Foreword
Dimitar Markov
Director of Law Program
Center for the Study of Democracy
For various reasons, crime and criminal justice have always been in the focus of attention of both the general public and the media. Over time, the uncontrolled dissemination of information and media coverage of criminal cases have raised concerns about the rights of suspects and accused persons and in particular the presumption of their innocence and their right to fair trial. These concerns became even more valid with the rapid evolution of information technologies, which brought the access to information to a whole new level. The internet, social networks and video sharing platforms have made it possible for information to spread extremely quickly and easily reach a huge audience. Moreover, unlike before, today information is easily accessible for a very long time and news dating back more than ten years can be found with just a few clicks.
Meanwhile, the evolution of fundamental rights led to the recognition of the presumption of innocence as one of the main principles of criminal justice and a key guarantee of the right to fair trial of all persons suspected or accused of committing a crime. The presumption of innocence, generally understood as the right to be presumed innocent until proved guilty according to law, has been proclaimed by many national constitutions and international legal instruments. Its interpretation, however, has changed over time. Initially understood as a simple principle placing the burden of proof in criminal cases on the prosecution and prohibiting the conviction of defendants whose guilt has not been proved beyond reasonable doubt, the presumption of innocence gradually evolved, expanding its scope to issues such as forced self-incrimination, references to guilt in public statements of authorities, dissemination of information on criminal proceedings, provision or divulgence of information to the media, presentation of suspects and accused persons in court or in public, etc.
The presumption of innocence, however, is not the only fundamental right that has developed in recent years. The freedom of expression and the right to information, the freedom and pluralism of the media, and the right to privacy have all evolved as a consequence of the rapid technological development and the constant emergence of new means of communication.
Last but not least, newly emerging risks such as terrorism and violent extremism, virus outbreaks and pandemics, and large migration flows, have re-opened the debate about the balance between security and fundamental rights. The search for such a balance is best illustrated by the Directive on the presumption of innocence (Directive (EU) 2016/343), which, in its Recital (18), defines two reasons that justify the public dissemination of information on criminal proceedings: reasons relating to the criminal investigation, such as when video material is released and the public is asked to help in identifying the alleged perpetrator of the criminal offence, or reasons relating to the public interest, such as when, for safety reasons, information is provided to the inhabitants of an area affected by an alleged environmental crime or when the prosecution or another competent authority provides objective information on the state of criminal proceedings in order to prevent a public order disturbance.
In this complex situation, a major role is played by the media themselves. Driven by the desire to reach (and keep) larger audience and pressured by the competition of new communication channels such as social networks and video sharing platforms, the media are often tempted to ignore the fundamental rights of suspects and accused persons and publish information that would affect the presumption of their innocence. At the same time, in many countries, media laws do not address in detail the coverage of criminal cases, leaving the media to define the rules themselves through self-regulation instruments like ethics guidelines or codes of conduct.
In such an environment, suspects and accused persons are exposed to an increased risk of having their presumption of innocence violated either by unlawful disclosure of information by the public authorities or by inappropriate coverage of their cases by the media. If this risk materialises, the consequences for the affected person could be particularly harmful. Although their professional integrity should generally prevent them from making biased decisions, criminal justice practitioners are not immune against public opinion and public pressure. In world history, there are examples of cases provoking fierce public reactions at the time of their hearing that are still overshadowed by doubts about the fairness of their outcome. The potential impact of a violation of the presumption of innocence, however, is not limited to those directly involved in the proceedings. Inappropriate disclosure of information can affect the accused person’s life in many ways, as evidenced by the case law of the European Court of Human Rights and the decisions of some national courts. Loss of job, isolation from the community and family, and damaged reputation in society, are just some of the negative consequences, for which former defendants have claimed and obtained compensations. In some cases, these consequences extend to a broader circle of persons, affecting not only the accused person but also their family members, children or persons with whom they are or have been otherwise connected.
The present report aims to look at the various manifestations of the presumption of innocence in the context of media coverage of criminal cases. It represents a collection of papers by different authors, each highlighting a particular aspect of the topic: from the international legal framework and the case law of the European Court of Human Rights to the disclosure of information in cases of terrorism, cases against politicians and other high-profile cases. By shedding light on different problems related to the implementation of the presumption of innocence, the report intends to draw the attention of policy makers, criminal justice practitioners and the media on the importance of safeguarding the rights of suspects and accused persons in criminal proceedings as a key prerequisite for fair trial.
Disclosure of information and media coverage of criminal proceedings
Introduction
The media has successfully made it as the fourth branch of government in many democracies around the world. Its legitimacy is guaranteed in many national constitutions consequently making it a very relevant sector of society. [1] One of the duties of the media as society’s watchdog has made the media very powerful and allows journalists to set the tone for what social discourses are deemed salient or otherwise. For majority of people, the media is their main source of information and their analysis of issues is largely influenced by what the media portrays as news, documentaries and other broadcast contents.[2] A lot of good has been contributed by the media to the development of democracy and civilisation. These include promotion of free speech and other human rights, which hitherto were not prioritised by governments, and also holding governments accountable for their actions. All these roles played by the media are sanctioned by law.
Presumption of innocence, an entitlement embedded in the right to fair trial and which has been developed into a basic legal principle in many justice systems, is blatantly undermined by the media in their reportages.
Included in the scope of duties the media undertakes in promoting human rights and good governance is putting the spotlight on the justice system and the issues that engulf its operation for public and institutional attention. Interactions between the media and the justice system is depicted in several capacities and this is most evident during interactions with justice authorities at trials and conferences when justice procedures are practiced and elaborated on respectively. The justice system, which is considered complex and less user-friendly by people who frequent the court less, has been made more transparent because of constant media coverage of happenings and analysis of court processes and cases on trial. Although this media intervention seems to bridge the gap between the once obscure justice system and society’s understanding of judicial processes, it exposes parties involved in such judicial processes to unnecessary public attention and scrutiny. This is typical of high-profile criminal trials where suspects or accused persons are put under media spotlights and discussed in a manner imputing guilt. Presumption of innocence, an entitlement embedded in the right to fair trial and which has been developed into a basic legal principle in many justice systems, is blatantly undermined by the media in their reportages. This concept upholds the innocence of accused persons until proven guilty by a court of competent jurisdiction after a plea of guilty is recorded or a full-blown trial has been conducted. Just as the independence of the media, this principle is also constitutionally protected in many jurisdictions, consequently is equally important and must be acknowledged as important, protected and enhanced.
General overview of criminal proceedings
Criminal trials must follow established legal procedures for the purposes of affording accused persons fair trials as well as facilitating an efficient criminal justice system. Police officers, prosecutors, defendants and defence attorneys and judges (and in some cases jury) are the principal actors involved in criminal trials. Depending on the jurisdiction, one of the first steps in criminal proceedings is investigating a complaint and arresting suspects in connection with complaints by the police. During arrest, suspects must be advised of their rights and legal entitlements (referred to as the Miranda Rights in some jurisdictions) and thereafter sent to the nearest police station for further interrogation and/or detention. The police conduct the necessary investigations into complaints and in the process seize materials, record procedures and forwards all evidence, incriminatory or exculpatory, to prosecutors.
The office of the prosecutor determines whether the facts and evidence gathered during investigations are enough to form a prima facie case against the suspect and if this is established, the suspect is indicted and arraigned before court. Prosecutors can equally refuse to formally charge a suspect if the facts and evidence gathered do not support any offence or prosecuting the suspect will not serve the interest of justice.
The next stage is the pre-trial proceeding which includes arraignments sometimes referred to as initial appearance and also preliminary hearings. At arraignments, accused persons are informed of the charges against them and their rights in the course of the trial by a judge. It is during this stage of trial that accused persons plead their guilt or innocence. If the accused person pleads not guilty at an arraignment, the duty of disclosure by prosecution begins. As a right, an accused person is entitled to be furnished with witness statements, documents and all other materials, which are gathered and or seized by the prosecution team during investigation. Materials disclosed must include ones relevant to the trial, unused materials (one prosecution does not intend to rely on) as well as evidence likely to undermine the case of the prosecution team. This is to enable accused persons build robust defences in response to charges proffered against them. Prosecution teams can also reach plea agreements (bargains) with accused persons where accused persons plead guilty in exchange for being charged with lesser offences or a lighter sanction. During preliminary hearings, prosecutors are required to produce evidence showing a probable cause against accused persons.
Before trial and depending on the criminal charge, a jury (which decide on questions of fact) is empanelled to assist a trial judge to decide on the guilt or otherwise of accused persons. During the trial, both prosecution and defence teams present their cases to court by leading evidence to substantiate their cases. In adversarial legal systems, parties dominate the trial and judges act as impartial referees to adjudicate on issues, whereas in inquisitorial legal systems (usually practiced in civil legal systems) judges play active roles in probing and eliciting facts from parties. In trials without jury, trial judges proceed to give verdicts after parties adduce evidence, whilst in trials with jury, judges sum up the evidence adduced and directs the jury to return a verdict. Either way, a conviction or acquittal is rendered and the accused person, if found guilty, is punished by the judge in accordance with legal rules set in place. After sentencing, accused persons who now become convicts reserve the right to appeal against the conviction or sentence in a court above the trial court.[3]
Confidentiality and publicity of criminal proceedings
It has been reported that in 2017 alone, over 900 criminal cases in England and Wales collapsed because of failure of prosecutors or police to disclose evidence to accused persons.
A major way to guarantee justice is fairly administered in the criminal justice system is by creating access to realisation of the right to fair trial. Manifestations of this include ensuring all evidence gathered in a case, either with incriminatory or exculpatory value, are disclosed to accused persons. This sentiment is not just a mere moral duty expected of prosecution teams but has legal basis in legislations in different countries. Failure by prosecution to fulfil this legal duty brings into question the uprightness of the legal system as well as deprives accused person of their right to open and fair trial.
Accused persons have the right to know the evidence prosecution has gathered against them and prosecution must not suppress materials relevant in the determination of charges against accused persons. One of biggest factors leading to unsafe convictions in criminal trials in the United Kingdom has been attributed by the Criminal Case Review Commission to failure by prosecution to disclose evidence/information to the defence. [4] It has been reported that in 2017 alone, over 900 criminal cases in England and Wales collapsed because of failure of prosecutors or police to disclose evidence to accused persons. This figure represented a 70 % increase in the number of dropped criminal cases over a two-year period. [5] The breach of disclosure duties has led to miscarriage of justice manifesting in wrongful convictions or harsh sentencing.[6]
Disclosure processes vary across jurisdictions although it has the principal objective of making all information available and accessible to defendants in criminal trials. This duty on prosecution is captured in the entitlement accused persons have as a right to fair trial. The legal text for disclosure was first expressed as a duty at Common Law owed by prosecution to “disclose any material that is not known to the accused but which may be relevant to sentence, such as information which might assist the accused in placing his role in the correct context with regards to other offenders”.[7] This duty was subsequently expanded on and captured in national constitutions, domestic legislations as well as international and regional instruments under the broader umbrella of right to fair trial. By legislations, it is enshrined in evidence acts and criminal procedure codes and for international instruments, the legal text in Article 14 of the International Covenant on Civil and Political Rights,[8] Article 6 of the European
Convention on Human Rights,[9] Article 7 of the African Charter on Human and People’s Rights,[10] Article 8 of the American Convention on Human Rights,[11] Article 7 of Directive 2012/13/EU [12] and Article 61(3) of the Rome Statute of International Criminal Court (The Rome Statute).[13]
According to Article 14(3)(b) of the International Covenant on Civil and Political Rights, any person charged with a criminal offence is entitled in full equality “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. This right is referred to in general comment no. 32 of the International Covenant on Civil and Political Rights (which replaced no. 13) as “an important element of the guarantee of a fair trial and an application of the principle of equality of arms”. Article 6(3)(b) of the European Convention on Human Rights also speaks about accused persons having “adequate time and facilities for the preparation of his defence”. Article 8(2)(c) of the American Convention on Human Rights also provides that an accused person is entitled, for the determination of his case, to “adequate time and means for the preparation of his defense”. All of these laws do not have explicit text calling for accused persons to have at their disposal all documents prosecution intends to rely on as evidence during trial. In general comment no. 32, adequate time is determined on the circumstance of every case and adequate facilities “must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory”. In Article 7(3) of the African Charter on Human and Peoples’ Rights, accused persons are guaranteed “the right to defence, including the right to be defended by counsel of his choice”. Although this instrument also does not mention specifically the right of accused persons to be furnished with all relevant materials for effective preparation of their defence, defence attorneys can only prepare adequately to defend accused persons if they are given adequate time and are also wholly furnished or given access to evidence gathered in the case. Thus, we can equally impute in this article the meaning of adequate facilities which embodies the right of accused persons to have all necessary information on their cases since that constitutes necessary tools needed to construct a formidable defence. Article 7(1) and (2) of the Directive 2012/13/EU provides accused persons with the right to not only gain access to materials to effectively defend charges against them, but also encourages member states of the EU to ensure such persons get access to information which will help them challenge earnestly their arrest or detention at any stage of the trial. The explanatory memorandum accompanying the proposal for this instrument [14] attributes the derivative source of this right from the right to adequate time and facilities in the European Convention on Human Rights. Article 61(3)(a) and (b) of the Rome Statute however seem to mirror a permissive directive to prosecution in terms of furnishing accused persons with evidence essential for preparing their defence. The article stipulates: “Within a reasonable time before the hearing, the person shall: (a) be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.” The provision does not oblige prosecutors to give copies or access to accused person but to merely inform them of evidence gathered in the case.
Information made available to accused persons by way of disclosure normally includes charging documents and particulars of the offence, statements of accused persons and witnesses, transcript of audio and visual recordings, interviews, expert witness evidence including medical and forensic reports, official documents, exhibits, search warrants, private communication intercept authorisations, similar fact evidence, identification evidence, and witness and accused criminal records. Information to be disclosed may be presented in a documentary or electronic format such as paper documents, photocopies, scans, USB flash drives, CD-ROM or a web-based form.
Apart from the common law and statutory basis, there are other policy guidelines and standard operation models derived from best practices in criminal disclosure around the world, which serve as practice recommendations in criminal trials. The Model Criminal Disclosure Act and Model Prosecution Disclosure Guidelines [15] for example are developed by an expert working group from Commonwealth member countries. This instrument provides model legislative provisions and disclosure guidelines for Commonwealth member countries to pursue in formulating their preferred legal framework on disclosure. Article 7 and Article 8 of the model law prescribes for preliminary disclosure at the commencement of criminal proceedings and full disclosure after a plea of not guilty has been recorded.
Apart from the Criminal Procedure and Investigations Act 1996 regulating disclosure in criminal trials in England and Wales, there are other guidelines which provide guidance on desired disclosure.[16] These are Criminal Procedure and Investigations Act Code of Practice issued under Section 23 of the Criminal Procedure and Investigations Act (the Code of Practice),[17] Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Protocol),[18] Attorney-General’s Guidelines on Disclosure – For Investigators, Prosecutors and Defence Practitioners (the A-G’s Guidelines),[19] Criminal Procedure Rules (Part 15),[20] Protocol and Good Practice Model on the Disclosure of Information in cases of Alleged Child Abuse and Linked Criminal and Care Directions (the Child Abuse Protocol),[21] and The Better Case Management (BCM) Handbook.[22] The obligations laid out in these instruments apply more to prosecution than defence teams. Australia also has in addition to its legislations, the New South Wales (NSW) Barrister rules which oblige attorneys appearing as prosecutors to disclose materials necessary to facilitate fair trial.[23]
Courts have adjudicated on applications on the effect of failure in disclosure by prosecution and conclusions reached amplified the necessity of its proper application. In THE QUEEN v Boardman,[24] the accused person faced stalking charges based on text messages and phone calls of abusive and sexually explicit nature to numerous women. Despite repeated request from the accused person’s attorney of what was described as a master CD of call data of a phone to be tendered in as evidence, the Crown Prosecution Service only made it available few days to the trial start date. This conduct of the Crown Prosecution Service was neither in accordance with the Criminal Disclosure Rules nor the directions of the court. The accused person therefore sought an adjournment in order to have an expert analyse and produce a report on the data which they contended would span over three weeks. The trial judge refused the application for the adjournment and further ruled that due to reasons of delay on the part of the Crown Prosecution Service, evidence of telephone call data records and telephone cell site data would be excluded pursuant to the provisions of Section 78 of the Police and Criminal Evidence Act 1984. The ruling of the court ended the prosecution and the prosecution unsuccessfully appealed to the Court of Appeal.
In the case of DS & TS v REGINA,[25] on the other hand, two men were charged with the offences of rape and other related serious offences. At the time when the trial was scheduled to commence, some materials which were crucial to the case and needed to have been disclosed by prosecution were still outstanding despite being requested for by the defence. The trial started although primary disclosure was incomplete and on the eighth day, the judge on application by the defence, discharged the jury on the ground that the interests of justice and a fair trial demanded that disclosure had to be completed before the defence conduct any proper cross examination. In a subsequent application on abuse of process, the judge dealt with issues of disclosure and raised the concern that prosecution handled the processes poorly and with gross incompetence, lack of training and supervision. The judge concluded however that: “Notwithstanding the seriousness of the charges, I take the view that this abuse is so exceptional the court ought to mark its wholesale condemnation of the prosecution by allowing a stay and refusing the prosecution the right to pursue the case.” The Crown Prosecution Service however successfully appealed the decision by the court to stay proceedings and reasoning amongst other things that the documents which were lately disclosed were of limited materiality to the case. The appellate court however in the ruling extended a call to the Criminal Procedure Rules Committee whether additional sanctions can be made through new rules to secure compliance with disclosure rules.
Exceptions to disclosure rules
Just as other rights, disclosure entitlements are not absolute. Prosecutors may refuse to disclose information although it meets the test for disclosure of evidence in law. This derogation is based on reasons captured in the legislations and guidelines governing disclosure processes. Overall, the exceptions to the right of disclosure can be summed up in the following:
- condition of confidentiality;
- serious prejudice to the public interest;
- purpose of generating new evidence;
- causing serious injury or death to any person;
- obstructing or preventing the prevention, detection, investigation or prosecution of crime.
These reasons cut across laws in various jurisdictions and are all underpinned with considerations of higher interests.
Under Article 7(4) of Directive 2012/13/EU, disclosure right may be overridden “where access may lead to a serious threat to the life or the fundamental rights of another person or if the refusal is strictly necessary to safeguard an important public interest, such as in cases were access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings were instituted”. The Directive subjects the application of this derogation to the national law of member states. A decision to uphold or overrule a claim to derogation must be taken by the appropriate judicial authority in a member state.
In Article 54(3)(e) of the Rome Statute of International Criminal Court, exceptions to the right of disclosure may prevail in “condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents”. Rule 82(1) of Rules of Procedure and Evidence of the International Criminal Court [26] adds up to this exception by elaborating that a prosecutor is not entitled to introduce any material or information protected under article 54(3)(e) of the Rome Statute of International Criminal Court into evidence without obtaining first consent from providers of the material or information.
In England and Wales, prosecutor can take the position not to disclose details of evidence such as sensitive materials although the information satisfies the disclosure test. Sensitive materials mean any information “the disclosure of which, the disclosure officer believes, would give rise to a real risk of serious prejudice to an important public interest”.[27] In Chapter 2 of the Disclosure Manual of the Scotland’s Prosecution Service,[28] sensitive information is defined as information which, if disclosed, would carry “the risk of causing serious injury or death to any person, obstructing or preventing the prevention, detection, investigation or prosecution of crime or cause serious prejudice to the public interest”. Allowing this public interest immunity rests in the bosom of judges and they are equally entitled to refuse such applications from prosecutors where the innocence of accused persons is reliant on the information.
