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immediacy of social media challenging Judicial system W hile social networking has thrown open the public's access to much information and mis- information almost instantly, the courts are in damage control. At a recent seminar on media and the law, lawyer Dan Burnett questioned how open the courts system could remain as judges try to restrict the flow of information by legitimate journalists when a whole other realm of citizen journalism is being posted in cyberspace. He pointed to the June Stanley Cup riot in Vancouver. "The riot really laid bare the issue of publica- tion bans," he said. After the riot, web sites showed pictures of individuals allegedly committing crimes while others posted their pictures on sites openly bragging about their participation. Also, photos of many younger individuals whose identi- ties would be protected — if charged — were openly displayed on social networks. Media outlets would have to remove such postings or pictures. Robert Anderson, another Vancouver media lawyer, called the rapid spread of information through mobile devices to social sites such as Facebook, blogs, and Twitter a "massive revolution in the application of technology" and one where the "courts are trying to play catch up" especially since "Parliament has left the courts to fend for themselves. "The defamation issues are a complete nightmare," said Anderson. British Columbia Supreme Court Justice Geoffrey Gaul, commenting person- ally, said he is not convinced keeping his courtroom open to all kinds of record- ings and broadcasts "serves the purpose of justice although it may serve the pur- poses of journalists." He said his duty was ensuring a fair trial. He was concerned live streaming or tweeting might intimidate the appearance and testimony of witnesses, affect the trial behaviour of participants, or jeopardize the safety of jury members who are viewed. He also expressed concerns that mobile devices might interfere with the courts' electronic recording devices. Gaul, responding to a question, admitted there was no empirical evidence showing streaming live information not under a publication ban would affect participants or jeopardize a fair trail. Vancouver Sun crime reporter and panellist Kim Bolan says currently reporters simply step into the hall to tweet. However, an issue not addressed at the seminar was how social media and the posting of information on the Internet will now affect jury selection as individuals receiving a summons can access information regarding the alleged crime or death where he or she might be a potential jury member. Another issue is how various age and user groups use social media. An example given was Bolan's ability to gain a wiretap relating to a U.S.-Canadian investigation into crime and posting it on the Internet in December 2009. It was not noticed for over a year until a defence lawyer asked for it to be removed. Courts at various levels are grappling with the issue of social media reporting both by journalists and non-journalists. "The [B.C.] Supreme Court is addressing these issues as we speak." Gaul said the courts have systems that "put a finger in the dyke" but "the information highway" was creating a whole new kind of jour- nalism and civilian reporting. The question has become one of "how do we go about building a new dyke?" — JEAN SORENSEN jean_sorensen@telus.net EQUITY PARTNERS CAN BE EMPLOYEES A n equity partner in a law firm can be considered an employee and therefore can go before the British Columbia Human Rights Tribunal to get redress for alleged human rights violations, the B.C. Supreme Court ruled in Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal). The case revolves around Fasken partner John Michael McCormick, who was asked to retire when he reached 65 on March 28, 2010. The retirement requirement is spelled out in an equity partnership agreement requiring the partner start the transition when he or she turns 62. McCormick did not want to retire and took the unusual action of taking his firm to the B.C. Human Rights Tribunal claiming age discrimina- tion as B.C. has eliminated mandatory retirement rules. The tribunal agreed to hear the case, accepting McCormick's argument that being an employee extended beyond the common law definition. The law firm went to the B.C. Supreme Court for judicial review over the tribunal's jurisdiction. It argued McCormick was not an employee but an equity partner and therefore fell outside the tribunal's scope. In a June 2 ruling, Justice Catherine Bruce said if it was a business partnership it might preclude any ability to file a complaint to come before the tribunal, but McCormick's partner- ship position didn't fall into that category. "Mr. McCormick is an equity partner with very little control over his work life, his remuneration, and his work product. . . . In this partnership, an individual equity partner cannot determine his own wages and working conditions. Nor does he have the power, through his voting rights or his bargaining strength to change the partnership agreement in ways that would be favourable to him. An individual partner is always subject to the wishes of the majority and the control exer- cised by the managing partners and the execu- tive board. It is by these means that the firm represents a relationship with Mr. McCormick that is more reflective of an employer/employee relationship. . . ." — JS Read the B.C. Supreme Court's ruling in at www.CANADIAN Lawyermag.com A U GUST 2011 13 aaRon bell Folumbia ask c C en C-McC om/FM Martineau (Human DuMoulin Rights ormick. LLP T ribunal) v. British tin yurl.