Social media trial
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This article has been written by Nehal Misra, a student at Nirma University, Ahmedabad. In this article, she discusses the insights related to social media trials.

Introduction

Media trial is a phrase describing the impact of television and print media coverage on a case through an attempt by the media to hold the accused guilty even before the trial begins. Article 19(1)(a) of the Constitution grants its citizens freedom of speech and of expression. However, this freedom is subject to reasonable restrictions pursuant to Article 19(2), which states the restrictions “in the interests of India ‘s sovereignty and integrity, state security, foreign relations, public order, morality or contempt of court, defamation or incitement to an offence.”

Media is the 4th pillar of the country responsible for keeping the other three organs of democracy in check. It’s responsible to report issues that matter objectively. However, since its inception, the media is misusing its power to undermine the judiciary by crossing the ethical line. The media plays a prominent role in our society. Jeremy Bentham said, “There is no right where there is no attention. Publicity is the essence of justice itself. It is the strongest spur to exertion and the most sure of all guards against improbation”. The Supreme Court defines media trials as “the effect of television and newspaper reporting on a person’s image by generating a common presumption of guilt, irrespective of any decision in a court of law.”

The social media usually portrays the accused as a villain not based on facts but only to sensationalize the news, which causes damage to the dignity of the accused. Media through their trial attempts to reincarnate itself into a ‘public court’ and interfere with court proceedings. It fails to analyze the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. According to Ray Surette, ‘trial-by-media’ has three basic flavors- 1. Sinful Rich type 2. Evil stranger psychotic killer 3. Abuse of Power trial. The media sticks to this stereotype. Therefore a need arises to pull the media’s reins and put reasonable restrictions so that judicial decisions are not undermined shortly.

What is a social media trial

The Internet provides access to vast amounts of information in mere seconds and allows users to broadcast their thoughts to millions and receive near-instantaneous responses through web-based “social networking” or “social media” services. These services include well known social networks like Facebook and Twitter. Social media refers to websites and applications which enable people to share content quickly and efficiently. Social media has become an integral part of each individual’s life as it is accessible through smartphones, computers, and tablets. Aristotle described the man as a social animal. Social media is a platform that makes this objective easily accessible. However, the intervention of the media in under-trial cases has become a common phenomenon. With social media into play, each person can indulge in freely giving their opinions without any communication barrier. The absence of any communication barrier reflects that the opinions or views expressed are at a global portal, and these opinions might play an effective role in framing the views of others.

Reincarnated as the public court, the media separately starts an investigation and forms public opinion. Under the democratic form of the government, it’s healthy to have a social media functionary to express opinions freely under freedom of speech and expression. However, most of the time, the freedom of expression controversy is created due to the sub-clause (2), Article 19 of the Constitution of India. It does not embrace the freedom to contempt of court. Though social media helps to bring change in society sometimes it is driven by selfish or fake reasons. 

Social media trial is an intrusion and an ethical breach. It has become a trend that social media performs the function of the judiciary of investigating the truth. The judiciary system has the key responsibility to provide justice to society in stipulated time. Nonetheless, practically it is now hardly seen. Not only people wait to obtain justice for years, but also they sometimes become bound for oblation to buy justice. Thus, in the developing countries, media trials are getting prominent day by day due to the extreme pendency problem and decreasing trend of faith in the judicial system, the public supports the trend of trial by media. 

Historical aspects

Certainly, the notion that mass media would affect the legal process clearly goes back to the beginning of the printing press, and perhaps much further. One of the first trials prosecuted by the media in the 20th century was Roscoe ‘Fatty’ Arbuckle who was convicted by the courts but lost his career and reputation because of the media coverage. There was another A-G v. Fraill case where Joanne Fraill was sentenced in 2011 by London’s High Court to eight months in jail for contempt of court for sharing Facebook messages with the accused in a drug trial when she sat on the jury. A UK juror had been removed from a court for child abduction and sexual harassment after asking her Facebook friends’ to help her decide on the verdict. Convictions have been overturned and mistrials declared when it was discovered that juries had accessed information on the Internet that had not been presented in court.

In Benbrika v. The Queen, the Victorian Court of Appeal dismissed an appeal in which it had been argued that Internet searching by jurors had tainted the trial. The notion that discussions between friends on Facebook might be considered less serious than other publications was reinforced in a 2012 Western Australian Supreme Court case where Hall J refused to relocate a trial because prejudicial and threatening statements about the accused had been posted to Facebook.

