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Nothing gets people going like a scandal. Celebrity escapades, sexual deviance, lawbreaking – all whet the national appetite for a good story. Rightly or wrongly, people have a burning desire to know about the less polished aspects of famous strangers’ lives. Difficulties arise, however, when instances of celebrity wrongdoing lands them in court. The right to a fair trial can be frustrated by mass publicity. The more notoriety a case receives, the more media coverage it generates. Tension between a free press and fair trial standards is not a new phenomenon. Since the inception of mass media, cases have been influenced by popular opinion and news reports. With every technological advance, this discord has grown more strained. With information democratised by the internet and social media, is the tension getting out of hand? Can the right to a fair trial ever be fully realised when the full weight of the media’s influence is felt?
Article 6(1) of the European Convention on Human Rights (ECHR) reads:
“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. Judgment 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 in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
When the ECHR was drafted in the late 1940s, media publicity clearly exerted enough of an influence to warrant safeguarding against it internationally. It was acknowledged even then that “publicity would prejudice the interests of justice,” and that the press and the public could be removed from part or all of the trial’s proceedings if this was the case. The wording “independent and impartial tribunal” is important here – does mass media in the digital age preclude the possibility of a truly impartial tribunal in famous cases?
The media exercises a degree of control over public opinion. Media bias against a party involved in a trial takes its toll; if negative information is consistently circulated and reinforced in the press, both juries and judges may form an opinion based on material outside of the courtroom. The media often rely on emotive and dramatized language to increase the impact of a story, which can adversely affect the objectivity of those involved in the case. Such language can offer a powerful counterweight to factual evidence, distorting the fairness of the trial. The memory of witnesses, jurors and judges alike can be retrospectively influenced by press coverage. Arbitrators may deny being influenced by external forces, but it is arguably impossible to remain utterly objective in the face of a media onslaught. Such publicity often takes place before the trial has even began, warping the presumption of innocence before the facts have been presented. The extent to which the media exerts an influence on trial proceedings is up for debate, but at the bare minimum it can be said that the news can help set the parameters for the debate, to frame it in opinion rather than in fact.
This influence can be felt in the great media cases of recent history. The quintessential publicity versus facts case is surely the OJ Simpson murder case, in which extraordinary media coverage played an integral role in the outcome. Judge Ito, along with other senior figures related to the case, were accused of succumbing to the power of the media in finding a not guilty verdict. In more recent memory, the trials of Amanda Knox and of Oscar Pistorius demonstrated the tension between freedom of the media and the right to a fair trial. Facts are drowned out by the barrage of emotion-driven, often unsubstantiated claims in the press. Therein lies the danger – the media is less constrained than the law in terms of permissible evidence. Media furore often results in a case of guilty before trial, in which the arbiters of justice are headlines and editors instead of judges and jurors.
Perhaps the clearest examples of media versus courtroom are injunctions. Publicity is not only a factor in court proceedings but is ultimately the subject of the verdict. Democratic principles of free press and fair hearing are at loggerheads, weighing the reputation and privacy of individuals against the right of the media to publish what it chooses. This has been borne out in the recent ‘celebrity threesome’ case – a juicy name even in the world of celebrity scandal.
The case revolves around a famous married individual taking part in extramarital activities, being caught, and consequently taking out an injunction against the press. Understandable comparisons have been drawn with Ryan Giggs' injunction controversy in 2011. Though not explicitly bound up in the right to a fair trial, the journey of the threesome case up the UK Courts ladder has implications for the media’s influence on the fairness of proceedings. At the Court of Appeal, Lord Justice Jackson seemed to endorse the futility of injunctions, stating in an outspoken judgement that “the internet and social media have a life of their own. This court has little control over what foreign newspapers and magazines may publish. Websites discussing the story will continue to pop up.” In the modern day, argued Jackson, injunctions may be defunct. He added that:
“the Court should not make orders which are ineffective. It is inappropriate for the Court to ban people from saying that which is common knowledge. Knowledge of the relevant matters is now so widespread that confidentiality has probably been lost.”
This appears to indicate a bending of the law to accommodate the might of the media, perhaps a tacit acceptance that the availability of information in the digital age negates the validity of injunctions. The law in the ‘celebrity threesome’ case seems to have been interpreted progressively by Lord Justice Jackson, despite the ruling that the injunction still stands. If senior figures in British justice see media as capable of influencing the way in which law is interpreted, perhaps this indicates a tipping of the scales towards the press in its tension with the law. The ever-growing power of social media and online publications continues to democratise information and make it increasingly available; can the law remain in tension with the freedom of the press, or does this signal a shift in the dynamic? Perhaps the future of press versus the courtroom relationship is one of accommodation rather than conflict.