The Commonwealth Model Criminal Disclosure Act and Model Prosecution Disclosure Guidelines defines two categories of disclosure exceptions: (1) the duty to disclose “applies as determined by domestic law in relation to (a) privileged [and/or sensitive] information; or (b) information the disclosure of which is otherwise protected by law; and (2) the duty to disclose “does not apply in relation to information that is not privileged information or otherwise protected by law, the disclosure of which would be likely (a) to cause serious injury or death to any person; (b) to obstruct or prevent the prevention, detection, investigation or prosecution of crime; or (c) to cause serious prejudice to the public interest, where a non-disclosure order has been made”.[29]
Rules governing communication between criminal justice authorities and media
Due to the principle of open justice, communication between criminal justice authorities and the media is very essential. From making available information to public about a trial and educating the masses on legal processes and issues, authorities must ensure the right information is passed on to the media and same is communicated to the public without breaching any legislation, jeopardise the interest of parties involved in the trial or expose them to excessive public scrutiny. All countries have some form of regulations governing the interaction between criminal justice authorities and the media. There exists in England and Wales a protocol which outlines the terms of reference amongst chief police officers, chief crown prosecutors and the media. With this working protocol, materials which should be released to the media by the authorities are outlined. They include materials prosecution relies on in court such as videos and interview transcripts and information of which consent has been sought from relevant victims and witnesses, etc. The release of such information to the media is subject to copyright, data and information laws (Data Protection Act, 1998 replaced by Data Protection Act 2018, the Freedom of Information Act 2000 and Article 10 of the European Convention on Human Rights) and general orders of the court.[30]
The Committee of Ministers of the Council of Europe has detailed recommendations on structuring the relay of information on criminal proceedings through the media for consideration and adoption by member states based on Article 10 of European Convention on Human Rights. In these guidelines, the committee suggests only verified information or information based on reasonable assumptions should be shared with the media through press releases, press conferences and other similar channels. In cases, which span over a long period, authorities are entreated to regularly update the media on their progress without prejudicing the fairness of the trial. The committee also recommends, in accordance with Article 8 of the European Convention on Human Rights, the protection of privacy of suspects, accused persons and convicts especially minors and vulnerable persons.[31]
In the EU, the accused persons are protected under Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data. [32]
In the event of breach of the regulations governing data protection or unlawful processing or disclosure of personal data of a person of interest in a criminal trial including an accused person, a research conducted in 2013 by the European Union Agency for Fundamental Rights revealed that subjects of the data are entitled to remedies specified by member states in their national laws. Common remedies applied in 16 EU member states are compensation and in severe cases the imposition of fines or prison term. This is in fulfilment of the right to data protection and right to effective remedy in Article 8 and Article 47 of the Charter of Fundamental Rights of the European Union (EU Charter).[33] Although the Directive does not directly mention the protection of data of accused person during trials, its applicability to them can be inferred since accused persons fall under the definition of natural persons and their data is most likely to be released by public authorities involved in the prosecution.
According to the Data Protection Act of 2018 of the United Kingdom,[34] courts are still within their rights to provide remedy for unauthorised processing of personal data notwithstanding the fact that the processing falls within stipulated exemptions.
The growing interest in the usage of social media has seen authorities in the criminal justice system expanding their operations to cover such platforms.
The growing interest in the usage of social media has seen authorities in the criminal justice system expanding their operations to cover such platforms. They have navigated the complexities and taken advantage of the convenience and accessibility provided by these platforms to engage directly with the public. Many law enforcement agencies now have one or multiple official agency accounts through which they disseminate information, gather intelligence and enhance community engagement and neighbourhood safety. Individuals may also have personal accounts which may mention their official duties. Some agencies such as the New York City Police Department and Georgia Bureau of Investigations have policies in place to regulate operations on social media.[35] There are also organisations such as the Urban Institute [36] and the Bureau of Justice Assistance (with the support of other agencies),[37] which have developed policy recommendations for law enforcement agencies and policy makers to consider when formulating policies for social media regulation.
Media coverage of criminal proceedings
Media coverage of criminal proceedings, both in and outside the courtroom, is a fulfilment of the commitment to uphold the open justice principle. However, the reportage sometimes conflicts with the right accused persons have to fair trial. Cases covered by the media do not only have the potential of prejudicing trials by creating a biased jury but also affecting the privacy and rehabilitation of accused persons. Generally, national constitutions empower media coverage of all cases in public interest. There are also specific statutes and policies regulating media operations in several countries including reporting and discussing ongoing trials in media spaces. In some Eastern and Southern African countries, different legislations regulate the print media, broadcasting and journalists. Kenya for example has the Media Council Act, Act 46 of 2013, The Kenya Information and Communications Act – CAP 411A of 1998 (KIC Act) and the Kenya Broadcasting Corporation Act, CAP 221 of 1988 (KBC Act) regulating broadcasting generally. Their Act 46 of 2013 however establishes the Media Council of Kenya, which regulates journalists in general by “prescribing standards for journalists, media practitioners and media enterprises, and promoting ethical and professional standards, as well as regulating and monitoring compliance”.[38] In Namibia, broadcasting in general is regulated by Namibian Communications Commission Act 4 of 1992. The Radio Act, Act 3 of 1952, regulates frequency related issues. Other regulations also governing general broadcasting are made by the Minister who acts on recommendations of the Namibian Communications Commission.[39] In America, we cannot talk about media regulations without referencing the permissiveness given to the press under the First Amendment in enshrining free speech and restricting government from formulating laws to abridge the right. Despite the guaranteed free speech right, the Federal Communications Commission established under the Communications Act of 1934 is the body with the primary responsibility of regulating radio and television broadcast.[40] Print media including newspapers and magazines are largely unregulated and are entitled to print varied contents in so far as the contents does not taint of slander.[41] Media platforms, which are fairly unregulated, have adopted self-regulatory ethical and editorial standards against which they measure their practices.[42] In Europe, the Audiovisual Media Services Directive is now in place for EU member states to adopt as the framework to regulate audio-visual media services in the region. This framework harmonises the various national legislations on audio-visual media services and establishes new rules to protect and enhance the audio-visual experience in Europe.[43]
Generally, journalists are allowed into court rooms to take note on proceedings and reproduce them into news for the general public. They also sometimes contact relevant authorities to verify the facts about ongoing cases they are interested in reporting. Information journalists can frame their stories around is restricted in diverse ways including legislations, codes of ethics and orders of judges. These restrictions imply a presumption of information and where such cannot be implied, courts make specific orders to communicate the intention. Most publicity restrictions are primarily related to the identification of minors and victims of sexual offences. Article 6(1) of the European Convention on Human Rights states explicitly circumstances in which press coverage of trials will be constrained. These circumstances are enumerated as “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”.[44] In England and Wales, specific legislations stipulate restriction on the areas of proceedings aimed at shielding from extraneous publicity. For trials of juveniles in Youth Courts, the media is barred from publishing the name, address, school or any information likely to reveal the identity of a person of interest in the trial under 18 years.[45] The Contempt of Court Act of 1981 [46] also empowers courts to restrict or postpone the coverage of legal proceedings for as long as is necessary for “avoiding a substantial risk of prejudice to the administration of justice in those proceedings”. Liability imputed by this Act is strict and broadcasters cannot argue their way out by contending they did not know the published material was sub-judice or their actions was prejudicial to live legal proceedings.[47] In some jurisdictions such as courts in the State of Victoria, Australia, suppression orders (also referred to as gag orders) are frequently issued by courts as a pre-emptive measure against the publication of prejudicial materials. This has been attributed to the frustration of courts to limit sub-judice contempt in the jurisdiction.[48] Breaching laws or orders restricting the publication of court proceedings amounts to contempt of court which is a criminal offense and same is punishable depending on the jurisdiction by unlimited amount in fine or prison term of broadcaster or both. There may be civil remedies available to victims based on specific jurisdictional laws.
Courts have been faced with the duty to determine whether publications of journalists breached restrictions on disclosure of information about accused persons and reportage of criminal trials provided for in legislations. The European Court of Human Rights, in the case of Tourancheau and July vs. France,[49] upheld the conviction and fine of 10,000 Francs each of Patricia Tourancheau, a journalist, and Serge July, the editor of the French newspaper Liberation, for publishing “unpublished evidence” in a criminal trial. The case concerned two juveniles who were involved in a murder case and before they were formally charged, an article featuring statements made by the juveniles during investigations was published. The journalist and editor were both charged and subsequently convicted of breaching a statute of 1881, the Law on the Freedom of the Press of July 1881, prohibiting the publication of any document related to any criminal proceedings prior to them being read in public sessions. The applicants argued in their defence that Article 38 of the law was in contravention of Article 10 of the European Convention on Human Rights. The national courts however held that the publication undermined the juveniles’ reputation and right to be presumed innocent thus the conviction did not violate Article 10 of the European Convention on Human Rights.
The increase in media coverage of criminal trials largely interrupts the unbiased administration of justice expected of authorities during trials. Facts reported are abridged and sensationally presented to the unsuspecting public. Terminologies used in describing suspects and accused persons often smack of value judgements and inputs guilt. Subjects of such coverages are highly likely to be tried and convicted by public opinion before the trial in court actually takes off. Despite the coverage of stories by the media, judges and the jury are supposed to make impartial decisions when rendering their duties in court, relying only on evidence adduced in court in the course of a trial. Although stories reported by the media regarding crime may be often skewed and one-sided and also contain prejudicial information which is inadmissible in trials as evidence, they tend to be believed by the public because most journalists attribute the sources of their information to judicial authorities.[50] Jury exposure to media coverage of crime has been demonstrated to have a prejudicial consequence on their attitude towards accused persons.
American study says that “when a case receives a large amount of media coverage, elected judges tend to sentence more punitively than if the case is less publicised”.
Research has also found that judges are equally susceptible to be influenced by crime news reported by the media when administering their duties. It has been analysed in an American study that “when a case receives a large amount of media coverage, elected judges tend to sentence more punitively than if the case is less publicised”.[51]
Apart from traditional broadcasting channels, the popularity of social media platforms has also contributed to influencing the attitudes of potential judges or jurors in criminal trials. These networking channels have made information readily available than ever and just a click away. Worst of all, platforms such as Twitter, Facebook, WhatsApp and Reddit provide an interactive medium allowing users to share their opinions on issues being discussed including court cases. In such light, the probability of these criminal justice actors coming into contact with undesirable information about criminal cases are higher and such exposure negatively impacts on cases in court.
Disclosure of information and media coverage of criminal cases in practice
Providing information about criminal cases generally by criminal justice authorities is in line with the principle of open justice and how this is done is dependent on the framework established to regulate such duties. Criminal justice authorities have the discretion in determining how, what and when to communicate to the public. The European Commission for the Efficiency of Justice has provided a ‘Guide on communication with the media and the public for courts and prosecution authorities’ for adoption by criminal justice authorities in providing information on the justice system. In relation to criminal trials, the general means through which the public and media are addressed include press conferences, press releases, interviews, written responses to written questions, website publications, social media networks, public lectures and debates, filmed messages, public broadcast of hearings amongst others.[52] In England and Wales for example, there is available a manual on “publicising sentencing outcome” to guide public authorities when giving information about outcome of trials.[53] Who addresses the public is however subject to prevailing circumstances and what the address targets to achieve. Prosecutors, judges, court officials, appointed spokespersons and police officers are all qualified to speak on criminal justice matters with the public as they are either directly involved in the trial or because they are the official mouthpiece of judicial authorities. Information disseminated to the general public is subject to legal restrictions such as protection of the rights of juveniles and witnesses, privacy, integrity, presumption of innocence etc. Thus, any information restricted by legislations and courts system cannot be made available to the public except an exemption is made by law. In the United States of America for example, information (sometimes limited) on criminal cases can be accessed online on a Public Access to Court Electronic Records (PACER) system by both public and media. Access is only granted when people register to be users of the system. Information in this system is updated as and when the status of cases changes.
Conclusion: gaps and challenges
Laws regulating disclosure and media interactions are attractive on paper but in practice distorted and not followed to the latter.
Disclosure is an important stage in criminal trials and its proper practice enables accused persons prepare robust defences in response to charges proffered against them. It usually commences when a plea of not guilty is entered and it continues throughout trials before judgment is delivered. Although it is desired for the purposes of fair trial, there exists some legal restrictions including the protection of public interests based on which certain information is not disclosed. Failure of prosecution teams to disclose information has led to many criminal cases being dropped in 2017 in England and Wales whereas others caused judges to stay proceedings until the error is corrected. The media is also promoting open justice reports on criminal trials, informing the public about crimes and the processes governing trials. The constant coverage of crime news influences the attitude and opinion of judges and jury in real trial consequently having a negative impact on verdicts they reach.
Laws regulating disclosure and media interactions are attractive on paper but in practice distorted and not followed to the latter. This is the case because authorities lack personnel and logistics needed to implement the rules. There is poor training and supervision of disclosing officers or prosecutors and these were analysed in the case of DS & TS v REGINA as underlying the act of gross incompetence exhibited by prosecution. In some jurisdictions, disclosure roles are performed by the same investigating officer or prosecutor and this dual role assumed by these authorities ultimately compounds their responsibilities resulting in shoddy delivery. The absence of deterring sanctions against offending officers also put officers under no pressure to efficiently deliver on their mandates. Likewise, disclosure will be better executed if lawyers of suspects or accused persons are involved in the process right from the investigation stage. This is because, statements given by defendants will be analysed by their lawyers and the latter will at initial stages identify potential exculpatory materials and request for them from prosecution. This will not only point disclosing officers to the right materials to disclose but will lead to giving of quality charges as well as save prosecuting time.
Recommendations
To address the discussed gaps and challenges operating in the criminal justice system, states can consider the following recommendations:
Adopt extensive and continuous (preferably yearly) training of prosecutors and police officers on disclosure processes
Appoint officers to perform only disclosure duties in every criminal trial
Include defence attorneys in disclosure processes from the start of the case
Sanction mandatory legal training organised by law associations for all reporters on criminal justice principles and proceedings
Codify all media related laws on criminal justice in one document to enhance accessibility of contents
Establish a regulatory body to ensure compliance with laws and policies formulated to guide media reportages of criminal justice proceedings coupled with the ability to bring actions against defaulters
Adopt extensive and continuous (preferably yearly) training of increase accessibility of the general public to information on criminal justice and courts processes by introducing government-funded educational programmes on legal processes and principles of crime to equip them to be more discerning of information given to them.
The presumption of innocence and the protection of the right to privacy of suspects and accused
Introduction
The presumption of innocence is one of the most critical underlying foundations in criminal justice and law. This precept specifies persons suspected and accused of criminal offences are to be treated as innocent as long as not proven guilty by an impartial jury or a court of law and, as a metarule, encompasses the application of other rules and principles aimed to ensure fair justice. These include the principle of objectivity for judges and juries,[54] the right against self-incrimination [55] and the right to remain silent,[56] the burden of proof resting on the accuser or prosecution,[57] the principle any doubt should benefit the accused,[58] the legal obligation to acquit defendants if standards are not met,[59] protection against court rulings and judgements written in an insulting manner,[60] legal presumptions of fact and law, and protection from premature statements made by judiciary, investigatory, policing, and other public officials and authorities that allege or assert the defendant’s guilt.[61]
In the European Union, in contrast to other jurisdictions, the presumption of innocence is a protected right, rather than a principle or guideline.
In the European Union, in contrast to other jurisdictions,[62] the presumption of innocence is a protected right, rather than a principle or guideline. Article 6(2) of the European Convention on Human Rights prescribes: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”.[63] In addition to the aforementioned metarules encapsulated in this right, in the European Convention on Human Rights, Article 6(2) is a provision under Article 6 more broadly, which dictates the “right to a fair trial”.[64] The time frame of admissibility of Article 6(2) and therefore the application of the presumption of innocence is contested amongst academics and legal practitioners alike, and further complexified by the courts. Whereas some argue the presumption of innocence is guaranteed before the initiation of criminal proceedings,[65] others, emphasising the phrase of Article 6(2), “charged with a criminal offence”, argue the presumption is applicable only upon the initiation of a (formal) criminal charge.[66]
The European Court of Human Rights is generally of the opinion the presumption of innocence “does not normally apply in the absence of a criminal charge”,[67] and therefore holds to the latter for admissibility when assessing allegations of Article 6(2) violations. Further complicating matters, though, the courts have found the presumption of innocence ceases to apply once an individual has been properly and lawfully proven guilty,[68] yet, it remains applicable upon the conclusions of trials in the cases of appeals and as a protection for those who have been acquitted of criminal charges or for whom criminal charges have been dropped.[69]
Presumption of innocence and media coverage
The observance of the presumption of innocence and the right to a fair trial are necessary in all criminal cases in a just society and exceedingly relevant in the context of cases that garner considerable media attention, whereby the impartiality of the jury is threatened by coverage of criminal proceedings and jurors may be influenced by or develop biases based on media reporting or statements alleging guilt (or innocence).[70]
As journalists and media publishers often acquire information about criminal proceedings from public authorities and judiciary, investigatory, and policing figures, these rights are pertinent to the disclosure of information and statements made by these parties. The European Court of Human Rights has ruled Article 6(2) “in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings”.[71] The Appendix to Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings [72] concurs with these rulings, advising with the dissemination of information by public officials to the media about on-going criminal proceedings, opinions and information should only be communicated where the presumption of innocence will not be prejudiced.
Similarly, the Council of Europe Declaration on the provision of information through the media in relation to criminal proceedings invites journalists and members of the media “to treat in their reports both suspects and accused as innocent until found guilty by a court of law, given that they enjoy that right under Article 6 of the Convention”.[73] However, the need to protect the accused person’s right to presumption of innocence cannot prevent authorities from informing the public of on-going criminal proceedings,[74] nor prevent the press from reporting on them.
Indeed, Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings specifies for as long as a suspected or accused person has not been proved guilty by law, public statements made by public and judiciary authorities shall not refer to the person as guilty, but that this obligation does not prevent these authorities from disseminating “information on the criminal proceedings where strictly necessary for reasons relating to the criminal investigation or to the public interest”.[75] The Appendix to Recommendation Rec(2003)13 adds “In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice… [or] impede the outcome of the proceedings.”[76]
In the context of Article 6(2) of the European Convention on Human Rights, courts predominantly argue the right to be presumed innocent can be violated when, following the initiation of a criminal offence charge, public authorities or judiciary, policing, or investigatory officials make or publish statements or judicial decisions which avow guilt, reflect opinions of alleged guilt, impel the public to believe or perceive the accused as guilty, or prejudge the impartiality and conduct of investigators, juries, or judges.[77] In contrast, statements by journalists and media publishers, when not direct quotations from public officials and authorities, are not found in the courts to violate Article 6(2); rather, such material might threaten the presumption of innocence and can be found instead to violate Article 8, the right to privacy and private life.[78] Phrased differently, media coverage of criminal proceedings “might be at odds not only with the fairness and impartiality of the proceedings, but also with other individual and societal interests. In particular, presumption of innocence of the defendant and reputation and privacy of trial participants [including defendant] are highly valued.”[79]
Media coverage and the right to privacy
Under Article 8 of the European Convention on Human Rights: “Everyone has the right to respect for his private and family life, his home and his correspondence.”.[80] The scope of Article 8, defining “private life” is expansive, including, inter alia, physical, psychological, and moral integrity;[81] physical and social identity;[82] gender identification, sexual orientation, and sexual life;[83] name and identification linking to family;[84] ethnic identity and race;[85] personal image;[86] and reputation.[87] While Article 8 explicitly states a negative obligation in “There shall be no interference by a public authority with the exercise of this right,”[88] there is also an implied positive obligation of the state in the duty to protect one’s right to privacy and private life.