Families and relatives of people accused of crimes have recently used the influence of social media to reopen proceedings. In the cases of the murder of Jessica Lall Priyadarshini Mattoo, Nitish Katera, BMW, and Aarushi, media influence was observed in full swing. In 2015, a Delhi woman, Jasleen Kaur, posted a photo of a man, Sarvjeet Singh, on Facebook and accused him of sexual harassment. The Facebook post went viral which was followed by a media trial labeling the man a ‘pervert’, ‘Delhi ka darinda’ (the Delhi’s predator). Four years later, the man was later found out to be innocent by the Delhi court and was acquitted of all the charges. The widespread use of social media influences the legal process. More importantly, the regular usage of platforms such as Twitter and Facebook are present threats to the fair trial ideal.

Problems associated with it

Justice Sikri commented that the media has undergone a complete transformation in the digital age and “we are in the era of paid and fake news”. Social Media has a broad coverage which can easily sway the opinion of an individual.  The problems associated with it are- Media’s portrayal of previous crimes of the accused creates prejudices in the minds of people and judges during a trial. Moreover, discussion of social and economic factors related to the cases also causes hindrance on the road to impartiality. Social media is a strong medium influencing and molding public opinion.

By publishing inadmissible evidence and bringing it into the public domain, the media could bring facts to the attention of the judge (and the public) that can not be taken into consideration when adjudicating the matter. Those facts may subconsciously affect the decision of the judge. Social media causes defamation to persons who are acquitted from the Courts on grounds of lack of proof beyond a reasonable doubt. They face difficulty to resurrect their reputation in society. The media in its quest for sensationalism fails to realize that such exposure jeopardizes the right to a life of dignity of the accused. 

In cases of a sexual offense, the explicit description of the ordeal on television creates mental torture to the victim. Also in such cases, the media instantly places public domain initial statements of the victim in verbatim form. Thus it is evident that media trials lead to a breach of privacy, a bias in public opinion, as well as interferes with the sentencing process. With the advent of social media, the information on legal cases is reaching the multitude through Facebook, Twitter, and other social media platforms.

Though they are a platform for discussion, they have of late become a place of hatred, trolling, and bullying too. In high profile cases, Twitterati goes berserk and starts taking sides without checking facts.  Social media has been, in the aftermath of the # metoo campaign, a medium for demonizing, thrashing, and attacking the suspected suspect even when the case is not yet in court. Jurors established an online poll that published all the evidence and then asked to cast a guilty or not guilty vote. When the trial is still going on they pose these questions. Such disclosures violate the trial judge’s instructions and impugn the integrity of the trial. The juror who turns to social media reflects that he no longer believes in the procedure of the trial and forms decisions through the media. 

Impact on the society and legal system

Social media trial is wherein the individuals themselves do a separate investigation and form public opinion against the accused even before the court takes cognizance of the case. It creates prejudices in the public and sometimes even judges. Due to this the accused, instead of being assumed innocent is presumed to be a criminal. It not only interferes with the “administration of justice” but also propagates a false message to society. The society starts forming their opinions based on their own notions rather than relying on the judiciary.

Social media is a very powerful medium that affects and molds public opinion. Through reporting inadmissible evidence and putting it into the public domain, the media draws the judge’s attention to details that are not to be addressed in adjudicating the case and could subconsciously influence the judge’s judgment. The other thing is organizational fairness. The court’s judgment is based on biases and challenges in the path to justice and fairness. Under our law a suspect/accused has the right to a fair trial and is presumed to be innocent until proven guilty in a court of law. Thus, their prejudices emerge as a vice to society that influences public minds. The most famous example is the KM Nanavati Case, where the public opinion affected the conviction of the accused.

Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression and Article 19(2) allows for reasonable restrictions to be imposed by law for the purposes of ‘Contempt of Court’ including. Art. 19(2) does not apply to ‘administration of justice,’ but interference in the administration of justice is specifically referred to as contempt in the definition of ‘criminal contempt’ in Section 2 of the Contempt of Courts Act, 1971 and Sec. 3 thereof. Consequently, publications that interfere with or appear to interfere with the administration of justice constitute criminal contempt under that Act, and where the terms of that Act enforce restitutions in order to avoid such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid. 

