In a time where everyone is famous for fifteen minutes and TMZ is king, what should the rules be on publicly commenting on a case before the court?

Under the sub judice rule, publicly commenting on a case becomes a problem when it is meant to interfere with a court proceeding.

Applying the rule was easier when publishing was concentrated in the hands of a few. And newspapers dominated the dissemination of current events.

However, nowadays newspapers are hemorrhaging subscribers, while new media transforms those very same readers into publishers. In this new egalitarian and diverse world, where trials are live-tweeted, we must re-examine the sub judice rule to make it relevant to today.

But re-configuring the rule is no easy task. The mind reels with questions. Would a trial be compromised if a litigant Tweets up a storm during their own trial? What if nobody reads the Tweets? What if a person uses social media to preempt a lawsuit?

Last October, Jian Ghomeshi stirred up a storm when he tried to get ahead of a story with his now infamous Facebook post. Clearly, he was trying to influence the court of public opinion and maybe even the minds of judges and jurors since quickly thereafter he launched his $50 million lawsuit against the CBC for wrongful dismissal. If his Facebook post was litigated, how would it be decided today?

The answer is unclear. Unfortunately the case law has not kept pace with the rise of social media and the fall of print media. In a time where anybody and everybody is a broadcaster, a publisher, and an influencer, the sub judice rule must take on new meaning.

For more information on the sub judice rule, read Dean Lorne Sossin’s article “A Comment on ‘No Comment’“.