The European Court of Human Rights has resolved the positive obligation to protect the right to privacy and private life is also applicable in the context of criminal proceedings.[89] Holding these obligations in regard, though, the European Court of Human Rights dually reiterates criminal proceedings entail consequences to the privacy and private life of suspected and accused persons and it is duly noted these consequences are compliant with Article 8 where normal to the circumstances, proportional, or in the public interest.[90] To clarify, criminal proceedings and media coverage of criminal proceedings will have implications for and effects on the accused’s privacy and private life and some degree of invasion into the accused’s right to privacy and private life during criminal proceedings is not incompatible with Article 8; nevertheless, the existence of criminal proceedings does not permit deprivation of Article 8 rights.[91] Accordingly, when disclosing information about criminal proceedings, public officials must consider the accused’s right to privacy and degrees of interference.
In balancing the triad of freedom of expression, the right to privacy and private life, and the presumption of innocence, it is necessary to distinguish between ‘what interests the public’ from ‘what is in the public interest.’
Recalling Recommendation Rec(2003)13 and IDirective 2016/343, while these pieces of legislation appear to echo one another, there is a minor difference worth mentioning. Whereas the former refers to dissemination of information that is “to the public interest”,[92] the latter expands the scope to information to the public interest and proceedings that have piqued the public’s attention. This is a crucial difference. In balancing the triad of freedom of expression, the right to privacy and private life, and the presumption of innocence, “…it is necessary to distinguish between ‘what interests the public’ from ‘what is in the public interest’”.[93] Intimate details or information about the private life of a suspected or accused person might appease the voyeuristic proclivities of the public, however, can violate their right to privacy and cause disproportionate damage and harm to the accused. Moreover, this calls into question the true purpose for disclosure of such information, if not to foster publicity.
Privacy concerns in the context of media coverage on criminal proceedings and pretrial publicity is not a new phenomenon. Media publishers and journalists profit from more attention and views; from this perspective, including intimate details about an accused person’s private life, more so when the alleged criminal offence is of an “unusual” or “sensational” nature, seems an attractive option. This distorts criminal justice systems and the coverage of criminal proceedings from informative or even educational akin more to entertainment.[94]
Recognising these concerns, the Declaration on the provision of information through the media in relation to criminal proceedings urges media publishers and journalists “… to respect the dignity, the security and, unless the information is of public concern, the right to privacy of victims, claimants, suspects, accused, convicted persons and witnesses as well as of their families, as guaranteed under Article 8 of the Convention.[95] Nevertheless, the dignity, security, and right to privacy of accused persons continue to be disregarded and disrespected.
Furthermore, and of great concern, is breaches of the accused person’s rights to privacy, and media attention, investigation, and reporting or “trialling,” on aspects of their private life can threaten their right to be presumed innocent, as it is noted increasing publicity of criminal proceedings “has caused a deterioration of the presumption’s [of innocence] strength, leading to public attitudes that resemble more closely a presumption of guilt”.[96] Pan-European studies [97] consistently find when reporting on crime and people of whom the media links with crime or criminal activity, “the presumption of innocence is sometimes violated, and it seems that the alleged offense – whether there is a final judgment or not – serves as the basis for suspending the right to privacy of the alleged perpetrators as well as their families”.[98]
As highlighted previously, statements made by journalists and media reporters, unless verbatim quotes or statements from public officials or authorities, are found by the European Court of Human Rights to not constitute violations of Article 6(2). However, the presumption of innocence should be “borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice”.[99] Also, coverage and statements can amount to violations of Article 8,[100] and thus, in reporting on criminal proceedings, both rights are to be respected.[101]
A first interference with Article 8 and accompanying threat to presumption of innocence is found in the right to reputation. While one argument asserts “the presumption [of innocence] concerns only a particular criminal charge that has been raised against the person, not his general good character”,[102] defamatory statements made about the character of the accused can depict them under a questionable light, thus weakening the presumption. Elements in media reports such as commentary on character, reputation, credibility, or status can influence the public’s (and jury’s) perception of an accused as guilty or innocent.[103] Similar with allegations, inaccuracies or factual errors published in the media can be accepted by the public as confirmed facts, which potential jurors could rely on in their future judgements of the accused.
Furthermore, once statements are made, while there can be mechanisms in place for the accused to reply [104] or comment in their defence, it is often difficult to do so, to have publications corrected, and to reverse opinions and perceptions that quickly develop about the accused person’s guilt. Problems of defamation are compounded by the Internet, which exposes the accused to the international arena where digitally anonymous people can engage with media publications, such as posting comments, and where once information is posted, it remains stored on a server forever and can be found, regardless of updates, corrections, or takedowns.[105] This is of key note as it complicates the question of responsibility for defamatory statements (i.e. the anonymous user, the media publisher, or both) and how the accused can seek redress for damages, especially if their privacy rights are invaded or the presumption of innocence is thwarted.
In the context of defamatory statements made by public authorities alleging guilt in the absence of criminal proceedings, the European Court of Human Rights has assessed five criteria to evaluate violations of Article 8: the seriousness of the underlying accusations; the contribution to a debate of general interest; the degree to which the affected person was well- known, their conduct prior to the dissemination of said statements, and the subject of the statements; the content, form, and consequences of the statements; and the method of obtaining the information and its veracity.[106] Had criminal proceedings been underway in this case, it is probable the European Court of Human Rights would have ruled a violation of Article 6(2), but in their absence, the statements were found to be defamatory and a violation of Article 8.
Painting a picture of the accused through written or spoken word, as addressed above, whether grounded in fact or concocted as fiction, are harmful to the accused in their right to reputation and can manipulate future juries’ perceptions of the accused’s likelihood of being guilty or innocent. Exacerbating these problems, media coverage of criminal cases includes additional elements, notably photographs, or, in the cases of televised or online coverage, video. These elements pose further, and in some instances, worse, dangers to both privacy rights and the presumption of innocence, acknowledging, “…the image is also recognised as a value adding element that strengthens the reliability of the information”.[107] As such, “… images obtained of suspects in public can provide material to support press coverage, which frequently relies in practice on these kinds of ‘compelling’ images”[108] and can afford accompanying opinions, allegations, and nonfactual statements greater credence. Recalling prior interpretations of Article 6(2) and its inadmissibility in the context of allegations of guilt coming from private individuals,[109] the European Court of Human Rights will likely find there is not a violation of Article 6(2) with regards to the publication of photographs; however, the European Court of Human Rights has ruled the publications of such photographs can have profound harmful consequences for the accused and their honour, reputation, psychological wellbeing, and social and working life, thus amounting to violations of Article 8.[110]
[…] a person’s right to their image is within the scope of Article 8, and that wherein the media publishes an accused person’s photograph, in the context of criminal proceedings and without their consent […] there must be compelling reasons to justify the interference with Article 8, else there will be held a violation
The European Court of Human Rights has judged a person’s right to their image is within the scope of Article 8,[111] and that wherein the media publishes an accused person’s photograph, in the context of criminal proceedings and without their consent and there is no informational value inherent to the photograph itself, there must be compelling reasons to justify the interference with Article 8, else there will be held a violation.[112] Although “the violation of the intimate sphere of litigants often takes the form of the unauthorised reproduction and excessive dissemination of the image of the accused in criminal proceedings,”[113] in pursuit of images to supplement written or spoken material, journalists and members of the media will also infringe upon more general privacy rights by following the movements, activities, and correspondence of the accused or by pursuing the accused at their residence, place of work or school.[114]
With respect to privacy rights and the presumption of innocence, it is also markedly concerning when members of the media are invited by public officials to attend arrests, especially in private spheres, such as the home, as the home can “provide comfort, support, an escape, or a place to relax”,[115] where the accused may be more exposed or vulnerable, such as in a half-dressed or dishevelled state.[116]
In the numerous aforementioned circumstances, photographs speak louder than words and can corroborate written statements offering a distorted representation of the accused or these images can offer “proof” of the accused’s guilt “due to the imminent inherent power of the image to convey information about an individual in the most pervasive way”.[117] Whereas under normal circumstances, society might perceive it socially acceptable for one’s home to be disorganised or personal appearance in the home to be unkempt, this “evidence” could be manipulated by the media to attest the accused person is reckless, irresponsible, or a multitude of other characterisations with negative or guilt-implying connotations.
In the context of covering criminal proceedings, the media is also eager to snap photographs of the accused in judiciary or policing settings (i.e., in front of a courthouse, in courtrooms, outside police stations), in the presence of judiciary, investigatory, and police authorities (i.e. judges, police officers, and even lawyers), or in some degree of restraint (i.e. hands behind their back, in handcuffs). Photos such as these, in addition to photos of the accused wearing sunglasses, hoods and hats, or dark clothing, are found to influence perceptions of the accused person’s guilt, undermining the presumption of innocence.[118]
Disclosure of personally identifiable information
In addition to breaches of privacy and private life applicable in the context of defamation and the right to one’s image, media coverage of the accused person’s during criminal proceedings can also violate their rights to privacy and threaten the presumption of innocence by obtaining and publishing other personally identifiable information of the accused.
The scope of personally identifiable information can be interpreted narrowly, comprising, for instance, first name, surname, date of birth, age, and gender, or more broadly, as is often the case in media coverage, which might include information about occupation, employment status, place of work, and work history;[119] address and area of residence;[120] nationality, citizenship status, ethnicity, and race;[121] sexual orientation and sexual behaviour;[122] health conditions and health history;[123] religion; financial history;[124] and previous history with the law or criminal justice system, such as prior criminal conduct, allegations, investigations, offences, and sentencing.[125]
Much personally identifiable information of the accused is often disseminated by judiciary, investigatory, and policing officials to the media in press releases or during press conferences, although in other instances, journalists will conduct their own searches on the accused, whether through online or public records searches, or, through other means, such as interviewing neighbours, co-workers, friends, or family of the accused. The purpose for such disclosures by public officials and the purpose for the media’s publication of such information are unclear, especially when the facts themselves are not pertinent to the case at hand. In fact, disclosure by judiciary, investigatory, and policing authorities can interfere with Article 8 rights, if such infringements are not “in accordance with the law”, in pursuit of a “legitimate aim”, and “necessary in a democratic society”.[126]
Concerning the disclosure of private and confidential information by judiciary authorities in courtroom hearings, the European Court of Human Rights has also ruled a violation of Article 8, noting the information was “incapable of affecting the outcome of the litigation” and “not ‘important for an inquiry, pre-trial investigation or trial’”.[127] In addition to questioning the grounds for disclosure by public authorities, it is worth inquiring if published personally identifiable information and facts by the media are “included not to promote a legitimate press function of informing or educating the public but merely to satisfy and pique the public’s curiosity”.[128]
Мedical data of the accused’s psychological wellbeing can be distorted by the media, using terminology such as “insane,” “crazy,” or “mad,” which are not only defamatory, but also pejorative terms implying guilt.
When sensitive and personal information about the accused is published, this can result in the individual being stigmatised, harassed, or threatened in their community, or, depending on the extent of media coverage, even national or international spheres. As an example, when reporting on criminal proceedings involving an accused who is a member of an ethnic minority group, the publication of information about the accused’s belonging to the group, their heritage, and their family background, if not explicitly a relevant factor in the case, might fuel negative or derogatory perceptions, biases, prejudices, or assumptions about the minority group or even incite hate speech and violence against the group. Media coverage can worsen these effects, ostracise the accused, polarise populations, and prejudice the impartiality of the jury and jeopardise the presumption of innocence. As another example, medical data of the accused’s psychological wellbeing can be distorted by the media, using terminology such as “insane,” “crazy,” or “mad,” which are not only defamatory, but also pejorative terms implying guilt.
The European Court of Human Rights has held states and public authorities have positive obligations respecting Articles 6 and 8 to protect the accused from the media’s disclosure of highly personal information and these obligations permit secrecy in investigations and restrictions on media coverage. Secrecy enables protections for, “on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence and, more generally, his or her personal relations and interests”.[129]
Conclusion
In the context of media coverage of criminal proceedings, in the interests of protecting the rights of suspected and accused persons to be presumed innocent under Article 6(2) and the rights to privacy and private life under Article 8, greater reform is needed with regards to the disclosure of information by judiciary, investigatory, and policing authorities. Developing better communications and disclosure standards and utilising them in practice is vital, given journalists initially garner much initial information from such disclosures. This is compounded by a lack of transparency in communications and disclosures in which the media includes statements “off the record” or anonymous quotations from prosecuting or investigating authorities as sources “close to the investigation”. Such quotations are often given prominence in coverage and are not balanced out by rebuttals from the suspect, or their lawyers, family or friends”.[130] In the absence of rebuttals or the ability for the accused to comment or reply, more often, to the average reader, the imbalance depicts the accused as guilty rather than innocent.
Also, while criminal proceedings inherently constitute there will be a degree of interference in the private life of the accused, this does not justify sweeping disregard for the rights of the accused and those in their private network, who can also be harmed by disclosures of private or personal information. It is advised before disseminating information to the media about ongoing criminal proceedings, judiciary, investigatory, and policing officials assess the extent to which specific details necessitate disclosure and what purposes such disclosures serve [131] and, if it is deemed necessary to disclose personally identifiable information, there are alternative ways to do so, such as by referring to the region where the accused resides rather than disclosing their address,[132] or identifying the accused by only the first initial of the surname, rather than disclosing their first and surname in full.[133]
As a final comment, it is worth noting an additional concern about the presumption of innocence and the privacy rights of the accused. “Even if a defendant manages to receive a fair trial, despite extensive media coverage of her case, her presumption of innocence means nothing to outraged public.”[134] After the conclusion of a trial, defendants might face persistent stigma [135] or suspicion [136] from the public, which could additionally prejudice the presumption of innocence for the defendant if they are involved in other investigations or criminal proceedings. Where found not guilty, exonerated, charges are dropped, or even in the instances a sentence is served, the accused “will suffer a loss of privacy and public humiliation by having their identity and personal background information released to and scrutinised by the public” and this can have profound implications for the individual’s ability to be reintegrated into or rehabilitated by society.
CAGES, BOXES, HANDCUFFS: THE COERCION OF DEFENDANTS IN ITALIAN AND EUROPEAN COURTS
Introduction
It is common, in Italy and in many European countries, for defendants to be subjected to means of coercion in court. They are often led from one part of the court to another with handcuffs on their wrists, despite the presence of officers at their sides. It is also frequent, at least in Italy, that while waiting for the hearing they find themselves confined in cells adjacent to the courtroom, again handcuffed and flanked by police officers. In many countries, they attend their hearings confined in glass or plexiglass boxes, or in cells with iron bars (the so-called “cages”, which are common in Italy), or in rooms separated from the rest of the courtroom by wooden balustrades.[137] The application of these coercive measures is generally not due to real, proven security needs. Formally, they are motivated by the presumed dangerousness of the defendants. In reality, the cause is to be found in logistical reasons, and in a certain inertia that prevents one from questioning useless coercive instruments (most of the time) and spatial arrangements inherited from a time when procedural guarantees were weaker and security needs, at least in some cases, were substantial.
This coercive treatment is not reserved to all defendants. It only concerns those who approach the hearing already deprived of their liberty, as they were under arrest or remand. These individuals arrive in the courtroom from the court cells, police stations or prison, depending on the country and the specific situation. These people are subjected to precautionary measures, even though they are innocent until the final judgement. This represents one of the bases upon which the problem arises: defendants do not sit in the courtroom next to their defence counsel as free individuals, as the principle of equality of parties states. There are other cases, as we shall see.
In many courts in Italy, these people enter the courtroom through a separate entrance. On one side of the room there is the general entrance and on the other side there is a door leading to the so-called “cages”: an informal name that provides a clear image of the cited place. Generally, the physical conditions of the courtroom and of the “cage” differ considerably: there may be wooden or concrete benches, or comfortable armchairs; likewise, the cleanliness and dirtiness of the room varies.
The unequal arrangement of the parties in question has a strong symbolic value, which is further emphasised by the frequent media exposure of the defendants. The courtroom is indeed a public place, where video cameras are allowed to record and often images are broadcasted in TV reports, newspapers and other online channels.
As mentioned above, the formal reasons for these measures are the so-called security requirements. Bars, barriers and handcuffs aid in preventing the possibility of escape, aggression, disturbances that might arise during the hearing as well as contact with third parties. Whether these dangers are real is, however, questionable. As it is debatable the lack of other dissuasive means that can be instead put in place. In several interviews carried out by Antigone along with various Italian lawyers, it clearly emerged that there is no concrete and relevant evaluation of the individual case. No case-related elements that could imply the dangerousness of the individual, such as resisting the arrest, are taken into account; therefore, the criteria at issue results questionable. The deprivation of liberty is the result of an automatism, the result of a practice that symbolically puts the accused in a situation of pre- guilt. In regard to the danger of violence, it should be borne in mind that during the questioning, the defendant, at least in Italy, is brought in front of the judge, with whom he/she confers without means of coercion. This does not lead to disconcerting reactions.
This is a widespread practice, albeit with some variations, that contrasts several principles: the presumption of innocence, visually challenged by the typical signs of punishment worn by individuals not yet sentenced; the protection of the dignity of the person subjected to criminal proceedings; the right to effective legal assistance, which is hindered by the physical distance between the defender and the assisted person, or by noisy intercoms and other barriers.[138]
The visual impact of defendants in cages is impactful. In Italy, the images of the Palermo bunker room (a courtroom built between 1985 and 1986 in the Ucciardone prison), in which the maxi- trial of Cosa Nostra took place, are well known: the defendants, accused of serious crimes (and later convicted), attended the hearings from metal cages in which they stood side by side. In that case, the defendants had strong ties with the territory, and consequently the suspicion of dangerousness appeared and still appears well-founded. Nevertheless, this treatment is also reserved to many other defendants, not comparable to the latter. Imprisonment in cages is a common practice every time a hearing involves a large number of defendants. When there’s a restricted number of accused, this practice is less common. In such cases, it is more likely that the judge will allow them to sit next to their defence counsel, as the law requires. Nevertheless, this usually happens after a waiting period spent in a cell adjacent to the courtroom, sometimes handcuffed.
In Italy “cages” are a widespread coercive tool. In other countries, glass or plexiglass boxes are extremely common. Recently the images of Aleksej Navalny, a Russian activist, politician and blogger, who watched his own trial in Moscow from a glass box, have been widely advertised in the media.
It is a frequently employed tool in France.
[In Italy] the defendant attends the hearing as a free person, even if detained, unless precautions are necessary to prevent the danger of escape or violence”. Exceptions should be justified, but in practice this does not happen.