The Supreme Court in A.K. Gopalan v. Noordeen 1969 (2) SCC 734 held that a publication which is made after the ‘arrest’ of a person amounts to contempt if it is biased to the suspect. Criminal contempt is divided into three types: scandalizing, prejudicing trial and hindering the administration of justice. The principle of natural justice states that “every accused has a right to a fair trial” and the principle “justice may not only be done it must also seem to be done” reflects the need of a fair trial. Contempt was introduced to prevent unjust and unfair trials. Publications of any sorts should not poison the minds of jurors or attempt to intimidate the witnesses in which the administration of justice is impossible, amounts to contempt.

Fair trial

Parties have a constitutional right of a fair trial in the court of law. This trial is conducted by an impartial tribunal or uninfluenced by newspaper dictation. Democracy demands fair play and transparency, and if these are curtailed then the very concept of democracy is at stake. Any act is done or writing published which attempts to lower the authority of the Judge, or interferes with the course of justice amounts to contempt of Court. In the case of  R. v. Gray, [1900] 2 Q.B.D. 36, it was held that contempt by speech or writing may be by scandalizing the Court itself, or by prejudicing against a party before the cause. Speeches or writings misrepresenting against the proceedings of the Court or prejudicing the public for or against a party is contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. The issue is not regarding the publication but with interference in the administration of justice.

In Sushil Sharma v. The State (Delhi Administration) and Ors, the Delhi High Court held that conviction should be based, if any, on record facts and not on media reporting. The judge who is dealing with the case should be neutral. With Gupta and Ors in Saibal Kumar. B.K.V. Sen & Anr. the Supreme Court held that no comparison existed between a media trial and a court-run trial. The right to a fair trial is the absolute right of each citizen within India’s territorial boundaries vide Article 14 and Article 20, Article 21 and Article 22 of the Constitution. The right to a fair trial is a significant right deriving from Article 21 of the Constitution r / w Article 14. In contrast to one’s right to freedom of speech and expression, one’s life with dignity is also given priority.

In India, Section 499 of the Indian Penal Code governs the defamation law, and has extended to “electronic documents” as well. Section 469 of the IPC (forgery for the purposes of harming reputation) was amended by the Information Technology Act, 2000 to include ‘electronic record fabricated’ Section 66A of the Information & Technology Act 2000 (IT Act), which was quashed by the Supreme Court of India in Shreya Singhal v. Union of India, due to confusion in the section’s meaning of the term ‘negative.’ The section suggested that sending offensive messages to a computer or to some other means of communication would be an offense. Under Section 66A, such unfettered power was exploited by the State in curtailing and curtailing people’s freedom of speech and expression, and therefore abolished. The trial is essentially a process to be carried out by the courts. The trial by social media is definitely an undue interference in the process of justice delivery. 

Conclusion

The importance of freedom of expression in a true democracy is undeniable. No democracy can work without an effective platform to express opinions. The social media has immense power, and if the power is misused, it can severely harm a nation. The onus of responsibility falls on the individuals themselves to check and ensure that no harm is committed and also the public should be more media literate and understand fact from fiction. Though social media acts as a platform to bring people’s voice to the notice of society and legislatures however in present times it creates negative influence rather than a positive effect. This is evident through the present cases such as the bois locker room incident. A 12th class student committed suicide due to false allegations posted on him through social media platforms. This revelation highlights the toxic mentality of the one who incited rape allegations. Through the Snapchat conversations, a very important lesson has been learned- to stop the instant social media trials.

The Judiciary and the Media are the third and fourth pillars respectively of a democratic setup. They are indispensable for the smooth functioning of the system. While the former should duly consider the latter’s freedom and right to cover and disseminate news of court proceedings in an open justice system, the latter, on the other hand, should also show due diligence and extreme caution while reporting the latter in order to preserve the former’s sanctity and to ensure a free and fair trial. The most appropriate way of regulating the media is to exercise the Court’s contempt jurisdiction to punish those who breach the basic code of conduct. Social media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself.

An ideal proposal at this time will be not to allow the trial on social media. It is certainly an ideal proposition to require regulated media coverage of cases until the media is expected to benefit from the profit and sensational considerations. Social media must play a facilitator’s role, rather than tilting the scales in favor of one party or another. The widespread use of social media in the community, prevailing attitudes that social media discussions are less ‘official’ than a traditional press, and ready access to jurors’ online information present unique challenges to the 21st-century justice system.

References


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