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  • Writer's pictureDurham Pro Bono Blog

Trial by Media: When Ill-Informed onlookers become Judge, Jury and Executioner

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


Social media and ‘cancelled culture’ stirred on by online tabloids are conducting ‘trials by media’. Although guilt being decided outside court rooms is not a new thing, the ease with which media sources can hound people online is new. I am writing this article in the days following Caroline Flack taking her own life[1], after a period of intense scrutiny by the press and on social media, having been accused of domestic assault. Her death is a undoubtedly a tragedy. Whilst suicide is a complex issue and speculating about causes is not generally helpful, the general impact of brutal attacks, faced by the likes of Caroline Flack who were obviously suffering with their mental health by both the press and social media, should be recognised and a renewed pressure should be placed on ending them.



What is Trial by Media?


Trial by media occurs when a high-profile figure accused of a crime is determined to be guilty or innocent by television or newspaper coverage before a decision is reached by a court of law. Such instances have been heightened by social media and so-called ‘cancelled culture’ whereby anyone, despite having limited access to actual facts, can determine and state publicly whether they believe a person is guilty and then demand that that person is ‘cancelled’. ‘Cancelling’ someone usually calls for them to be fired from their employment and often incites widespread hatred and ‘trolling’ against the person. In effect they become the judge in dictating the trial, the jury in deciding their fate and executioner in terms of their career and reputation.


Why is Trial by Media dangerous?


Trial by media is dangerous as it threatens fundamental principles of law such as the presumption of innocence until guilt is proven. Twitter and the tabloids lack the evidence of a court case to prove guilt beyond a reasonable doubt. The media rushing to presume guilt is highly dangerous as proven by the case of Cliff Richards. The BBC reported that Richards was being investigated for historic child sexual assault claims, going as far as to show live footage of the police searching his house. Cliff Richards was ultimately cleared of any wrong-doing[2], however his reputation and career were ultimately damaged.


Social media and the press also threaten the concept of a fair trial.

How can defendants in high profile cases expect a fair trial when the media has already publicly declared them guilty?

Whilst in theory jurors are not allowed access to media reports about crimes they are trying, the existence of social media in a system where cases are taking longer and longer to get to court makes the judgment of the press unavoidable. The reality is that it is impossible to effectively prevent jurors from being exposed to or influenced by social media or the tabloids. The danger of public influence on criminal trails, was seen in the case of R (Venables and Thomson) v Home Secretary[3]. The case concerned two ten-year olds who had tortured and murdered a toddler. On appeal it was found that the Home Secretary had acted unlawfully by taking into account a public petition calling for the boys to be imprisoned for life when sentencing them. The right to fair trial is a human right and it is of paramount importance that this is protected.


Furthermore, ‘trials by media’ and ‘cancelled’ culture forget another key element of law: the balance between justice and mercy. IF found guilty, the sentence must correspond to the crime. In the case of Caroline Flack, she was charged with assault by beating which is a section 39 offence under the Criminal Justice Act[4]. S.39 offences have a maximum sentence of six months in prison[5], but those convicted are more likely to receive a fine and/or community service. Instead of a relatively minor sentence, Caroline has paid the price of her life, having had her career and reputation destroyed. Instead of being tried in a court, she faced the much more brutal fate of trial by media. A trial whereby guilt is presumed, actual facts are minimal; defences are rejected without consideration, and the inevitable sentence: to be ‘cancelled’ is served at any cost.


The Problem with the Press:


Freedom of press is incredibly important. It is often the first thing to be sacrificed in the absence of democracy. However, this should not justify the press determining guilt without sufficient evidence, in order to make a profit. Furthermore, in the crusade against the accused, tabloids in particular, routinely invade the privacy of cases often threatening investigations or trials. Such treatment is perhaps best evidenced by Kate and Gerry McCann, the parents of the missing Madeline McCann. The News of the World published extracts from Kate’s personal diary without her permission[6]and multiple publications such as Express Newspapers, ran stories accusing them of being responsible for their daughter’s death[7]without conclusive proof. This was not only psychologically damaging to parents who were already going through hell, but quite frankly slanderous. The Hillsborough tragedy is also a horrific example of tabloids (particularly The Sun[8]) misappropriating blame without knowing sufficient facts, having widespread ramifications on the investigation and preventing justice for those killed.


This was also the case for Caroline Flack. Immediately following her arrest and in the weeks that followed, countless articles were published in the British Press, going as far as to publish photos of blood stained sheets[9](the press reported it was her partners blood but it is now believed to be her own blood.) and describing her ‘manic’ episode, all appearing to declare her guilty despite the absences of a legal conviction.


The press is very quick to judge but it is less quick to be judged.

The limited repercussions of widescale press abuses such as the phone hacking scandal, are indictive of a political system whereby tabloid titans such as Rupert Murdoch hold too much power.