The rules, as is often the case, conflict with practice. In the Italian legal system, Article 474 of the Code of Criminal Procedure contains a general principle according to which every defendant should attend the hearing as a free individual. The article provides for exceptions. However, these should indeed be exceptions. This is the text of the code: “The defendant attends the hearing as a free person, even if detained, unless precautions are necessary to prevent the danger of escape or violence”. Exceptions should be justified, but in practice this does not happen. Furthermore, Article 146 aids in implementing provisions of the Code of Criminal Procedure, which provides for private parties to be seated alongside their own defence counsel, unless there is a need for caution, which again should be the exception. Finally, Article 42 bis of the Penitentiary Ordinance prohibits individual translations of prisoners, the use of handcuffs, except in cases of danger of escape or where particularly difficult conditions arise, which need to be certified by a member of the prison management or the judicial authority. This is a different aspect from the way the hearing is attended, but still relevant.
France is one of the countries that make frequent use of boxes. Following a decree issued by the Ministry of Justice in 2016 (implementing a national directive on the security of judicial activities),[139] the generalisation of the glass box security device, already present in many French courts, began. The measure was severely criticised and eventually challenged by the French Lawyers Union (Syndicat des avocats de France) before the Defender of Rights (Défenseur des droits), the French ombudsperson. The issue was presented to the Court of Cassation and the Council of State. As a result of these actions, the installation of the boxes stopped after they were installed in 18 courtrooms. The Defender of Rights denounced the Government’s measure,[140] recommending to the Ministry of the Interior and the Ministry of Justice to repeal the current legislation, restrict the presence of the boxes to cases where serious security risks are involved, and create boxes that respect the fundamental rights of the accused. The measure has aroused interest in several countries,[141] and it is worth reiterating the arguments put forward by Defender of Rights. The first argument involves the unfoundedness of the assumptions underlying the Government’s measure, namely the existence of security requirements. The Defender of Rights underlines that in the three courts monitored by himself, in the previous years, there have never been episodes of violence, escape attempts or contacts with third parties. Antigone’s interviews also showed that such episodes are almost non-existent in Italy. Some saw the use of “cages” as a legacy of the 1970s, a period which saw a few courtroom protests, even though these were sporadic.
The Defender of Rights also considered the arrangement of defendants in glass or plexiglass boxes a violation of the right to a fair trial and effective participation in the proceedings. Such arrangements encumber the defendant from conferring with their lawyer during the hearing. Communication, according to the Defender of Rights, is possible, but is strongly inhibited by the presence of glass or noisy intercoms, when it should always be free and confidential. The issue had already been addressed in France many years before. As early as 1985, the Court of Cassation ruled on the legitimacy of glass boxes, making it subject to confidentiality and freedom in the communication between the assisted and the defender.[142]
The defenders interviewed by Antigone highlighted a further element that inhibits communication with the client, namely the frequent presence, in Italy, of agents stationed near the defendants. This problem does not only concern the specific moment of the hearing. A previous study [143] had shown that the violation of the confidentiality of the conversation between lawyer and client was frequent even before the hearings, limited to cases of summary hearings. In the court of Rome, for example, interviews before summary hearings usually take place in the corridor in front of the courtroom, or in a corner of the courtroom, with the officers standing next to the arrested person. The lawyer can ask them to leave, but it is up to him/her to do so, and often he/she does not.
The introduction of defendants in glass boxes or cells, according to the Defender of Rights, likens the defendant to a presumption of guilt, and it is likely to influence the free conviction of the judge and jurors. This view is also widespread among lawyers interviewed by Antigone. The Defender of Rights, in its opinion, notes how the arrangement of defendants in glass or plexiglass boxes violates the principle of presumption of innocence. The ombudsperson notes a contrast with Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the reinforcement of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.[144] The Directive, provided in Article 5, relating the attendance of suspects and accused individuals, concerns the adoption by member states of “appropriate measures to ensure that suspects and accused people are not portrayed as guilty, in court or in public, through the use of physical coercion measures”. The same article provides for exceptions that make the use of means of coercion legitimate in certain cases, where it is necessary to prevent attempts to escape or contact with third parties, or for security reasons. Nevertheless, these should be exceptions. The introduction of defendants in glass boxes or cells, according to the Defender of Rights, likens the defendant to a presumption of guilt, and it is likely to influence the free conviction of the judge and jurors. This view is also widespread among lawyers interviewed by Antigone.
Defender of Rights: “The introduction of defendants in glass boxes or cells likens the defendant to a presumption of guilt, and it is likely to influence the free conviction of the judge and jurors.”
Finally, and this is a central point, the Defender of Rights notes in relation to the contested rule and the widespread practice, an inability on the part of the State to guarantee the dignity of individuals undergoing criminal proceedings. In this regard, he refers to the most recent case- law of the European Court of Human Rights, which is worth reiterating briefly. The European Court of Human Rights has often seen this detention as a violation of Article 3 of the European Convention on Human Rights, which prohibits all forms of torture, inhuman or degrading treatment or punishment. It should be recalled that Article 3 is an absolute prohibition. No exceptions are allowed on the grounds of the specificity of the situation and the consequent need for a balancing act, contrary to other rights.
KHODORKOVSKIY AND LEBEDEV V. RUSSIA, 25 JULY 2013
The Court stated that the positioning in a metal cage, during the hearing, constitutes a degrading treatment.
SVINARENKO AND SLYADNEV V. RUSSIA, 17 JULY 2014
The Court finds no convincing arguments to the effect that, in present-day circumstances, holding a defendant in a cage during a trial is a necessary means of physically restraining him, preventing his escape, dealing with disorderly or aggressive behaviour, or protecting him against aggression from outside. Its continues practice can therefore hardly be understood otherwise than as a means of degrading and humiliating the caged person. The object of humiliating and debasing the person held in a cage during a trial is this apparent.
YAROSLAV BELOUSOV V. RUSSIA, 4 OCTOBER 2016
The Court clarified that degrading treatment always applies to metal cages, but for glass or plexiglass boxes it is necessary to assess other elements (duration of placement, size, mode of communication with one’s client and others). The Court also condemned Russia for violating Article 3 of the Convention (prohibiting torture, inhuman or degrading treatment or punishment) due to the placement of the accused inside a glass box. The Court found violation of the accused’s right to defence, guaranteed by Article 6(3)(b) and (c).
VALYUZHENICH V. RUSSIA, 26 MARCH, 2019
The Court ruled that in violation of Article 3 it constitutes degrading treatment to detain the applicant in a metal cage during the hearings of the criminal trial, in which he is a defendant, with the consequent compression of his right of defence, given the impossibility of conferring with his/her lawyer, and with the humiliating effect of appearing to be a dangerous criminal, in violation of the principle of the presumption of innocence. Once again, the Court underlines the humiliating effect on the defendant, and reception of the defendant as a “dangerous criminal”.
These are the most recent and significant judgments of the European Court of Human Rights. In the case of Khodorkovskiy and Lebedev v. Russia, judgement of 25 July 2013,[145] the Court stated that the positioning in a metal cage, during the hearing, constitutes a degrading treatment. In the case of Yaroslav Belousov v. Russia, judgement of 4 October 2016,[146] it is clarified that this always applies to metal cages, but for glass or plexiglass boxes it is necessary to assess other elements (duration of placement, size, mode of communication with one’s client and others). In Belousov’s case, the Court found a violation of Article 3, as well as of the accused’s right of defence, guaranteed by Article 6(3)(b) and (c) of the Convention and concerning effective participation in the trial and defence assistance.[147] The applicant, who was also subjected to unjustified provisional detention, had been placed in the default box, without a concrete assessment of the case, for the duration of the trial (several months). Due to his position, it was “impossible for the applicant to have confidential exchanges with his legal counsel, to whom he could only speak through a microphone and in close proximity to the police guards” and “to handle documents or take notes”.[148] In the case of Svinarenko and Slyadnev v. Russia, judgement of 17 July 2014,[149] a passage of the judgment is particularly significant with regard to the humiliating and degrading effects that according to the Court derives from placement in boxes or cells: “Lastly, the Court finds no convincing arguments to the effect that, in present-day circumstances, holding a defendant in a cage during a trial is a necessary means of physically restraining him, preventing his escape, dealing with disorderly or aggressive behaviour, or protecting him against aggression from outside. Its continued practice can therefore hardly be understood otherwise than as a means of degrading and humiliating the caged person. The object of humiliating and debasing the person held in a cage during a trial is thus apparent.”.
Moreover, in the case of Kavkazskiy v. Russia, judgement of 28 November 2017, the Court once again condemned Russia for violating Article 3 of the Convention due to the placement of the accused inside a glass box.[150] In this case of Svinarenko and Slyadnev v. Russia the Court assessed the criterion of the space available to the defendants: two people accused of crimes including robbery who, during the trial, had been confined inside metal cages, 1.5 by 2.5 metres wide, surrounded by bars and enclosed above by wire.[151]
Lastly, it is worth mentioning the case of Valyuzhenich v. Russia, judgment of 26 March 2019, in which the Court ruled that in violation of Article 3 of the European Convention of Human Rights, it constitutes degrading treatment to detain the applicant in a metal cage during the hearings of the criminal trial, in which he is a defendant, with the consequent compression of his right of defence, given the impossibility of conferring with his lawyer, and with the humiliating effect of appearing to be a dangerous criminal, in violation of the principle of the presumption of innocence. Once again, the Court underlines the humiliating effect on the defendant, and reception of the defendant as a “dangerous criminal”.[152]
The arrangement in boxes or cells is widespread throughout Europe. There has been some criticism of the “docks” installed since 2000 in many courtrooms in England and Wales. These “docks” in some courts are placed inside the wall, separated from the courtroom by a strip of glass. In others, they are wooden and glass structures placed in the middle of the courtroom.
Also, in Spain, defendants are subjected to harsh coercive instruments, such as handcuffs, applied without adequate risk assessment.
In Italy, however, glass boxes are an exception. Normally, there are the so-called “cages”, which are considered by the Court to be opposed to Article 3 of the European Convention of Human Rights.
In addition to the issue of how defendants attend the hearings, there is also the issue of how suspects and defendants are treated while waiting for the hearing, a waiting period that is often spent in handcuffs in a cell adjacent to the courtroom, alongside the issue of how they are transferred from one place to another in the court. Transfers usually take place in handcuffs, the so-called “irons”. All the defenders interviewed expressed strong scepticism about the real need to use handcuffs when defendants are escorted by officers, as attempts of escape are unlikely. None of the interviewees had any memory or knowledge of escape attempts before or during the hearing.
The issues raised are certainly not raised here for the first time. In a document published by the Criminal Chambers of Milan in 2016,[153] Milanese lawyers called for the removal of cells from the courtrooms of the Palazzo di Giustizia as well as the abolition of the practice, whereby defendants are brought into the courtroom with handcuffs on their wrists. The document cites a significant episode of the space that “cages” occupy in the imagination of legal practitioners, and the meaning that is associated with them. In the Ruby trial, in which former Prime Minister Silvio Berlusconi was a defendant, the president of the court ordered the cells in the courtroom to be covered with white sheets, thus making them even more prominent.
The treatment described questions different principles affirmed by the highest legislation: the dignity of the person subject to criminal proceedings, the presumption of innocence, the right to a fair trial, the right to effective legal assistance. The distortions to these principles are further emphasised by the media exposure of the defendants, which places them in front of an extremely wide audience. Trials take place, as is well known, in a public place. The hearings are usually open to the public and to journalists, who in many cases attend with video cameras. Images of the defendants in cages, in handcuffs or handcuffed, are broadcasted on TV channels, published in newspapers and posted on social networks. This occurs in an environment intrinsic of accusatory inclination, where media tend to present investigative hypotheses as truths already ascertained. This further undermines the principle of the presumption of innocence.
The distribution of images of suspected or accused individuals subjected to coercive measures is often contrary to the law. This mainly concerns the moment of arrest or relocation from one place to another. Article 114 of the Code of Criminal Procedure, in fact, states that “it is forbidden to publish the image of a person deprived of personal liberty taken while subjected to the use of handcuffs or other means of physical coercion, unless the person consents thereto”. Nowadays, these images may be provided by the authorities themselves. The European legislator, with Directive 2016/343, has sought to outline rules that strengthen the presumption of innocence regarding the distribution of this type of images. The countries, as stated in recital 19, “should take the necessary measures to ensure that, when providing information to the media, public authorities do not present suspects or accused individuals as guilty until their guilt has been legally proven”.
In the light of this picture, a decisive action against the automatic placement of defendants in cages or boxes is imperative, both in Italy and Europe. Furthermore, it is crucial to change the circumstances under which defendants wait to appear before the judge or are transferred from one place to another in the court. It is vital to pursue the path indicated by the European legislation and the European Court of Human Rights, ensuring the dignity of the person undergoing criminal proceedings, the right to a fair trial and the presumption of innocence.
MEDIA COVERAGE OF CRIMINAL CASES IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
Introduction
In this chapter we will explore the case law of the European Court of Human Rights on Article 6(2) of the European Convention on Human Rights, safeguarding the presumption of innocence, and specifically the manner in which the Court adjudicates cases involving media coverage of the criminal proceedings. The relevant jurisprudence encompasses cases dealing with public statements made by state officials to the media, in the context of informing the general public on the progress of ongoing police operations and criminal investigations. The Strasbourg Court has had the opportunity to examine the role of the media and the coverage of criminal proceedings under the prism of other Convention articles, most notably Article 10, which safeguards freedom of expression, including the right to hold opinions and to receive and impart information, as well as Article 8 on the right to respect for private and family life. This case law is exceptionally addressed here, insofar as it contains reasoning which is relevant to the topic at hand, especially in relation to adverse press campaigns.
Furthermore, this chapter does not deal with the jurisprudence of the Court of Justice of the European Union. This is primarily due to the fact that pertinent case law of the Court of Justice on the presumption of innocence is very limited, especially in relation to the specific topic of the role of the media and their coverage of the criminal proceedings. It must be reminded, in this regard, that for the Court of Justice to consider a case on its merits it must fall within the scope of application of EU law.[154] Although the adoption of Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings has recently provided the Court of Justice with more opportunities to adjudicate on relevant cases, the Luxembourg Court continues to draw on the interpretation of the presumption of innocence by Strasbourg in order to define relevant notions,[155] in line with Article 53 of the Charter of Fundamental Rights of the European Union and the preamble of the Presumption of Innocence Directive.[156] Thus, both Article 48 of the Charter of Fundamental Rights on the presumption of innocence and the right of defence, and the provisions of the Presumption of Innocence Directive are to be interpreted in light of European Court of Human Rights case law, as analysed below.
Finally, on the question of how the European Court of Human Rights evaluates the role of media coverage of the criminal proceedings when awarding compensation for damages, the following should be born in mind. First, the Court seldom provides detailed justifications on its decision-making with regards to just satisfaction claims. Instead, it usually limits itself to simply award certain amounts for pecuniary and non-pecuniary damage, without distinction between the various violations of Convention articles found in each specific case. This holds true all the more when it comes to the different elements establishing the breach of a single Article, as is the case with the evaluation of the role of the media in violations of Article 6(2) of the European Convention on Human Rights. In fact, the Court expressly states in its established case law that, when it comes to infringements of the presumption of innocence by public prejudicial statements, all the circumstances of the case are to be considered cumulatively. Moreover, the Court generally regards the finding that there has been a violation of a Convention article to be just satisfaction in and of itself. Consequently, the amounts awarded for damages, in particular moral damages, are largely symbolic and not necessarily reflective of the relative weight placed by the Court on each infraction.
For example, in Gutsanovi v. Bulgaria,[157] the Court awarded to the four applicants the large sum of 40,000 EUR in moral damages. It did so, however, for the concurrent violation of several articles of the Convention, namely, Articles 3 on the prohibition of torture, 5(3) and (5) on the right to liberty and security, 6(2), 8, and 13 on the right to an effective remedy, in conjunction with Articles 3 and 8. The violation of the presumption of innocence through statements made by the Minister of Interior on a nationally televised TV show made for only a small part of the Court’s reasoning in that case. On the other hand, in one of the rare cases where the Court explicitly ordered compensation for moral damages specifically for the violation of Article 6(2), Y.B. and others v. Turkey,[158] the amount awarded was a mere 1,500 EUR per applicant (7,500 EUR in total).
Nevertheless, as will be shown next, the Court does consider cases involving media coverage of the criminal proceedings to merit more scrutiny than those where the potential violation of the presumption of innocence took place in a purely procedural context. Some indication as to how this translates into its reasoning when it comes to just satisfaction claims may be found in one of the earlier cases dealing with the question at hand, Allenet de Ribemont v. France. In Allenet de Ribemont,[159] referred to it by the former European Commission of Human Rights, the Court dealt specifically with the question of expenditure in accordance with Article 50 of the European Convention on Human Rights. In relation to the pecuniary damage inflicted on the applicant, the Court took into account the seriousness of the accusations made against him in a press conference and the effect these had on the trust placed in him by the people he did business with, and found the circumstances of the case to partly justify his claim for compensation. In relation to the non-pecuniary damage suffered by the applicant, the Court’s assessment was much more damning. Specifically, the Court considered that the applicant “indisputably sustained non-pecuniary damage on account of the breach of … especially Article 6 para. 2 (art. 6-2)” and that the extensive coverage of the statements in question made the “lack of restraint and discretion vis-à-vis the applicant all the more reprehensible”. The fact that the statements were reproduced internationally also factored in the Court’s assessment.
It follows that, although it is difficult to form a concrete assessment of the manner in which the Court evaluates the role of media coverage of the criminal proceedings when deciding on the justification and amount of compensations awarded to applicants claiming damages for violations of the presumption of innocence, elements such as the level of exposure to the media in conjunction with the lack of diligence shown by public officials in the process of informing the public about ongoing criminal investigations, most likely play a large part in the Court’s reasoning in similar cases.
The scope of application Article 6(2) of the European Convention on Human Rights
Before we proceed with the analysis of the Court’s jurisprudence on the media coverage of criminal proceedings, it is useful to delineate the temporal and material scope of application of article 6(2) of the European Convention on Human Rights.
The presumption of innocence aims at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with the criminal proceedings.[160] In accordance with the letter of Article 6(2), the presumption of innocence is applicable from the moment a person is “charged with a criminal offence”. The notion of criminal charges has an autonomous meaning within the context of the European Convention on Human Rights, so as to ensure a uniform level of protection, without prejudice to the different definitions employed in the various criminal justice frameworks of the States parties to the Convention. Thus, Article 6(2) is applicable from the moment of the official notification given to an individual by the competent authority of an allegation that he or she has committed a criminal offence [161] or from the point at which his or her situation has been substantially affected by actions taken by the authorities as a result of a suspicion against her or him.[162] This phrasing permits a broad interpretation of the notion of criminal charges and has led to the application of the presumption of innocence to proceedings which may not strictly fall within the ordinary meaning of the term “criminal proceedings”.
