierra Leonean practitioners should assume that the same exposures occur here, less visibly only because they are less often detected.

Social media also increasingly furnishes evidence. Posts, messages and metadata are now staples of litigation, and the Cyber Security and Crime Act 2021 provides part of the framework for the collection and admissibility of electronic evidence, subject to the safeguards of judicial oversight, necessity and proportionality. This is a genuine forensic advance, but it carries its own hazards: the ease with which accounts are fabricated, screenshots doctored and identities spoofed means that authentication cannot be assumed. The Bar must develop the technical literacy to challenge and to defend such material, and the Bench the discernment to weigh it. A screenshot is not self-proving.

The propriety of judges and practitioners online

The courts and the profession are not external observers of social media; they are participants in it. Judges, magistrates and legal practitioners maintain personal accounts, and their conduct online bears directly on the dignity and impartiality of the institutions they serve. A judge who comments on matters of public controversy, who engages in partisan exchanges, or who reacts to a pending case, even obliquely, may compromise, or appear to compromise, the impartiality that section 23 requires and that the Bangalore Principles of Judicial Conduct enjoin. The appearance of bias is as damaging as its reality.

Practitioners face their own temptations. Counsel who litigate a matter on Facebook in the evening, who disclose privileged or confidential information, who disparage opponents or the tribunal, or who comment publicly on the merits of a live case, expose themselves to professional discipline and bring the profession into disrepute. The duties of the advocate to the court and to the client do not pause at the login screen. The Sierra Leone Bar Association would do well to articulate, clearly and in advance, what those duties require of its members in the digital age, rather than waiting to address the question in the heat of a disciplinary complaint.

Service of court documents through social media

If contempt is the peril most discussed, service of process is the opportunity most neglected. The service of originating process,  the formal delivery to a defendant of notice that proceedings have been commenced, lies at the foundation of procedural fairness: a court ordinarily has no business adjudicating against a person who has not been told that he is being sued. The classical rule requires personal service. But the law has always recognised that personal service may prove impracticable because a defendant cannot be found, or actively evades the process server and has provided the remedy of substituted service. Under the High Court Rules 2007, the court may, on proof that prompt personal service cannot be effected, authorise service by an alternative mode reasonably calculated to bring the proceedings to the defendant’s attention. Historically, that meant service by post, by delivery to a relative, or by advertisement in a newspaper.

Across the common law world, courts have recognised that, for many defendants, a private message on Facebook is far more likely to come to their attention than a notice buried in a low-circulation newspaper. The pioneering decision was MKM Capital Pty Ltd v Corbo and Poyser (2008), in which the Supreme Court of the Australian Capital Territory permitted service of a default judgment on evasive defendants through Facebook, satisfied from the personal details on their profiles that the accounts were genuinely theirs. Canadian, New Zealand and English courts soon followed; in 2009 the High Court in England authorised service of an injunction through Twitter on an anonymous impersonator who could be reached no other way. In Baidoo v Blood-Dzraku (2015), a New York court allowed a wife to serve a divorce summons on her elusive husband by Facebook message, reasoning that it was the method most likely to give him actual notice, more so than the antiquated and costly expedient of newspaper publication. The trajectory has reached statutory recognition: Texas amended its Rules of Civil Procedure to provide expressly for substituted service through a defendant’s social media presence.

These authorities also mark out the limits, and Sierra Leonean courts should adopt them with the same care. Service by social media is not a first resort; it is available only where conventional methods have been attempted and have failed. The applicant must satisfy the court of three things: that the account genuinely belongs to the defendant, that it is in current and active use, and that service upon it can reasonably be expected to bring the proceedings to the defendant’s attention. Where these conditions are not met, the courts have refused: in Qaza v Alshalabi (2016) a New York court declined Facebook service because the plaintiff could not show that the account was still in use, and the Oklahoma Supreme Court, rejecting notice by Facebook in an adoption matter, memorably dismissed it as a “mere gesture” where there was no assurance the recipient checked the account. Due process is not satisfied by a message dispatched into the void.

For Sierra Leone, the practical case is compelling. We are a jurisdiction without a comprehensive system of residential addressing; defendants who do not wish to be found are easily lost; and a substantial diaspora means that defendants frequently reside abroad, beyond the convenient reach of personal service. Newspaper advertisement, the traditional fallback, is often a fiction, expensive, of negligible readership, and unlikely to reach a defendant who, like most Sierra Leoneans, takes his news from Facebook and WhatsApp rather than the print press. A carefully regulated jurisdiction to permit substituted service through verified social media accounts, hedged by the safeguards the comparative cases supply, would advance rather than imperil procedural fairness. It would make notice more real, not less.