The Problem with Social Media:


In the aftermath of Caroline’s death the sections of the British Press and representatives of the Prime Minister’s Office have been quick to blame social media and ‘cancel culture’. The impact of such should be heavily scrutinised. Caroline was declared guilty from the get-go with thousands demanding that ITV should sack her. This is classic of the vile ‘cancelled culture’ that we are growing accustomed to on social media. Even after her death, Twitter was aflood with comments criticising her, calling her cowardly for not standing trial. But Caroline Flack had already faced one trial, a trial that had cost her dearly both in terms of her career and her mental health[10].


A trial she had acknowledged herself on social media, just weeks before her death-

this kind of scrutiny and speculation is a lot to take on for one person to take on their own…I’m a human being at the end of the day”[11].


The cruelty of social media is widespread. Recently, celebrities such as Taylor Swift, Dua Lipa and Jesy Nelson have spoken out about the devastating impact that social media bullies have had on them, and their mental health. Social media provides a platform whereby anonymous trolls can repeatedly bombard anyone with horrendous messages including death threats. If you tell someone to kill themselves in person, that can constitute a criminal offence, so why is it so rampant on social media?


The obvious flaws of social media and the devastating impact that it can have on the mental health of its victims is a plague of the 21st century. However, social media exacerbates rather than negates the problems caused by the press. Press reporting has a greater impact when articles can be shared with billions of people in a matter of seconds. Even if they transpire to be inaccurate or premature, the headlines are designed to be remembered.


How Politicians need to act:


Whilst freedom of speech and of the press is highly important (Article 10 HRA 1998), as is the right to privacy (Article 8 HRA 1998). Politicians need to review and legislate to create a better balance between the two rights. This is of paramount importance when considering a third right, the right to a fair trial (Article 6 HRA 1998).


Passing legislation to prohibit the publication of names of defendants until they are, or if they are found guilty, would help to maintain that balance. The press would be free to dictate what they like after a guilty conviction. This would not stop outlets from reporting incidents, they could report the facts without naming the individuals. This gives the courts a better chance at conducting fair trials. This would allow defendants who are found not guilty to reclaim their lives, and it would also offer better protection to victims. If you name the defendant, often it is not hard to work out (or speculate) who the victim is, undermining their right to anonymity.


There should also be greater accountability for online trolls. Too often they are protected by their anonymity. New legislation requiring more stringent identity verification on social media would potentially help this. People are a lot more likely to be abusive when they think it cannot be traced back to them. The government’s announcement this week that social media sites will now be regulated by Ofcom[12]is hopefully a step in the right direction to reduce trolling. There have been too many cases of children killing themselves as a direct result of cyber bullying on social media platforms. Furthermore, tougher laws making trolls liable for slander, libel and harassment on social media would also go a long way in preventing rampant trolling.

Freedom of speech does not mean that people should be free from the consequences if their words cause significant harm.

Conclusion:


Whilst pressure should be placed on politicians to prevent people being tried and harassed by the media. What would undeniably have the most impact is people being kind. There is nothing wrong with expressing opinions, but there is a way to do so without viciously attacking people. If you want to help domestic abuse survivors, put pressure on the government to introduce better protections for survivors, to rehabilitate offenders, to ensure better (well-funded) legal system and support charities who help survivors. What does not help is holding a show trial whereby anyone can be judge, jury and executioner. It is not our place to destroy someone’s career based on speculation. It is for the law to provide appropriate consequences to crimes. It is too late for Caroline Flack, but it is not too late for the next person publicly accused.

My thoughts remain with Caroline’s family and loved ones.


If you are suffering from cyber bullying, mental health issues or suicidal thoughts, there is always someone to talk to. If you would like to speak to someone please contact Durham University Nightline on the number on your campus card or Samaritans on 116123 (phone), or jo@samaritans.org (email).


Anna Noble

Section Editor

Politics


SOURCES


[1]BBC New, ‘Caroline Flack: TV presenter dies at 40.’ 15/02/2020.

[2]BBC News. ‘Cliff Richard: Singer wins BBC privacy case at High Court.’ 18/07/2018.

[3]1997 UKHL 25

[4]Criminal Justice Act 1988 c 33.

[5]Sentencing Council. ‘Common assault/ Racially or religiously aggravated common assault.’ GOV UK. Accessed 18/02/2020.

[6] B. Dowell. ‘News of the World apologises for publishing Kate McCann’s diary.’ 22/09/2008.

[7]Liverpool Echo. ‘Madeline McCann’s dad Gerry attacks tabloid newspaper lies.’ 11/03/2009, Updated: 8/05/2013.

[8] The Sun. ‘We are sorry for our gravest error.’ 13/09/2012.

[9]R. Dale. ‘Bedrooom Bloodbath. Shocking pic shows Caroline Flack’s blood-soaked bed after her ‘lamp attack on boyfriend Lewis Burton’.’ The Sun. 31/12/2019.

[10]S. Vine ‘Beautiful, talented Caroline Flack was tried and convicted by the merciless of social media.’ The Daily Mail. 16/02/2020.

[11]Caroline Flack Instagram post. 24/12/2019. Instagram.

[12] A Hern, J Waterson. ‘Ofcom to be put in charge of regulating internet in UK.’ The Guardian. 12/02/2020.

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