Hence, Article 6(2) has been found to be applicable in criminal proceedings running parallel to the ones where the person concerned has the capacity of the accused;[163] in subsequent criminal proceedings;[164] in civil actions such as compensation claims by former criminal suspects or defendants as a result of discontinued proceedings [165] or of an acquittal;[166] and in civil or disciplinary proceedings, provided that those civil actions are linked to the criminal proceedings to such a degree so as to be considered as a consequence of or concomitant with the prior criminal proceedings.[167] Nevertheless, the impugned public statements must be connected to actual criminal charges. Article 6(2) has been found not to be applicable in cases where a state official has publicly “accused” the applicants of committing a criminal offence or of otherwise conducting themselves reprehensibly but criminal proceedings were not, in fact, initiated against them.[168] Such cases may give rise rather to considerations of protection against defamation and adequate access to court to determine civil rights, or could raise issues under Articles 8 and 6(1) of the Convention.[169]
Article 6(2) applies to the criminal proceedings in their entirety, including the pre-trial stage. It also applies after the criminal proceedings are terminated following a decision by a competent tribunal, often irrespective of their outcome, i.e., of whether the accused person(s) were acquitted in full or partially, as well as of the grounds for their acquittal.[170] Furthermore, the presumption of innocence may also apply to appeal proceedings, even if the person concerned was convicted by a first-instance court.[171] However, once an accused person has been proved guilty of a specific offence according to law, Article 6(2) ceases to apply, unless the case concerns statements of such a nature and degree as to amount to the bringing of a new “charge” within the autonomous meaning defined above.[172]
The relationship with Article 10 of the European Convention on Human Rights
The Court recognises freedom of expression as “one of the foundations of a democratic society, one of the basic conditions for its progress and for the development of every man”.[173] Article 10 of the European Convention on Human Rights, safeguarding freedom of expression, includes the freedom to receive and impart information and protects the freedom of the press in accordance with its fundamental role in the functioning of a democratic and pluralistic society, as well as the right of the public to be informed. In light of these considerations, in cases involving media coverage of the criminal proceedings the Court seeks to strike a balance between the two competing rights.
Specifically, the Court acknowledges that in a democratic society it is inevitable that information is imparted to the public regarding, inter alia, police investigations, high profile criminal cases, or cases involving serious misconduct in office.[174] Therefore, Article 6(2) cannot prevent the authorities from informing the public about the criminal proceedings, but it requires that they do so with all the discretion and circumspection necessary to ensure respect for the presumption of innocence of the persons involved in the criminal proceedings in question.[175]
It should be noted here that Article 6(2) is applicable only to statements made by public authorities and not to statements of guilt made by private persons and the media, and does not entail any positive obligations for the States regarding the latter.[176] These statements may, instead, raise concerns on the basis of Articles 8 and 10 of the European Convention on Human Rights.
Overview of the case law of the European Court of Human Rights
Public statements are considered prejudicial within the meaning of Article 6(2) when they are capable of interfering with the public’s perception on the guilt of the suspect or accused person or with the assessment of the facts by the competent judicial authority.
The presumption of innocence prohibits the premature expression of the opinion that the person “charged with a criminal offence” is guilty before he or she has been so proved according to law (prejudicial statements).[177] Public statements are considered prejudicial within the meaning of Article 6(2) when they are capable of interfering with the public’s perception on the guilt of the suspect or accused person or with the assessment of the facts by the competent judicial authority.[178] When attempting to establish whether a statement is prejudicial and, thus, problematic in light of the presumption of innocence, the Court considers all the circumstances making up the context in which the statement was made.[179] The relevant circumstances examined by the Court may be broadly categorised as described below.
Capacity of the person making the statement
Prejudicial statements may be expressed by the tribunal in charge of the case, but also by other public officials.[180] Thus, the presumption of innocence may be infringed not only by a judge or court but also by other public authorities, including police officials;[181] the President of the Republic;[182] the Prime Minister;[183] the Minister of the Interior;[184] the Minister of Justice;[185] the President of the Parliament;[186] the prosecutor;[187] other officials involved in the investigation.[188] Statements by judges are subject to stricter scrutiny than those by investigative authorities.[189]
The notion of a public official does necessarily imply an elected representative or public employee, but may include persons of recognised public standing, from having held a public position of importance in the past or from running for elected office.[190] However, statements made by the chairman of a political party which was legally and financially independent from the State in the context of a heated political climate may not be considered as statements of a public official acting in the public interest, and do not fall under the scope of Article 6(2).[191]
The Court has acknowledged that in cases where an applicant was an important political figure at the time of the alleged offence, the highest State officials, including the Prosecutor General, the Prime Minister, the Minister of the Interior,[192] and the Minister of Justice,[193] were required to keep the public informed of the alleged offence and the ensuing criminal proceedings. However, in Peša v. Croatia, the Court underscored that high-ranking officials should exercise particular caution in their choice of words for describing pending criminal proceedings against the applicant.[194] It follows that in less prominent cases it may be considered inappropriate for the relevant information to be divulged by such high-ranking officials, in light of their potential influence and the perception their involvement may create as regards the seriousness of the allegations against the persons concerned.
As already mentioned, statements made by private individuals or representatives of the media are not examined under Article 6(2), unless, in the latter case, they are a verbatim reproduction of official information.[195]
Choice of words
The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty according to law.[196] Whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made, viewing the proceedings as a whole.[197] In cases where the statement was made in a procedural context, the Court focuses on their true meaning, not their literal form.[198] Thus, even the regrettable use of some unfortunate language, including the use of terms with very explicit wording, such as “guilt” and “proved”, has been found not to amount to a violation of Article 6(2).[199] Nevertheless, it is doubtful that this applies, at least to the same extent, to mediatised statements addressed to the general public.
A fundamental distinction is made in the Court’s jurisprudence between a statement that someone is merely suspected of having committed a crime, and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question.[200] The voicing of suspicions regarding an accused’s innocence may be permissible as long as the criminal proceedings have not concluded with a decision on the merits of the accusation.[201] However, once an acquittal has become final, the voicing of any suspicions of guilt is incompatible with the presumption of innocence.[202]
Finally, the wording of the impugned statement must indicate that the official expressing it considers the suspect or accused persons concerned as unequivocally guilty.[203] Any qualifications or reservations may call into question the potential infringement of Article 6(2).[204] However, in the interest of safeguarding the presumption of innocence in a manner which is practical and effective, not theoretical and illusory, the statement of guilt need not necessarily be expressed in a type of formal declaration for the Court to pronounce a violation; it is sufficient that it gives rise to the impression that the person making the statement considers the person concerned to be guilty in an unqualified and unequivocal manner.[205] Whether the statement is expressed in the interrogative or in the affirmative is also irrelevant in this regard.[206]
Timing
The time in which a public statement is made is examined in relation to the different procedural stages of the criminal case. On the one hand side, the Court acknowledges the justifiable interest of the public to be informed in a timely manner about important criminal cases. Nevertheless, it considers premature statements, especially those made before criminal charges are officially filed, to be particularly problematic, as they tend to create to the public the impression that the persons concerned are guilty in the eyes of the investigative authorities.[207]
In Gutsanovi v. Bulgaria, the Court distinguished between statements made “a few days” after the applicant’s arrest, and amidst the intense media coverage of the case, and those made on the day immediately following the arrest. In the former case, and taking into account all the relevant circumstances, the Court found no violation of Article 6(2). On the contrary, in the latter case, it found that the statements were capable of creating the impression to the general public that the applicant was the head of a criminal operation, thus violating his rights under Article 6(2) of the European Convention on Human Rights.[208]
By contrast, where a conviction by a first-instance court has already taken place, and the case is at the stage of the appeal or cassation proceedings, it is unclear whether the same stringent standards apply with regards to public statements and whether or not they prejudice the presumption of innocence, given that a “conviction by a competent court” within the meaning of Article 6 has already taken place.[209]
Overall context
As noted earlier, the European Court of Human Rights considers the particular circumstances of a case as a whole in order to conclude on whether there has been a violation of the presumption of innocence. In this section we will examine other relevant considerations which may coalesce to amount to a violation of the presumption of innocence, in accordance with the Court’s jurisprudence.
First, the Court distinguishes between statements made to the media and those made in a purely procedural context, requiring officials to show significant restraint in their choice of words in the former case.[210] On the contrary, the Court is more flexible when it comes to statements made not in a context independent of the criminal proceedings themselves, as for instance in a press conference, but in a purely procedural context, for example in the course of a reasoned decision at a preliminary stage of those proceedings, rejecting the applicant’s request to discontinue the prosecution.[211]
Even within the context of mediatised statements, however, the Court assumes a qualified stance, taking into account other relevant factors. In the Gutsanovi case,[212] for instance, it considered the spontaneous character of the Bulgarian Prime Minister’s statements, which were prompted by the appearance of the applicant’s name in a news ticker during an interview he was giving on an unrelated topic. By contrast, in relation to the statements of the Minister of Interior in the same case, which were part of an interview he gave specifically on the topic of the criminal proceedings in question, the Court expressed the opinion that the Minister should have taken the necessary precautions to present the modus operandi and results of the relevant police operation without creating any confusion as to the applicant’s guilt. The Court noted that whether or not the violation of the presumption of innocence found in this instance was premeditated or not was irrelevant, and that lack of intent does not preclude an infringement of article 6(2) of the European Convention on Human Rights.
In the interest of avoiding a chilling effect to public discourse, with adverse effects on freedom of expression and the right of the public to be informed, these are particularly relevant considerations.
A specific issue the Court has had the opportunity to deal with is that of a televised reconstruction of the scene of a crime. In Karadağ v. Turkey,[213] the criminal proceedings against the applicant were the topic of a television programme which included a reconstruction of the scene of the crime, featuring actors playing the role of the applicant in the process of committing the murder, for which he had been charged but not yet convicted. The reconstruction was interspersed with real testimonies by police officers and by the applicant himself. Among these was the testimony of a police officer involved in the investigation whose statements set out the details of the investigation as well as the circumstances of the crime, and left no doubt as to the applicant’s guilt.
In order to reach a conclusion on whether the presumption of innocence was violated in light of the overall context in that case, the Court considered the following elements to be of relevance: (a) the appearance of one of the police officers involved in the investigation in the television programme in question; (b) the fact that the police officer’s testimony was accompanied by shots of the applicant filmed during his transport to the scene of the crime; and (c) the fact that the press was able to film the reconstruction of the scene, have access to and record the applicant’s testimony to the police, and interview the applicant on the crime he was charged with. The Court also noted that the government provided no explanation as to the circumstances under which the press was able to gain access to the crime scene and film the reconstruction with the participation of the applicant. It concluded that the police authorities took no measures to safeguard the applicant’s presumption of innocence and created an incriminating context for him, thus violating article 6(2) of the European Convention on Human Rights.
Press conferences organised to inform the public on the progress of a criminal case also make for a specific context within which prejudicial statements are often examined by the Court.[214] In this regard, it should first be underscored once again, that, in the interest of upholding the public’s right to be informed, authorities are not precluded from organising such press conferences for the purpose of providing information and updates on criminal investigations in progress, but must do so with all the discretion and circumspection necessary to ensure respect for the presumption of innocence.[215]
In Y.B. v. Turkey, a case involving a particularly intrusive presentation of the applicants, who were suspected members of a criminal organisation but not yet individually charged, the Court had the opportunity to examine the issue in depth. It found that a press conference where the persons concerned were presented to the press, who had the opportunity to take their pictures, violated Article 6(2). The Court held that, although the publication of the suspects’ pictures does not in itself constitute a violation of Article 6(2),[216] the specific circumstances of the case led to a breach of the presumption of innocence. Specifically, the pictures taken in the press conference ended up being widely circulated as part of the press coverage of the applicant’s arrest, and, although the names of the persons concerned were not mentioned in the authorities’ communication to the press, the manner in which they were presented during the conference rendered them easily identifiable, and the articles published in the press subsequently actually included their names. The Court concluded that, despite the fact that the police could not be held responsible for the subsequent actions of the press, in this case they should have demonstrated the efficiency of their operation without prejudice to the applicant’s presumption of innocence.[217]
Overview of the case law of the European Court of Human Rights
In this section we will address the notion of an adverse or virulent press campaign, which lies at the margins of admissibility under Article 6(2). At the outset, it should be noted that the notion is applicable to statements broadcast by the media which are a verbatim reproduction of or an otherwise direct quotation from official information provided by state representatives, and does not concern statements made by private persons or by members of the press. As mentioned, the Court considers that the latter do not create a positive obligation on the State to provide redress.
A virulent press campaign can, however, adversely affect the fairness of a trial by influencing public opinion and affect an applicant’s presumption of innocence.
The Court has been mindful to underscore that in a democratic society, severe comments by the press are sometimes inevitable in cases for which the general public has a justified interest, including comments on the morals of the person involved in the criminal proceedings.[218] A virulent press campaign can, however, adversely affect the fairness of a trial by influencing public opinion and affect an applicant’s presumption of innocence. The presumption of innocence is of particular relevance for the balancing of competing interests in these cases.[219]
In this connection, the Court has held that the press must not overstep certain bounds, regarding in particular the protection of the right to privacy of accused persons.[220] In this context, the fact that the accused had confessed to the crime does not in itself remove the protection of the presumption of innocence.[221] Furthermore, although the publication of photographs of suspects does not in itself breach the presumption of innocence [222] nor does the taking of photographs by the police raise an issue in this respect,[223] the specific circumstances under which the media proceeded to reproduce the pictures, including the context and the specific medium through which they were broadcast, has given rise to findings of breach of Article 6(2).[224]
It should be highlighted that, if there is a virulent press campaign surrounding a trial, what is decisive is not the subjective apprehensions of the suspect concerning the absence of prejudice required of the trial courts, however understandable, but whether, in the particular circumstances of the case, his or her fears can be held to be objectively justified.[225] This applies to considerations under Article 6(1), as well as under Article 6(2) of the Convention.
In Mytyanin and Leonov v. Russia, the applicant raised the argument that respect for the presumption of innocence was incumbent on public officials as well as on newspapers and journalists – especially when they relayed official information; he also argued that the State had a positive obligation under Article 6(2) to ensure the protection of this presumption against violations by the mass media. The Court rejected the claim as inadmissible due to the non- exhaustion of domestic remedies and the fact that it was raised after the six-month period provided for in Article 35(1) of the European Convention of Human Rights.[226] Insofar as it implies a positive obligation for the States parties in relation to the course of statements which may not have been prejudicial when expressed by public officials but later became part of a virulent press campaign, this question is yet to be considered on its merits.
Examples of violation and non-violation of Article 6(2)
Below follows a list of examples of the Court’s jurisprudence in cases involving the presumption of innocence and the role of the media.[227]
THE ROLE OF THE MEDIA IN THE INVESTIGATION AND PROSECUTION OF TERRORIST OFFENCES
Introduction
There has long been a difficult balancing act when deliberating and discussing the contours of personal freedom and safety, with human rights and individual liberty on one end of the spectrum and national security on the other. This requires policy makers, states and citizens to debate and determine how much privacy and freedom one is willing to give up for greater security, or at least the sense of heightened security. Notably, this has become an increasingly pressing topic in the aftermath of 9/11 and other high-profile terrorist attacks across the West. Often, in both North America and Europe, the media has played an important role in ensuring (or attempting to ensure) that the state does not overstep itself when enacting security and counterterrorism measures – through investigative journalism and providing an avenue for leaks to be disseminated. However, what happens when instead of shedding light on government overreach, the fourth estate exacerbates or creates further problems?
To look at this question this chapter will examine the ways in which the media and the government has misidentified or even “created” terrorists, bypassing presumptions of innocence, as in the case of Richard Jewell and the Centennial Olympic Park bombing in 1996. It will also examine when the media, inadvertently or purposely, create pressure causing law enforcement to arrest or detain suspects before proper investigations are carried out as in the cause of Brandon Mayfield in the 2004 Madrid bombings. Additionally, the chapter will briefly examine the ways in which social media such as Reddit and Twitter have created problems in this regard, such as the misidentification of an individual as being part of the 2013 Boston bombing.
Background
Media has long played an important role in not only informing citizenry but in shaping narratives. Historically, it has played major role in beating the drums of war and conversely, in ending wars; it has also, fairly and unfairly, created heroes and villains from ordinary individuals. Throughout the modern history it has taken many forms — from the Central Park Five, who were accused of the rape and murder of a woman in New York had their identities improperly released to the press and the ensuing racially charged media campaign against them, best exemplified by a full-page newspaper ad taken out by Donald Trump in 1989 which began in all caps with the words: “Bring back the death penalty”;[228] to a smear campaign orchestrated by President Grover Cleveland and his supporters against a journalist, E.J. Edwards, who correctly reported and wrote about a secret medical procedure to remove a tumour on the roof of the President’s mouth.[229] It should be noted that the discussion in this chapter is not done to admonish the media or to perpetuate a view of it as a purveyor of ‘fake news’, but instead used to emphasise how the media shapes perceptions and to highlight that once misinformation enters public discourse it is difficult to correct. In 2019, thirty years after the ad and almost two decades since the Central Park Five were exonerated, Trump still maintained the belief they were guilty of the crime.[230] While it took nine years after Cleveland’s death and 24 years after the medical procedure for one of the operating doctors to write an article admitting that the journalist, Edwards, was wrongfully slandered and had correctly reported on the procedure.[231]
This necessitates that the media be both responsible and responsive to inaccuracies and be averse to reactionary reporting – to avoid damaging innocent lives and ruining reputations. This is already a difficult task, which has become exceedingly difficult with the pace at which news, and rumours, spread in a 24-hour news cycle. This phenomenon has been exacerbated with the advent of the internet and more recently social media where near instantaneous reactions and hot-takes are coming from politicians, pundits and the public as events unfold. This has created a media landscape, in which breaking news is often valued more than accurate news — especially in the case of “clickbait” websites and social media, which rely on emotional responses to reach viewers and attract web traffic.[232]
With new forms of access to smartphones and internet, opportunities for news to be reported unfiltered from major news outlets, circumventing editors, factcheckers and other historical gatekeepers of information has increased.[233] This is specifically because of the loose use of the term “media”, which can be applied to a wide range of actors, from major news networks such as CNN or the BBC, to citizen journalists, who can be individuals with little more than a cell phone and a selfie-stick, to anyone with a social media account and opinion.[234] While this can be greatly beneficial, especially if the gatekeepers are less than honest brokers of information or beholden to a political faction or party, as in the case of some European countries such as Hungary or in the United States with Fox News, it can also have consequences on the quality and accuracy of news being reported. This is increasingly evident on social media as illustrated by the case, in which users from the social media website Reddit feverishly worked to figure out who was behind the Boston Marathon bombing in 2013 only to erroneously identify an innocent individual.[235] Additionally, not only did these keyboard sleuths en masse fail to solve the case, but they doxed and accused a recently deceased young man of committing a gruesome terrorist attack.
Governments have been more willing to forgo, or stretch, judicial norms and the presumption of innocence, with prisons and “black sites” established abroad in legal grey areas allowing security forces to operate with more flexibility and less oversight.
This was problematic for a number of reasons, as being accused of a crime one never committed can be a traumatic experience. However, hardly any crimes or accusations are more serious than that of terrorism or of being a suspected terrorist, and few invoke as much fear and loathing for both the general public and policy makers. Some of the reasons for this are clear, as for most people terrorism is repugnant and even for many who are sympathetic to the terrorist cause may find it highly objectionable. Even within terrorist organisations there are bitter debates on targeting and the acceptability of killing civilians, though usually due to strategic or political considerations, rather than moral reasons.[236] As a result, governments have been more willing to forgo, or stretch, judicial norms and the presumption of innocence, with prisons and “black sites” established abroad in legal grey areas allowing security forces to operate with more flexibility and less oversight.[237] Additionally, since 9/11 and in America especially, the public has, more or less, accepted the trade-off of civil liberties for greater security, or at least a sense or the promise of greater security. This has ranged from minor trade-offs, such as body screenings at airports and regulations for what is allowed on flights, to much bigger, and secretive measures, like the revelations that came to light during the Snowden leaks, which exposed the extent to which the American government can spy into the lives of both citizens and non-citizens.[238]
Other trade-offs have included questionable circumventing of international humanitarian law, such as the continued use of Guantanamo Bay in Cuba as a detention centre for both convicted and suspected terrorists,[239] and the use of drones to kill individuals abroad, who are deemed as “terrorists”.[240] The continued use of the aforementioned measures over three presidential administrations, in conjunction with a lack of public pressure to end such practices, indicate at least some implicit acceptance of harsh and legally questionable security measures for suspected terrorists.