Open justice, notice and transparency

The same platforms that can prejudice a trial can also illuminate the workings of the courts. Open justice is a constitutional value, not merely an administrative convenience: justice must be seen to be done. Yet for the ordinary litigant in Freetown or the provinces, basic information, when a matter is listed, before which judge, in which courtroom, with what outcome, has too often been difficult to obtain, accessible only through the intercession of court “runners” and the small corruptions that information asymmetry breeds. The publication online of cause lists, hearing schedules, practice directions and, crucially, judgments would strike directly at that culture. The growth of the Sierra Leone Legal Information Institute (SierraLII), which makes legislation and case law freely available, points the way. A Judiciary that communicates its own work,  accurately, officially and promptly, also inoculates itself against misinformation, for the surest antidote to a false account of a ruling is the authoritative text of the ruling itself.

Public legal education and access to justice

Social media is, additionally, the most powerful instrument for public legal education that Sierra Leone has ever possessed. A population that does not know its rights cannot assert them, and a population that misunderstands the courts will not trust them. Short, accessible explanations of how bail works, of what an accused is entitled to, of how to commence a small claim, of the difference between a civil and a criminal wrong, reach more citizens through a well-run Facebook page than through any number of printed pamphlets. The Bar, the Judiciary and civil society organisations engaged in legal empowerment can use these channels to demystify the law and to bring it closer to the grassroots, in Krio as well as in English. Properly harnessed, the very medium that spreads rumour about the courts can be turned to the building of an informed and confident citizenry.

Efficiency and the modernisation of court administration

Finally, the embrace of digital communication is in keeping with the broader modernisation of court administration. The pandemic compelled courts across the world, Sierra Leone included, to experiment with remote hearings and electronic communication, demonstrating that much court business can be transacted without the cost and delay of physical attendance. Messaging platforms already serve, informally, to circulate cause lists and to coordinate hearings among counsel and registry staff; regularised and secured, such tools can reduce adjournments, shorten delay and ease the burden on litigants who travel long distances at great expense for matters that are not reached. Service by social media, electronic filing and online publication are not isolated novelties but components of a single, coherent project: a Judiciary fit for the technological realities of the society it serves.

Toward a coherent framework

The argument of this article is that social media demands neither prohibition nor passivity from the courts, but governance. Several concrete steps would help to secure its benefits while containing its risks.

First, the Judiciary should issue a Practice Direction on social media and the sub judice rule, stating plainly when the contempt jurisdiction is engaged, what categories of comment on pending and active proceedings are impermissible, and how the rule applies to ordinary citizens as well as to the press. Clarity in advance is fairer, and more effective, than punishment after the event.

Second, guidance, whether by practice direction or by amendment to the High Court Rules, should expressly confirm the availability of substituted service through verified social media accounts, and codify the safeguards the comparative jurisprudence has developed: proof of ownership, proof of active use, and a reasonable likelihood that the proceedings will come to the defendant’s attention.

Third, the Judiciary should adopt a social media policy for judicial officers, grounded in the Bangalore Principles, and the Sierra Leone Bar Association should publish complementary guidance for practitioners, addressing comment on live matters, confidentiality, privilege and professional courtesy online.

Fourth, the courts must apply the Cyber Security and Crime Act 2021 with a vigilant eye to section 25 of the Constitution, ensuring that offences framed to address harassment and abuse are not pressed into service to suppress legitimate, if uncomfortable, expression. The hard-won reform of 2020 must not be undone by interpretation.

Fifth, the Judiciary should invest in its own authoritative digital presence — official channels for cause lists, judgments and public information and in the wider digital infrastructure (electronic filing, case management, remote hearing capacity) of which such communication forms part. Public legal education through these channels should be pursued as a deliberate strategy, not left to chance.

Conclusion

Social media is not a passing fashion that the courts may safely ignore until it recedes. It is the medium through which Sierra Leoneans now live a substantial part of their public lives, and it will shape the administration of justice whether the profession engages with it or not. The same instrument that can poison a jury, scandalise a judge and expose a protected witness can also deliver real notice to an evasive defendant, throw open the workings of the courts to public view, educate a citizenry in its rights and lighten the daily burdens of litigation. The choice before the Bench and the Bar is not between social media and its absence, but between drift and direction. With clear rules, principled enforcement and a measure of imagination, the courts of Sierra Leone can ensure that this most democratic of technologies serves, rather than subverts, the cause of justice. That is a task worthy of the profession’s best energies, and it cannot wait.

Osman Jalloh, LLB; BL.; LLM; Msc. Management; ADIT; MCIArb; Notary Public and Commissioner for Oaths is a Legal Practitioner of the Superior Courts of Judicature of Sierra Leone with over 19 years of active professional legal and litigation practice experience at all levels in the superior courts of Sierra Leone He is also actively involved in arbitration both a legal Counsel and as an Arbitrator.