“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security … to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
- Article 6, Human Rights Act, Convention for the Protection of Human Rights and Fundamental Freedoms
The basic human right to a fair and impartial trial is seen as something of a legal “standard”. However, in recent years, the meteoric rise in usage of social media platforms, such as Facebook and Twitter, has been identified as posing a risk to the integrity of jury trials.
Several examples of this – from tweeting the identity of alleged assault victims to commenting on a Facebook news story about a live case – have caused significant problems for active legal proceedings up and down the country. Most recently, in Scotland, a 39-year-old woman was held in alleged contempt of court
for publishing images of the 16 year old boy accused of murder on the Isle of Bute.
Whilst no further action was taken against the woman, social media does pose a real problem for the legal world – especially in high profile, high emotion cases such as this.
Jurors – in any case – are asked to deliver a verdict based solely on the information presented to them in court. This, surely, cannot be possible when basic, everyday tasks such as a Google search or scrolling through a social media news feed could throw up all sorts of prejudicial commentary or images.
The Contempt of Court Act (1981) prohibits information being published during active trials that could hold influence over the verdict. The maximum penalty for being found guilty of Contempt of Court, in Scots Law, is two years imprisonment. The law applies to all publications. Obviously, when it was written, social media did not factor into the legislation. Now, however, it is a medium all of its own that does fall into the category of publishing information. The problem is, unlike a newspaper, the vast majority of content on social media is not harnessed by editorial control.
Newspapers, magazines, radio shows and podcasts that have their own social media channels are also, in turn, responsible for the comments that appear under links to articles. Whilst the articles themselves may not be in breach of any laws – and journalists tend to be more understanding of what is and isn’t acceptable to print – the comments underneath may well be.
As BBC legal correspondent
Clive Coleman explained, “The rise of social media has meant that conversations about criminal cases, once had down the pub or over the garden fence, are now instantly published online - and can be shared with thousands.”
The problem may well be the blurring of lines. Reading a story on Facebook doesn’t necessarily feel like “hard news”. So, perhaps, social media users are not aware of the consequences of commenting on such posts. It’s not being dictated by a newsreader or a print publication. It’s on a social platform next to pictures of people’s holidays and location check ins.
With the proliferation of stories about footballers and actors in relation to the #MeToo campaign, many people may not recognise that commenting on a social media post is potential prejudicial. In extreme examples, people directly connected with live cases have posted commentary online. In 2008, a story in The Telegraph
revealed that one woman – a juror on a child abduction and sexual assault case - showed a lapse of judgement when she created a Facebook poll, asking her friends, family and colleagues to help her decide which way to vote.
As writer Cathryn Evans notes
, “Social media is a fact of modern life, but its impact on the right to a fair trial is still being measured. While jurors and the public have always had the capacity to break the law, social media has made this much easier and more permanent.”
The Crown Office in Scotland has prompted a legislation revision on social media crimes such as revenge porn, whilst the Scottish Law Society has said it will investigate bringing Scots Law up to date to reflect crimes such as defamation via social media. However, neither of these processes – necessary though they are – seem to take into account the issue of commenting on live cases.
Meanwhile, under English and Welsh law, the former Attorney General, Jeremy Wright QC, launched a public consultation in 2017 to decide whether or not social media was putting the right to a fair trial at risk. He is quoted in The Guardian
newspaper as saying, “We have to keep a balance between the principle of freedom of speech and the integrity of the trial process.” The article goes on to suggest that even archived media content – for example, old news stories that could still be viewed or read online – were also liable to cause problems.
Currently, neither English nor Scots law is any further forward. Social media is not going away and has radically altered the legal landscape almost as much as it has changed how we communicate, share pictures and digest news. With over 2 billion people each month logging into Facebook, it has become the biggest social media platform in the world. And, with that, come many advantages and disadvantages.
Whilst some of the people have utilised social media to pass judgement on live cases have, ultimately, released without charge, it is unlikely that this will be the “norm”. If anything, we may well see a handful of individuals heavily fined – or even imprisoned – in order to make clear the severity of sharing potentially prejudicial comments, photos or news stories in relation to live trials.