Additionally, since 9/11 and in the aftermath of attacks across Europe, terrorism has become a spectre in the West and has catalysed the use, or discussion of, draconian and invasive security measures by governments. This is due in part to the fear of the “other”, namely Muslims, who are viewed as being discordantly different than the hegemonic white, Christian West. Another component is that no politician wants to leave themselves open to the type of Willie Horton style political attacks that hounded Michael Dukakis during the 1988 US presidential election, which lambasted Dukakis, who supported a furlough program as Massachusetts governor, as being soft on crime following a rape and assault committed by an inmate who was released under the furlough programme. So, by backing harsh security measures politicians can head off any potential problems in the future and appear tough on crime. This has resulted in a climate, in which the public, politicians and law enforcement are more willing to forgo the presumption of innocence in the name of quick justice.
Richard Jewell
The case of Richard Jewell [241] is unique because he was first, and rightfully, hailed as a hero by the media, only to be later identified as a potential suspect, which quickly devolved into a narrative that painted Jewell as a villain.[242] Hired as a security guard by AT&T during the 1996 Summer Olympics in Atlanta, GA, Jewell was the first to alert authorities to an unattended suspicious military-style backpack in the Centennial Olympic Park.[243] He and an agent with the Georgiа Bureau of Investigation evacuated 75 to 100 people from the park before the bomb exploded, killing one person immediately and another who died of a heart attack shortly thereafter.[244] It was immediately considered an act of domestic terrorism by law enforcement based on the type of attack and the fact that 30 minutes prior to the detonation a caller had warned of the impending bombing.
Immediately following the bombing, the role that Jewell actually played received little attention from media or law enforcement. However, in the three days following the attack focus quickly shifted towards him. First, due to his actions in identifying the bombing then later as a suspect.[245] As he appeared on TV shows and gave interviews in newspapers, the press was hailing Jewell as a hero for his actions, but this changed once the media began to report that the FBI suspected he had planted the bomb himself, in an effort to manufacture a heroic moment. This had previously happened in Los Angeles when a police officer planted a fake bomb on a bus which he removed, claimed to defuse and was lauded as a hero before being exposed as a fraud following inconsistencies in his story.[246] The Atlanta Journal-Constitution, a major newspaper in Atlanta, ran a page one story which, without attribution or sources, had the headline “FBI Suspects ‘Hero’ Guard May Have Planted Bomb” and that he fit “the profile of the lone bomber”.[247] This was despite the fact that there was no such thing as a “profile of a lone bomber” even as it was reported as a fact and presented to reading audiences in a way, which made it seem like it was part of popular nomenclature, akin to the profile of a serial killer.
“Una-doofus”
“fat, failed former sheriff’s deputy”
“enough to arrest him right now, probably enough to prosecute him, but you always want to have enough to convict him as well”
Once this “hero bomber” narrative took shape, the house he lived at with his mother was swarmed with journalists and photographers who staked it out 24/7 for the next three months. While this was happening, his entire life was scrutinised, from his shortcomings as an overzealous cop to his family life and living situation. He was ridiculed for being in his 30s and living with his mother, late night TV host Jay Leno mockingly referred to Jewell as the “Una- doofus”,[248] and The New York Post called him a “fat, failed former sheriff’s deputy”.[249] Anchor Tom Brokaw stated on the national nightly news that there was probably “enough to arrest him right now, probably enough to prosecute him, but you always want to have enough to convict him as well”.[250]
This widespread and assertive reporting led the public to conclude that Jewell was plainly guilty of the bombing and it was simply a matter of clearing legal obstacles before he was arrested and formally accused of the crime. These assertions in the media were based on little evidence and unnamed sources within the FBI, which had no evidence tying him to the crime beyond the hero bomber theory and him being at the scene. Even the theory was based on flimsy evidence, including a misleading FBI interrogation with Jewell, which the FBI later admitted was “a major error in judgment”,[251] and his background and repeated failures in law enforcement. The focus on Jewell was also in direct contradiction to the facts and timeline of the case. With the bomb threat coming from a phone booth at least 5 minutes away from where the bomb was placed all while Jewell was standing next to the Georgiа Bureau of Investigation officer.[252]
Still, Jewell endured a public trial by the media and only after three months was he told that he was no longer being considered a suspect in the case by the FBI. In this way, the media created a villain based on a weak lead that the FBI was following and presented it to the public as is if Jewell was caught red-handed. Still, the media were not the sole arbiters of this narrative, the government clearly played a role, first in leaking the lead to The Atlanta Journal- Constitution and then by intensifying its public investigation into Jewell as a suspect, which included a caravan of FBI vehicles which followed him whenever he left his house.[253] Additionally, since law enforcement was so focused on Jewell as a suspect they made no effort to dampen the flames of speculation in the media surrounding his involvement and allowed it to continue for months unimpeded.[254]
Whereas he once lived an ordinary life before the bombing, post-bombing he lived a life of notoriety, which he could not and did not escape for years.[255] Because of the severity of the crime and the amount of coverage focused on Jewell as the bomber his name was forever tied to Centennial Olympic Park bombing. Even following public apologies from government officials, including from Attorney General Janet Reno, and after law enforcement identified the perpetrator in 1998 and the 2003 arrest and subsequent conviction the actual bomber, Eric Rudolph, for the Centennial Olympic Park bombing and three other bombings which targeted two abortion clinics and a lesbian bar,[256] there remains a lingering doubt in some that Jewell is not innocent but instead simply “may be innocent”.[257]
Brandon Mayfield
The media played a small, but significant, role in the case of Brandon Mayfield [258], who was thought to have aided or abetted the perpetrators of the 2004 Madrid train bombings. This time the media did not create a narrative around Mayfield but instead was the accidental catalyst for his hasty detention based on questionable evidence. It was law enforcement that thought it had found its perpetrator and rather than reassess its assumptions in light of evidence, or lack thereof, it charged forward and, in this way, Mayfield was an innocent man assumed guilty based on a number of factors, including his faith and participation in the local Muslim community.
On 11 March 2004, a group of Islamic radicals working independently, but inspired by al- Qaeda, set off ten bombs in backpacks and small bags on four trains in Madrid, killing over 190 people.[259] These attacks constituted the deadliest terrorist attack in Spain and the deadliest in Europe since the Lockerbie bombing in 1988, and set off a massive manhunt for the perpetrators. ETA, the Basque separatist group, was originally thought to be behind the attacks before some of the focus shifted to Islamic extremism following the discovery of a stolen van by law enforcement on the day of the attacks, which contained detonators and a tape of Koran verses.[260] This connection to Islamic extremism was buoyed by both a letter and later a statement made by al-Qaeda affiliates, who claimed responsibility for the attack. However, many in law enforcement viewed this with skepticism, as it has long been fashionable for terrorist groups to claim responsibility for attacks, in which they had no involvement or awareness of in order to get press coverage, increase support and appear more powerful or capable.[261]
By the end of March, it became clear to law enforcement that Islamic extremists were behind the bombings. Over a dozen suspects, with some thought to be connected to al-Qaeda or the al-Qaeda affiliate, Moroccan Islamist Combat Group, were arrested in the weeks following the attacks.[262] This includes five individuals arrested two days after the bombings, who were linked to the bombings through prepaid phone cards found in the backpacks used in the attacks. Additionally, heightening fears and tensions, on 2 April another bomb similar to the ones used in the Madrid attacks was found on the tracks of a high-speed rail between Madrid and Seville.[263] And the following day, seven suspected terrorists set off explosives killing themselves and a police officer as Spanish police attempted to arrest them in connection to the Madrid train bombings.[264]
On the same day as the attack, the Spanish National Police sent two fingerprints found in the stolen van to Interpol, which in turn sent images of the fingerprints to the FBI to expedite the identification process.[265] After getting a higher resolution scans of the fingerprints the FBI began to narrow down possible fingerprint matches, honing in on one found in the criminal database, which they determined was a match to one of the prints taken from Madrid. This conclusion was verified by a peer review of the prints, though some noted there were both similarities and noticeable differences between the prints. However, the examiners attributed some of these differences to being a separate touch made by another individual or different part of the finger.[266]
With no concrete evidence, there was no cause to arrest Mayfield, so the FBI planned to continue surveillance. This changed however, on 4 May, when a journalist called the Madrid Legat inquiring about an American whose prints were connected to the Madrid bombings. Fearing a media leak would cause Mayfield to flee, the FBI began to figure out how to handle the situation, due to the severity of the crimes he was purported to be connected to and behaviour which indicated he knew he was under surveillance they feared he was a high flight risk. Additionally, with a lack of evidence, there was no possibility to charge Mayfield of a crime. So, the FBI sought to get him to cooperate to an interview and if not have a material witness warrant, which would allow law enforcement to take him into custody on the basis that Mayfield had information pertinent to the Madrid bombing case. Approached by FBI agents, who identified themselves, Mayfield declined to speak with them and thus was taken into custody on 6 May and spent the next two weeks at the Multnomah County Detention Center in Portland before being released after a judge dismissed the case.
Whereas the original FBI plan had been to observe him until June and then approach him at that time, the worry of a media leak caused law enforcement to detain him nearly a month before they planned. This did not allow investigators to really assess the situation over time and instead it put them in a situation where they have to either quickly detain an individual or risk losing track of them and having an actual member of a terrorist plot on the lam. However, the journalist asking about Mayfield was not being malicious or stepping out of bounds, they were seeking to confirm information they had received from a source, which was never identified. As an information broker, the media should be investigating such leads, however, in this case, the interplay between the media and law enforcement created pressure for law enforcement to act quickly before further leaks or reporting could happen. This in turn caused law enforcement to detain Mayfield without any evidence, beyond a fingerprint match whose validity was in doubt, which resulted in him being detained and accused of being party to a horrific terror attack.[273]
For the Mayfield case, one of the biggest questions is: would the case have played out as it did had he not been Muslim? The Office of the Inspector General, who conducted a review of the FBI handling into the investigation, found that his religion played no role in the initial fingerprint match, as the examiners did not know anything about whose fingerprint they were matching. However, once he was identified and his background was being looked into it seemed to confirm that the print was a match with Mayfield within US law enforcement, even when the Spanish police voiced their disagreement.[274] In this way, the investigators own confirmation bias likely played a role — he was a Muslim man who had defended a convicted extremist sympathiser and had previously had contact with suspected terrorists through worshipping at the same mosque, so it could seem too big of a coincidence for investigators that his fingerprint should wind up on a bag used in a terror attack.[275] The Office of the Inspector General review admits as much when it says that had the fingerprint matched with someone without this background it would have likely received more scrutiny and scepticism.[276]
The Boston bombing
While Richard Jewell’s presumed guilt stemmed from law enforcement looking into his potential involvement in the Centennial Olympic Park bombing that was fuelled by media coverage, which portrayed him as guilty, and Brandon Mayfield was assumed guilty of abetting the Madrid bombings by law enforcement despite a lack of evidence, the case of the Boston bombing concerns not law enforcement or mainstream media, but trial by social media, which was utilised during the manhunt for the perpetrators in an attempt to crowdsource information to identify the bombers.[277] Instead, it misidentified a young university student, who was missing as having taken part in the attacks, doxing him and causing his family to be harassed and accused of raising a terrorist.
Using two homemade pressure-cooker bombs in backpacks, the Tsarnaev brothers, Dzhokhar and Tamerlan, killed three people and injured hundreds at the Boston Marathon on 15 April 2013. In the aftermath of the attack, the perpetrators were unknown though it became clear to law enforcement that it was a terrorist attack likely carried out by a lone-actor or small group since no organisation had claimed responsibility.[278] With no suspects or solid leads, law enforcement asked the public to send in any photos or videos taken at the sight of the bombing and pleaded for anyone with information to come forward. As a result, social media sites, and especially Reddit, began looking through pictures and videos of the marathon attempting to identify similar-looking backpacks in the area.[279]
As the internet sleuths began to pour over images in r/FindBostonBombers, a dedicated subreddit or community for users to discuss the bombing, the crowd-sourcing did come up with some information that could benefit law enforcement, such as a clear photo of a man in a white hat who was referred to by the FBI as Suspect 2 (Dzhokhar). However, once this photo had circulated online there was an effort to put a name to the face with threads on Reddit claiming they had figured out the identity of Suspect 2.[280] Most infamously one thread posited the question “if a missing student from Brown University was Suspect 2”. Included in this thread was the suspects name which proved to start a wildfire of speculation, with the family of the missing student becoming inundated with online harassment, hate and threats.[281] This speculation did not stay contained within Reddit but quickly spread to other social networks such as Twitter and Facebook, which in turn caused mainstream media to start looking into this connection.
Of course, the student had no involvement in the bombing, he had been missing for over a month and had killed himself sometime during that time, with his body being recovered 8 days after the Marathon bombing. However, it was enough for him to sort of look like Suspect 2 for Reddit to self-righteously claim they had solved the case. This form of online mob justice is not a new thing and can be used to enact positive change.[282] However, in the case of the Boston bombing it was not only toxic but also counterproductive, causing law enforcement to release photos of the Tsarnaev brothers in order to quell the social media manhunt and misinformation that was being propagated online.[283] This highlights one of the well-known problems of social media, just how easily misinformation can spread and propagate and that with enough retweets and likes anyone can be guilty of anything.
Conclusion
There is often an unconscious link or assumption from the public that those arrested or connected to terrorism are guilty.
So often terrorists are arrested immediately following the attack or in the middle of the attack, from Anders Breivik to Brenton Tarrant it is clear they are guilty of their crimes and the presumption of innocence is a foregone conclusion for the public and is little more than a legal formality until they can be charged with their crimes. As such, there is often an unconscious link or assumption from the public that those arrested or connected to terrorism are guilty. With calls for quick and often rash justice coming nearly immediately it requires deliberate and measured responses and reactions from law enforcement and the media. And while the media is not inherently beholden to the presumption of innocence, beyond libel litigation concerns, it should be mindful of its role in shaping narratives and changing perceptions.
Though the three cases here are outliers, they are important reminders to consider the role and power that the media, law enforcement and social media have. For Jewell the media created a villain without any proof and sold a story as truth to the public based on speculation. While Mayfield was assumed guilty by the government based on a fingerprint despite evidence suggesting he had no involvement. In the case of the Boston bombings social media acted as a mob, harassing and demonising an innocent individual based on the belief that he looked like one of the suspects in the picture.
FREEDOM OF SPEECH AND MEDIA COVERAGE OF GLORIFICATION OF TERRORISM CASES
Introduction
Over the past decade, human communication has been defined by the emergence of social networks and the internet.[284] This new communication ecosystem has created the possibility of sharing information almost all around the world, but it has also made it easier to spread any kind of discourse.[285] One of the first problematic issues brought up by this new communication context was the spreading of radical discourses and hate speech. Facing this, the European Union and its Member States developed and enforced laws and acts aimed specifically at preventing the spreading of certain discourses through the internet.[286] These efforts have also led to a change in anti-terrorism policy, which has started to focus on preventing radicalisation,[287] intervening before the subject joins or assimilates to a terrorist group. Thus, criminal law has advanced the moment of its intervention and has begun to be used to punish individuals who share or consume certain discourse through the internet. This shift has been notably controversial and it has led various actors to question the fit of this criminal policy with respect for fundamental rights such as freedom of expression or opinion.
The crime that has been used most frequently to prevent the diffusion of certain speeches has been the glorification of terrorism […] Spanish courts started to apply it more frequently than any other crime related to terrorism.
In the Spanish case, the crime that has been used most frequently to prevent the diffusion of certain speeches has been the glorification of terrorism. Although this crime was introduced into the Spanish Criminal Law in 2000, in the context of the fight against ETA, its enforcement was very restricted until 2011. However, in a communicative ecosystem defined by social networks and in the midst of the shift from anti-terrorism policy to preventing radicalization, Spanish courts started to apply it more frequently than any other crime related to terrorism. Some authors have considered that its use is not related to the protection of legal rights or interest neither with the avoidance of damages, but to the development of a symbolic criminal law. From this perspective, this offense has as only purpose to censor the public expression of certain ideas.[288] The present debates on what the limits of freedom of expression should be and on whether certain speeches should be punished make to observe the media coverage of the application of these regulations especially relevant. The way in which the media covers these types of cases can determine the citizen’s conception of the limits of freedom of expression.
In consequence, after describing the different case laws and doctrinal interpretations of the offense of glorification of terrorism in Spain, in this chapter we will present the results of an exploration of the reflection that this crime has had in the media since 2011. To carry out this task, a database has been built with 1,403 journalistic pieces from two of the main Spanish newspapers, ABC and El País, in which the term “glorification of terrorism” is mentioned. The database has been explored through the construction of correlation networks between words, this discourse analysis technique has allowed us to see which have been the most mediatic cases and to see the different news topics. Thus, we have been able to observe how in the media this crime has ceased to be exclusively associated with the Basque political context, to be strongly associated with the punishment of certain speeches and content on social networks and artistic works.
The controversial crime of glorifying terrorism
In the period 2011-2017, 33 convictions were handed down for any crime related to Islamist terrorism; nine of them correspond to the crime of glorification of terrorism, which makes this offense the most applied in the field of jihadist terrorism.[289] However, these nine sentences are only a small part of the sentences handed down in Spain for glorifying other terrorist groups, such as GRAPO and ETA. In the same period, the glorification of these terrorist groups led to 56 convictions,[290] a relevant fact regarding that GRAPO disappeared in 2007 [291] and that ETA announced the cessation of violence in 2011.[292]
The crime of glorification of terrorism was created by Organic Law 7/2000, of 22 December, of Criminal Law reform. Its first section, which defines the behaviours punished, has not been subsequently modified. However, Law 2/2015, of 30 March, raised the penalties from one to two years of imprisonment to “a prison conviction of one to three years and a fine of twelve to eighteen months”.[293] As the Supreme Court has stated in STS 224/2010, of 3 March, “in the same article, two differentiated offences coexist”. The first offence declares the exaltation or justification of terrorism punishable. The second includes the crime of humiliation or discrediting the victims of terrorism. Focusing on the first figure – because it is the one that strictly corresponds to the glorification of terrorism – we must observe that in its Judgment 4539/2016, of 22 November, the National Criminal Court [294] points that this offence has three elements: “1st. The existence of some actions or words by which it is praised or justified. 2nd. The object of such praise or justification must be either any of the behaviours defined as crimes of terrorism in the Criminal Law, or any of the people who have participated in such behaviours, without it being necessary to identify one or more of such people […]. 3rd. Such action of praise or justification must be carried out by any means of public expression […]”.
Supreme Court: “Here, justify means that what is only a criminal behaviour is made to appear as a lawful and legitimate action.”
Given their ambiguity, the terms “praise and justify” have had to be defined by other case law. In reference to the term “justify”, the Supreme Court clarified that: “Here, justify means that what is only a criminal behaviour is made to appear as a lawful and legitimate action”.[295] Meanwhile, Judgment of the Constitutional Court 112/2016, of 20 June, defined that “to praise” is synonymous with “to glorify”, and it points: “[…] The one who praises – active subject of the crime – gives terrorism crimes and those who intervene in them – perpetrators and participants – the condition of a role model, giving them a value of assimilation to the legal order, despite contradicting it frontally”.[296]
We can interpret that this crime is carried out with the intention to express something publicly in such a way that it could be thought that any of the terrorism crimes included in the Criminal law is considered legitimate, or that some value or merit is given to its authors. However, this is not the only possible interpretation of this offence. The three elements described correspond to the objective part of the offence. There is no controversy about them. However, there are certain interpretative discrepancies regarding the subjective elements of the offence. These discrepancies have led to two different interpretations of the glorification of terrorism.
The first interpretation considers that the offence does not have subjective elements beyond guilty knowledge. In consequence, the words are valued regardless of their author’s intention or will. Therefore, the court considers the offence committed if the actions or messages can be interpretated as a glorification. This interpretation is known as the “Strawberry doctrine”, a name it received because this was the interpretation of the crime under which the Supreme Court [297] sentenced singer Cesar Strawberry for six humorous tweets. Although this way of understanding of the crime cannot be considered totally abandoned, it is very weakened after the Constitutional Court [298] acquitted Strawberry with the argument that convicting him based on a literal interpretation of his messages and without paying attention to their context would be a violation of their freedom of expression.
The second possible interpretation requires an intention or will of glorification beyond the guilty knowledge. Looking for this element, the court assesses the messages released beyond their literality and frames them within a context that allows assessing whether they effectively justify or glorify and if, above all, that was the intention of the subject when making them public. To determine this, the court resorts to the content shared or produced by the defendant. These materials have a probative weight because they are the object of the crime. But, in addition, they are analysed in the sentence and related to the radical nature of the subject. Proven that the subject had radical ideas, it is considered proven that the subject actually carried out the offence with an intention or will of glorification. This interpretation is followed in most cases of glorification of jihadist terrorism,[299] but it can be also found in other kind of proceedings, such as the one against the rap group “La Insurgencia”. “La Insurgencia” members were convicted of glorifying ETA and GRAPO through the lyrics of some of their songs available on YouTube. Unlike in the Strawberry case, here the court assessed the intention behind the prosecuted messages. The music group ideology was reviewed, and the court concluded that: “the ideology of its components is highly radicalised, maintaining a subversive and anti-system tonic”.[300] This argument allowed the court to overcome the argument made by the defence that the lyrics should be understood in an artistic context as particular as rap, and to appreciate an uplifting intention that allowed it to convict the accused. Some authors [301] have criticised this way followed by the Spanish courts, considering that it means transgressing the limits of a social and democratic state subject to the rule of law, and getting the state too close to the punishment of ideas.
Beyond the interpretation chosen, the legal reasoning that underlies the offence implies to consider certain actions or words expressed with publicity as a risk to public peace and democratic order. It is not required, neither in the law, nor in the case law, any concrete risk to be generated. We are confronted with a crime of “abstract danger”. Authors like Asua Batarrita [302] affirm that the capacity to threat a legal right that belongs to the community or the society and, at the same time, to harm individuals, is one of the main characteristics of terrorist crimes. However, in the case at hand – the glorification of terrorism – there is no individual harm [303] and there is no contact with a terrorist organisation. As SAN 4539/2016, of 22 November, explains, if the subject had contacts with a terrorist organisation or had addressed their messages to a specific group of people with the purpose of forming a terrorist group, the applicable criminal offence would be collaboration in its form of recruitment. Therefore, the dangerousness of the conduct cannot be predicated on the ability to instrumentalise the injury to another legal right, nor on the existence of a coordination or collective action. In accordance with the literality of Article 578 and the provisions of the Statement of Motives of Organic Law 7/2000, of 22 December, the legislator considers that the endangerment of the aforementioned legal rights is produced simply by the public manifestation of messages and actions that glorify or justify any of the crimes of terrorism or their perpetrators.
It is clear that, as recognised by the Constitutional Court, this offence limits the freedom of speech and ideological freedom.
This interpretation of the law allows to consider a wide range of opinions and ideas as a threat to legal rights belonging to the society – “supraindividual” legal rights. In the court decisions, there is no assessment or reference to any potential harm produced by the conduct tried.[304] In consequence, prosecution of this offence has brought important debates between scholars and also between law professionals.[305] It is clear that, as recognised by the Constitutional Court, this offence limits the freedom of speech and ideological freedom. However, the High Court considers that these restrictions – and others, referring to these rights, such as those aimed at protecting the honour of State institutions [306] – are legitimate. Along a line similar to that of the Constitutional Court, authors such as Ruiz de Landáburu have pointed that the restriction of the fundamental rights involved is justified when “in the punishment of apologetic conduct there is a greater social interest than in the exercise of freedom of speech, attending for this to the legal right attacked by the conduct and the seriousness and intensity of the attack”.[307]
Scholars like Cancio Meliá stand at the opposite extreme – an author who considers that this type of crime prohibits the support or defense of certain ideas or doctrines, and that its inclusion in the Criminal Code is only understandable taking into account its symbolic aspect, which “consists in proclaiming a mere taboo to the expression of certain opinions”.[308] From these more critical positions concerning Article 578 of the Criminal Code, it is argued that this offense restores the apology in a strict sense, not as a preparatory act, but as an autonomous criminal offence that punishes acts that do not even really endanger any legal right.[309]
An exploration of glorification of terrorism media coverage
Given the controversial nature of this crime, it is especially relevant to research how its enforcement is being showed by the media, as well as to know which cases are being especial attention. This is a way to go towards the consequences of this crime enforcement beyond the specific criminal proceedings.
Methodology
To research the media coverage of cases of glorification of terrorism, we have used web scrapping to build a database with 1,403 informative pieces (news, opinion articles and reports), published by two of the main Spanish daily newspapers, ABC and El País [310] (886 and 517 pieces, respectively), between 1 January 2011 and 1 November 2020. The procedure to build the database has consisted, first of all, in using the search engines of both media to find all the news, in which the term “glorification of terrorism” was mentioned. Once the news listings were obtained, the R software was used to download them and extract their date and text. Through text mining, different content analyses have been carried out, including the construction of correlation networks between words. The construction of correlation networks allows us to visualise relationships between words based on their tendency to appear together within the same piece.[311] Taking the words that make up the corpus of documents as the unit of analysis, their degree of correlation with other words within the same piece has been studied. To measure this correlation, the coefficient phi (φ) of correlations between all the words in the corpus has been used, calculated for any pair of X and Y words.
All these correlations can be represented graphically, by means of Markov chains, as networks of correlations between words. In this way, an immense network formed by all the words in the corpus can be built, in which the intensity of the links will vary depending on the degree of correlation between the words they link. Filtering this network by the most frequent [312] words and maintaining only those moderate or higher correlations (φ ≥ 0.3) will allow discovering networks of words that are relevant in the corpus and that are interconnected. Thus, by analysing the correlations between words, we will discover clusters of terms present in the corpus.
Results
The first observation (Figure 1) is that the crime of glorifying terrorism has given rise to a significant number of news items, most of which are related to the terrorist group ETA, which, as was already mentioned, was dissolved in 2011. In general terms, there is a growing trend in the number of news items that mention the glorification of terrorism, reaching a peak in 2016, at which point the trend reverts. This growing and then decreasing dynamic coincides with the evolution of the number of convictions for glorifying terrorism, which also reached its peak in 2016.
Figure 1: Amount of news per year
Despite the constant predominance of information related to ETA, the themes that accompany the media coverage of the crime under study are not constant over time. If we look at the most repeated words from 2011 to 2015 (Figure 2), we can appreciate that together with terms such as “ETA”, “terrorism” or “National Court” (the court that prosecutes the glorification of terrorism), terms such as “victims” and “prisoners”, and even the surnames of leaders of the Basque nationalist left appear, such as “Otegi” and “Ibazeta”. The prominence of these terms points that the news of glorification of terrorism from that period would be dominated by the controversies around the tributes to ETA prisoners and other issues related to Basque politics.
However, in 2016, the term “puppeteers” appears as one of the most repeated words. This fact indicates the great media repercussion of the arrest and indictment for a crime of glorifying terrorism of a company of puppeteers. The artist was arrested for the representation of work for kids, in which at one point a puppet exhibited a banner, in which it could be read “GORA ALKA-ETA”.[313] The most repeated words during the years 2017 and 2019 are very similar to those with greater prominence in the period prior to 2016. But in the years 2018 and 2020 the term “valtonyc” appears as one of the most repeated words. Valtonyc is the stage name of a Balearic rapper, who, in 2017, was sentenced to three and a half years of imprisonment for committing the following crimes through the lyrics of his songs: glorification of terrorism, insults to the crown and threats. In 2018, the Supreme Court upheld his sentence; however, he did not go to prison since he moved to Belgium and made himself available to the justice of the Central European country. He is currently at liberty, while the Belgian justice studies the case to decide whether the principle of double criminality is met, which is a necessary requirement to comply with the extradition order issued by the Spanish justice system.
Figure 2: Most used terms by year
Reviewing the terms most used during each year has allowed us to detect two cases with extraordinary media coverage, but it has also shown us that, as of 2016, the thematic homogeneity of previous years seems to be breaking to some degree. The analysis of the correlation networks between words makes it possible to confirm the differences between these two periods, as well as to go deeply into the topics covered in the analysed news.
Figure 3: Correlations network from the period 2011-2015 (correlations φ ≥ 0.3 between the 300 most used words*)
* For the spatial distribution of the nodes we have used the Fruchterman and Reingold ́s force-directed algorithm, which attract the nodes with more edges in common and repel those with less connections.
The correlation network built with the news published between 2011 and 2015 allows us to see that there are three large clusters, three speeches that are repeated in and through different news (Figure 3). The largest of them, cluster 1, refers to the tributes celebrated to the ETA prisoners, which confirms what the exploration of the most repeated terms would seem to indicate. Cluster 2 also informs us of problems and polemic that came from Basque politics, bringing together references to political parties and their leaders. Both clusters show us a media treatment of the glorification of terrorism, in which it is fundamentally related to Basque politics and its relationship with ETA prisoners. However, the third cluster has a completely different thematic line, since it illustrates the existence of news that report the arrest of people for making comments on social networks, specifically on Twitter (in the center of the cluster are the terms “arrest” and “arrested”). It is especially relevant that terms, in theory so central in the coverage of cases, related to a crime, such as the words “operation” or the different forms of the verb “to arrest”, appear in this cluster and correlate directly with the terms “social networks” and “comments”.
If we observe the network of correlations formed with the news after 2015, it can be seen that operation and detainees continue to correlate, remaining in an isolated cluster (cluster 2) together with the terms that refer to the different security forces. However, in this cluster the terms referring to social networks are no longer present, but rather “internet”, “DAESH” and “jihadism” appear. Again, it should be noted that these terms correlate with “arrest”, but not with others related to prosecution or conviction, a fact that could indicate that there is a tendency to inform more frequently about the arrests of individuals allegedly related to jihadist terrorism, than about the resolution of the judicial process (Figure 4).
Together with the cluster described, the network is made up of a large cluster, whose central point is the term ETA. ETA acts as a junction point between three clusters, which can be considered independent clusters. The smallest of these, cluster 1.A, shows us that the tributes to ETA prisoners and their relationship with the nationalist left continue to have a certain media presence. Along with this first cluster we find cluster 1.B, which stands out for having a very compact nucleus, within which are the terms related to the media coverage of the case of the puppeteers arrested in 2016 and charged with glorification of terrorism. The great media coverage of this case is in itself a remarkable fact. Although the preliminary investigation judge charged the artists with glorification of terrorism and put them into provisional prison, the National Court dismissed the case and did not open trial against them.
Figure 4: Correlations network from the period 2016-2020 (correlations φ ≥ 0.3 between the 300 most used words*)
* For the spatial distribution of the nodes we have used the Fruchterman and Reingold ́s force-directed algorithm, which attract the nodes with more edges in common and repel those with less connections.
Finally, we find cluster 1.C, which at one end also has a tremendously compact nucleus. If we look at the terms that make up this nucleus, we can see that it is the product of information related to the case of the rapper Valtonyc. These terms give a good summary of the case, since they inform us of the rapper’s conviction (“3”, “years”, ”6”, “months”), of the authorities that tried him (“national-audience”, “courtsupreme”), of the crimes, for which he was convicted (“insults”, “crown”, “threats”), and that he was convicted for the lyrics of his songs (“rapper”, “lyrics”, “songs”). It should also be noted that the trinomial “right” – “freedom” – “expression” correlates with Valtonyc, which indicates that the legal controversy around whether the conduct, for which the rapper was convicted, is protected by his fundamental rights was eflected somehow in the coverage of the case. However, it is noteworthy that this trinomial does not correlate with any of the elements of the other clusters.
At the opposite end of cluster 1.C we find another nucleus, less compact, that brings together the terms related to the publication of certain content on social networks, highlighting the central role that the binomial “carrero” – “white”[314] plays in this nucleus. This nucleus communicates with the one related to the Valtonyc case through the binomial “Cesar” –“Strawberry”. Cesar Strawberry is the singer of a rock group that in 2017 was convicted of exalting terrorism due to six tweets he had published on the social network Twitter. It should be noted that Cesar Strawberry does not have a central role in this second nucleus, but is slightly outside, acting as a bridge between the two nuclei, by directly correlating with “singer” and with “tweets”. This indicates that the core related to social networks and comments on Twitter has a certain independence from the Strawberry case. Although they have not had so much media impact, so they do not appear on the network, there are other cases similar to Strawberry. In fact, Cesar Strawberry was arrested in 2015 as part of “Operation Spider”, a police operation that began in 2014 and was aimed at detecting and prosecuting terrorism on social media.[315] As a result of the different phases of this operation, 77 people were arrested.[316] Of all the cases, to which these arrests gave rise, the most mediatic was that of Cesar Strawberry who, as already mentioned, ended in acquittal at the Constitutional Court. However, we have not found references to the acquittal in the built network, so it seems that it is not one of the most used terms or, at least, that it does not appear frequently next to the singer’s name.
Conclusion
First, it should be emphasised once again that the analysis carried out should be considered as a mere exploration, being necessary to delve into it and incorporate other techniques to give greater weight to the results obtained. However, the work carried out on the database built has allowed us to highlight that in recent years a small number of cases (those related to Valtonyc, the puppeteers and Cesar Strawberry) have had an important media coverage. These cases share the leading role with the information regarding the prisoners of the terrorist group ETA and the Basque nationalist left, the context in which the crime was created. Information regarding messages published on social networks, through which the crime was being committed, also appears in the two periods observed. In addition, it should be noted that in the period 2016-2020 the information related to jihadist terrorism has gained a prominence that it did not seem to have in the previous period 2011-2015. Finally, it is relevant to note that in the period 2011-2015 the references to detention correlate with the terms related to social networks. In the following period this kind of behaviour is already in a cluster, in which there is talk to convictions passing regarding the detention to be correlated with terms that refer to jihadism on the internet.
[…] it is possible that the prosecution and punishment of these behaviours may have a certain preventive character, by producing a certain “chilling effect” that leads citizens to refrain from publicly expressing certain speeches.
As a consequence of these results that we have just synthesised, we can see that the media, or at least the studied ones, are showing how the crime of glorification of terrorism is not only used to restrict certain discourses in the Basque political context, which is quite a serious issue by itself, and to prevent the dissemination of jihadist content, but this crime is used to restrict freedom of expression on social networks and in the context of artistic expression. In addition, it should be noted that out of the three most popular cases that we have found in the 2016- 2020 period, two ended with the acquittal of the accused. Finally, we must point out that it is difficult to justify this criminal policy from the point of view of a possible danger produced by the conduct prosecuted, especially considering that there is currently no active national terrorist group in Spain.[317] However, and given the extensive media coverage that we have been able to verify, it is possible that the prosecution and punishment of these behaviours may have a certain preventive character, by producing a certain “chilling effect” that leads citizens to refrain from publicly expressing certain speeches. However, it must be understood that this issue is, to say the least, problematic, since we are in the field of freedom of expression, a human right that is also essential for the effective realisation of other rights.
PUBLICITY ETHICS IN HIGH-PROFILE CASES
Introduction
Criminal cases have always attracted public attention. We have always been fascinated by violence or calamity. There are various theories about the reasons behind this interest, but generally, experts agree that, within certain range, it is a normal human impulse of a mentally healthy person to try to look in the mind of a “criminal” wishing to learn more by asking “What kind of a person can do such a thing?”.[318] This craving gets even more severe about details of the perpetrators’ personalities. At the same time, the media often emphasise the odd, the violent, the extraordinary – the things that pin our attention and make us look up from what else we are doing while the TV is on or buy a particular newspaper. As this trend became more intensive with the development of the media during the second half of the 20th century, in the United States, in the 1970s, the terms “media circus” and “media frenzy” came up to describe the disproportionately intensive media coverage of events of extreme interest to viewers and readers.
Things get much catchier if a famous person is involved. Our attention is often drawn by the news about a famous actor who has caused a car accident or a politician who goes on trial for abuse of power. It is widely accepted that being in the spotlight or being a public figure goes with a greater deal of media exposure, especially in private live. But when it comes to a court case, in which such a person is a defendant, such publicity can go too far and sometimes even influence the trial outcome.
Meanwhile, alleged offenders sometimes become famous for the crime they have presumably committed. There are well known cases, where persons accused of particularly grave violent crimes (like a murder with extreme cruelty) get as much public attention as that of a celebrity. This attention, however, often labels them as “evil” long before and regardless of the trial outcome, which may have disproportionately intensive, or even devastating, consequences on their lives.
Moreover, famous cases, being usually followed by many people, turn out to be decisive for the public trust in the criminal justice system.[319] The functioning of the criminal justice system as well as the personal merits of all involved officials, are judged by the wide public mostly through the prism of media coverage.
With all that said, it comes naturally that all stakeholders involved in a high-profile case have greater responsibilities to brace professional ethics and demonstrate personal example, yet such cases bring the opportunity to many of those involved to gain fame and profit.
The purpose of this chapter is to outline and explore the specific publicity-related ethical issues in criminal cases involving famous people. A lot of ethical dilemmas arise around trials, which are accompanied by intensive media coverage. And while for some of these choices there are clear rules in the legislation, defining certain behaviour as a crime or professional misconduct, others remain only a matter of personal moral judgement.
Main concepts
To be able to look at the ethics issues in detail, first we need to set the parameters of some terms that we are going to use. First of all, we need to define what cases this chapter will look at.
In the English-speaking world, it is widely accepted to use the term “high-profile case”. There are a lot of different understandings of what a high-profile case is. The meaning of this term varies nationally, and in addition to that there are some languages experiencing difficulties in translating such a broad notion. Sometimes it is referred to as “serious crime”: a crime with a high level of danger to the society.
For the purpose of this chapter, we can agree that a high-profile case is a case that has gained intensive publicity because it either:
- involves a famous person or a public figure;
- concerns an incident that happened under intriguing circumstances; or
- refers to what is perceived as “heinous crime”.
Public interest is often defined as something that is in favour of “the welfare or well-being of the general public”.
When speaking in public about such crimes, many people involved mix this concept with what is known as “a case of public interest”. Public interest is often defined as something that is in favour of “the welfare or well-being of the general public”.[320] The concept of disclosing information about a case, when it is a matter of public interest, exists in many countries and its purpose is to protect the general population from a certain danger by letting people know about that danger. Thus, for example, the public can be informed when a criminal act has led to the release of high amounts of poisonous substance in the air or water, or that a dangerous person is living in a community.
The two concepts differ by the aim, for which the information is released. In high-profile cases information is released for the sake of informing the public. And this brings us to the key question of which details are essential, as the media have to find the proper balance between what is catchy and would attract viewers or readers (and thus generate profit) on the one hand, and on the other hand what serves a societal role.[321]
In most cases, it all comes down to making a choice; as the right to information is opposed to the right to privacy, each actor involved in the case has to sustain the balance between being interesting to the audience and going too far. Let us see how these choices look from the perspective of the different parties involved.
The defendant’s perspective
Although they are used to living in the spotlight, public figures face significant challenges going through a criminal trial. They are often exposed to a higher degree of emotional turmoil due to the excessive invasion in their private life that is often not related to the particular case.
Do these people, who are not public figures themselves, need to share the publicity of those to whom they are related, bearing in mind that their misdemeanor (or crime) can affect their close one’s career or even lifе?
It gets more complicated when we take into account that in many countries, people holding public positions are subject to lower privacy protection than other people. This is reasoned by the understanding that those who are paid by public resources and have to make decisions on behalf of others, are publicly accountable for what they do. Such people, however, also sometimes break the law and their exposure then becomes even higher. An additional ethical problem comes up if such publicity extends to their closed ones. There are numerous cases of news about crimes or incidents, which make it to the media because they involve a family member of a public figure: a mayor’s son driving his car above the speed limit, or a Member of Parliament’s spouse causing a traffic incident. Do these people, who are not public figures themselves, need to share the publicity of those to whom they are related, bearing in mind that their misdemeanor (or crime) can affect their close one’s career or even life?
Other cases become “notorious” not because they involve a famous person, but because there are “odd” or “unusual” circumstances, thus making the accused person (or even a suspect) “famous” long before it is proven who has actually committed the crime. Details that are not essential might be a lure to disclose despite such disclosure can actually victimise the person. In such cases, even when the presumption of innocence is properly observed and all ethical standards in news reporting are duly followed, the negative effect is very likely to occur only by the scale of the spread of such news. In this type of cases, the accused person has not been usually known to the general public before, and being labelled for an “odd crime” might create a negative image that can last for a long time. An accused person with a particularly negative public image (e.g., a person linked to terrorism) may, in some cases, face serious problems in finding a lawyer. For such and other cases, a possible solution is the principle of “the right to be forgotten” in the internet, introduced in the EU by the General Data Protection Regulation and allowing persons involved in criminal proceedings to have their personal data erased or removed after the case is closed (if they are found not guilty) or when they have served their sentence.[322]
GOOGLE SPAIN SL & GOOGLE INC. V. THE SPANISH DATA PROTECTION REGULATOR AND MARIO COSTEJA GONZÁLEZ [323]
In 2014, the Court of Justice of the European Union delivered a judgement, which practically marked the beginning of the recognition of the legal right to be forgotten in the EU. The judgement was delivered in response to a request for a preliminary ruling made in proceedings between, on the one hand, Google Spain SL and Google Inc. and, on the other, the Spanish Data Protection Agency (Agencia Española de Protección de Datos) and Mr Costeja González. The proceedings concerned a decision by the Spanish Data Protection Agency upholding the complaint lodged by Mr Costeja González against those two companies and ordering Google Inc. to withdraw personal data relating to Mr Costeja González from its index and to prevent access to the data in the future. The request for withdrawal was justified by the argument that the data were “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes [for which they were collected or processed] in the light of the time that has elapsed”. The case raised a number of questions concerning the balance of rights, the responsibility of search engines as information providers, as well as the territorial jurisdiction of the Court of Justice given the differences in legislation between countries (the EU and the USA where Google Inc. had its seat).
GOOGLE LLC V. THE FRENCH DATA PROTECTION REGULATOR CNIL [324]
In a similar case, in 2019, the Court of Justice of the European Union delivered a judgement in response to a request for preliminary ruling made in proceedings between Google LLC (successor in law to Google Inc.) and the French Data Protection Authority (Commission nationale de l’informatique et des libertés). The proceedings concerned a financial penalty imposed on Google by the French Data Protection Authority because of the company’s refusal to remove from search results information about the criminal investigations against four persons (including business and political figures) with the argument that the information was of public interest. In this case, the Court of Justice ruled that the scope of this right was territorially limited to the 28 EU member states and information could not be delisted globally. The case led to Google introducing a geo-blocking system that prevented access to data from specific regions.
In high-profile cases, the defendant’s right to fair trial can be jeopardised by the extensive media attention. Media, and the entertainment industry, which is also sometimes involved by purchasing the rights of people’s stories to develop them in books, shows, series and podcasts, often do not respect the presumption of innocence shifting the focus from the courtroom to the TV screens and turning cases into “trials by media” – a term used to describe the influence of media for shaping public perceptions of either guilt or innocence, regardless of whether there is a court decision or what it is.[325]
At the same time, however, there are also cases, in which defendants with a positive public image can benefit from their reputation and get more favourable treatment during the proceedings than other people accused in committing a similar crime.
The justice authorities’ perspective
Without denying the right to information, justice system practitioners are usually led by the principle that cases are not solved through the media and the less information is disclosed, the better. In practice, however, things do not always work like that.
The authorities involved in criminal proceedings – police, prosecutors, judges and, where applicable, lay judges or jury – are legally bound to observe the principle of fair trial and to conduct an objective and impartial investigation. This, however, seems to be much more difficult in high-profile cases, where the public attention and expectations are sometimes impossible to ignore.
As a rule, criminal justice systems are organised in such a way as to ensure that the opposing parties are equal and the court (with or without a jury) is impartial. The authorities have to observe many limitations when disclosing information, especially on pending cases, and are also responsible for finding the balance between the right to information and the right to privacy, and for respecting the presumption of innocence. In cases of conventional crime, these responsibilities do not pose a serious challenge. In high-profile cases, however, there are a number of additional factors that the police, prosecutors and judges should take into consideration.
First of all, in many countries, privacy rules are less strict when it comes to cases “of public interest”, but this does not relieve the institutions of their responsibilities to make sure there is a fair trial.[326] In the United Kingdom and the Commonwealth, the so-called “sub judice rule”[327] is observed to make sure additional information does not influence the trial outcome. When dealing with prominent defendants, few specific guidelines exist. The Crown Prosecution Service, for example, has developed some broad guidelines for prosecutors on how to assess public interest and how to balance the right to a fair trial with the right to information.[328]
Prosecutors, on the other hand, may feel pressed by public opinion’s strive for justice and be tempted to pursue a disproportionate punishment to satisfy the public expectations.
There are other factors, which can influence the work of criminal justice authorities. The law enforcement authorities, for instance, often work under pressure to quickly identify and arrest suspects under the light of the cameras, regardless of what evidence they have managed to collect. Prosecutors, on the other hand, may feel pressed by public opinion’s strive for justice and be tempted to pursue a disproportionate punishment to satisfy the public expectations. On the contrary, in cases of influential defendants with a positive public image, prosecutors might feel emotionally burdened to seek lighter sentence. It is, of course, a matter of professionalism to avoid making decisions under the influence of public opinion and the vast majority of prosecutors perform their tasks objectively. Nevertheless, the public pressure on authorities in high-profile cases is a factor that should not be underestimated.
In some cases, the parties are tempted to deliberately use the media as a channel for influence the outcome of the trial. Some communications and public relations companies have even developed guidelines and are offering their services to help the defence in high-profile cases in their relations with the media.[329]
The main responsibility to guarantee a fair trial lies with the court. Courts are obliged to make decisions only based on the evidence and the information obtained in the courtroom and disregard any additional information from other sources, but this is not always an easy task given that judges (and jurors), like all other people, live in a certain community, watch TV and read the news. Even if there are no risks for their impartiality, judges in high-profile cases might find themselves in situations where they have to undertake additional (practical) measures to handle the case. Thus, for example, they may need to re-schedule a hearing either to avoid or accommodate the increased interest on the part of the media.
The media’s perspective
Of all the actors involved in high-profile cases, media is naturally the one that always strives for greater publicity. And it cannot be otherwise, given the undisputed social role of the media as a promoter of the freedom of information and expression. Very often, however, the media have to find the balance between their social role and the rules of the free market environment, in which they are operating. Around the world, there is a vast variety of media regulations and self-regulatory practices that have to maneuver between fundamental rights, avoiding censorship and promoting development, all that in a constantly changing environment of emerging new forms of communication.
With the rapid development of social media, the division between mainstream and alternative/new/online media significantly changed the media scene, putting traditional media industries in a disadvantaged situation. The introduction of privacy and ethics regulations for online content has lagged behind, which put the “old-type” media in an unfavourable position. Traditional media found themselves in a situation where they had to fight for survival with lower sales leading to smaller staff and less time to work stories out, which sometimes forced reporters to “choose being first over being right”.[330] More and more newspapers went online, and papers-backed magazines lost circulation. TV and radio stations seem less affected by the newly emerging forms of online communication, but the change in the way news is made has obviously influenced them as well. The format, in which news are presented, also seems to be constantly changing as “most news sites mix text, audio, video, and slideshows with citizen input and commentary through video and photo contributions and comment sections, forums, and blogs.”[331] This change led to globalisation of news with less news remaining locally relevant.
Over time, in pursue of ratings, audience and exclusivity, criminal news began to offer more emotional-level content and less informative value.
High-profile cases have always been a “gold mine” for the media. Over time, in pursue of ratings, audience and exclusivity, criminal news began to offer more emotional-level content and less informative value. Stories, such as a person telling a reporter when their “famous neighbours” had a quarrel or at what time they left to work, started to often feature in the news, shifting the focus of the media from their role to inform and educate to a role of satisfying the viewers’ curiosity about the private life of important people.
In addition to the traditional mechanisms of self-regulation, such as codes of ethics and editorial policies, which some media follow, but which are usually too broad to reflect the specifics of covering a high-profile criminal case, an essential factor is the market itself, as the media have to find the balance how to get the attention of increased number of readers or viewers without “crossing the line” and losing advertisers or audience.
In that respect, the role of editors and editorial policies seems to be underestimated. In a situation where newsrooms are understaffed, reporters often have to make decisions what crimes are worth covering or should they publish a mug shot. Photographers and cameramen also have a special role in how a person or a story is presented. Sensational images of people in vulnerable situations or footage of violence might be an issue of editorial policy, but in the end, editors choose from what they have.
The rush to publish first may sometimes tempt reporters to release the news either without double checking all the facts or failing to get the complete story, which can cause harm to persons concerned. News coverage can easily set the community against a particular defendant, sometimes solely for the fact that they are popular, rich, etc.
With full account of the wide variety of media outlets differing in both quality and focus, it should be noted that the end of the 20th century witnessed some bizarre media coverings of high-profile criminal cases that shifted the focus from what was happening in the courtroom to what was broadcasted in TV shows. The entertainment industry also took advantage of a number of cases to diversify its portfolio of products by adding media trials, criminal documentaries, talk shows, and even live streams of entire trials.
THE TRIAL OF O.J SIMPSON [332]
The increasing media exposure of criminal cases reached what is perceived as its “peak” in 1994 in the United States with the murder trial against the former football star and later a broadcaster O.J. Simpson. The trial is often assessed as “media circus”, but at the same time it is also viewed as one of the strongest game changing events that raised a number of ethical issues related to the operation of the criminal justice system, the media and the society in general. The media coverage of the trial exceeded the coverage of many of the world events taking place at that time. The media were closely involved in the case and followed all steps of the investigation and the trial, even including a live stream of the car chase leading to Simpson’s arrest, in which reporters in helicopters were searching the area ahead of the police. The live stream was watched by an estimated number of some 95 million viewers and there is evidence that part of the audience was actually supporting Simpson encouraging him to escape from the authorities. Simpson was then perp-walked to the police allowing the media to report extensively on the event. Simpson himself wrote a public letter the evening before he had to surrender to the police, explaining his view on the murder and enouncing a “last wish”. During the trial, some of the evidence of Simpson’s guilt weredismissed by the court because of being compromised by the extensive media coverage. A presumably essential witness was not allowed to testify, because she had sold her story to a tabloid. The indictment hearing was cancelled due to intensive media interest. At later stage, the trial was broadcasted by a CCTV camera on a so-called Court TV channel for 134 days. The judge was later criticised for allowing cameras in the courtroom under the pressure of the media publicity. As the trial was drawing to a close, the authorities became increasingly afraid of outburst of riots if Simpson was found guilty. In October 1995, Simpson was acquitted.
Later on, most of the participants in the trial published books discussing their own points of view on the case: jurors, defense team members, witnesses, police officers, prosecutors, even forensic experts.
The unseen before publicity divided the public on racial grounds provoking a huge debate about racism and unequal treatment of people of colour in the justice system.
Theories continued to emerge long after the end of the trial and a number of documentaries on the case were released with interviews with participants in the process. By 2020, more than ten media developed the case into films, series and documentaries. O.J. Simpson even became a character in computer games.
Many ethical questions came up from the O.J. Simpson case, the answers to which changed the way presumption of innocence and information disclosure during a pending trial were considered all over the world.
Much later, in 2018, the European Union made an effort to unify the rules on data protection issues by introducing the General Data Protection Regulation. It regulates all aspects of the storage and use of personal data and, in order to balance the protection of personal data with confronting rights, offers certain exceptions when disclosing personal information for journalist, artistic, academic and literary expression, however, without clearly defining their scope. National legislators have also refrained to specify who can benefit from these exceptions and what information can be disclosed, by just repeating the respective texts of the General Data Protection Regulation within their national legislations,[333] which often hinders their precise application.
The EU data protection legislation has its opponents, who believe that it has shifted the principle of the freedom of speech to what the German Prof. Niko Härting calls “prohibition by default”.[334]
In the United States, efforts to promote the balanced and ethical coverage of news related to crime have led to the launching non-profit media outlets specialised in reporting on criminal matters, such as The Marshall Project and The Appeal.
The entertainment industry’s perspective
When speaking about ethics in high-profile cases, an actor whose role should never be underestimated, is the entertainment industry. Series, documentaries, books and movies (not to mention reality lawsuits) have followed many of the notorious cases, disclosing a lot of details about them. Some of these works presented and discussed different versions and questionable details. Recently, true crime documentaries and podcasts have gained increasing popularity. They examine real cases, involve real people with their stories, habits and relationships, and sometimes allow the audience to discuss motives, versions and virtually take part in the investigation. Even if many of these shows do not look at high-profile stories of famous people, they deal with crimes that have been reported by the media locally and are known within the community, in which the crime was committed.
After the O.J. Simpson trial and the consequences this case has led to, there is general understanding that, as long as these shows concern closed cases and cannot influence the court, they are acceptable.
Still, some ethical issues remain open. People involved in high-profile cases (investigative police officers, lawyers, witnesses or defendants) are sometimes offered a lot of money in exchange of the right to tell their stories in a book, a documentary or a movie. Stories are generally not protected by copyright, but those who use them without an agreement with the person(s) involved are at risk of litigation. Sometimes purchasing the right to tell one’s life story includes the right to adapt the story or alter parts of it.[335] Such stories, however, often refer to facts and points of view related to other peoples’ lives, which might affect their public image and/or personal life.
Prof. Marilyn McMahon from Deakin University in Australia outlines three main legal issues related to true crime podcasts without even touching upon their ethical side:[336]
- the evidence presented is often evidence that is not admissible in court (facts that a witness knows by what they have been told by other people, previous convictions used as incriminating evidence, etc.);
- the focus on certain suspects sometimes disregarding evidence in their favour can breach the presumption of innocence;
- the justice system is often presented as inert and not dealing with “cold cases” as opposed to the podcasters, who are the only ones interested in investigating them.
All that said, the role of the podcast genre should be acknowledged. As long as they are used in compliance with the law and the ethical principles, podcasts can support to work of the justice authorities by mobilising the involvement of the audience in pursue of justice.
The use of podcasts by the Dutch police [337]
The police in the Netherlands took advantage of the podcast genre to look for clues and more information about an unsolved murder case dating back to 1991. The crime was committed in the city of Naarden, but neither the victim nor the offender had been identified. The initial investigation team shared some of the evidence collected by the police and even did a facial reconstruction thanks to the new technologies available. “We often have to be careful about disclosing information about cases precisely so as not to disrupt an investigation, but in this case any development is profitable,” said police spokesman Martin de Wit. “It has been a big success and we have got a lot of exposure for the case so it is only logical to do it again. There are departments in other regions thinking about it now. With cold cases there is more you can share. But it doesn’t mean it can’t be used for new cases too,” he added. Thanks to broadcasted podcast, the police started checking 15 new leads.
The lawyers’ perspective
“Guilt by representation”, which is the moral conflict lawyers experience when having to defend “bad” people, especially in cases of heinous crimes such as terrorism or child abuse.
Lawyers’ role in the criminal process is to safeguard the rights and the interests of the accused person. Such a role, when it comes to defendants in high-profile cases, can be extremely emotionally exhausting as it is usually associated with intense public attention. Lawyers often face “public and official hostility”[338] for defending people that are often despised and are sometimes judged by the media long before the trial has even started. Researchers also describe the ethical dilemma of “guilt by representation”, which is the moral conflict lawyers experience when having to defend “bad” people, especially in cases of heinous crimes such as terrorism or child abuse. Defendants with a bad reputation sometimes experience difficulties finding “competent counsel”.[339]
At the same time, these are cases that can make a lawyer popular and serve as a steppingstone for a career advance. Prominent lawyers have always been associated with defending famous people. In the eyes of society, good lawyers are those lawyers that public figures trust to defend their rights rather than those who win their cases but whose achievement are rarely publicised.
In high-profile cases, lawyers may be lured to deliberately seek media attention either because they believe that this would help their clients (by telling their story to the public) or because they want to build their own professional profile. Successful criminal lawyers have managed to carefully find the balance between the law, the relations with their clients and their public image.
Deliberately provoking media interest, irrespective of the motives, can have negative implications. Having the attention of the media does not always stop with the lawyer’s and their client’s statements but, depending on the public response, the media often dig up to find more information. Journalists seeking other points of view may interview different sides. Moreover, the media may focus on facts that are less relative to the case, or even shift to a different story if they find it more interesting, which can distort the lawyer’s defence line. This, combined with the risk of misconception if persons, who are less experienced with the media, are given the opportunity to share their opinion, can jeopardize the initial defence strategy. Personal interest can also influence the lawyers’ belief that they are acting in favour of their clients. Overall, lawyers relying on publicity to prove their point outside the courtroom face the risk of easily losing the control over the situation. It can also lead to undesired disclosure of personal details about the defendants, third parties or about the lawyers themselves, such as bad habits, unknown relations to other people, exposure of property, etc.
Before talking to the media, lawyers would need to obtain their clients’ consent. For a skillful lawyer, it might be fairly easy to convince their client of the potential benefits of “exporting” the trial from the courtroom to the media (the media may disseminate information that would otherwise be inadmissible in court, media publications can influence emotionally the public, which in turn can pressure on the authorities, etc.). Nevertheless, when it comes to the media, many legal practitioners stress upon the importance of professional self-restraint to avoid extrajudicial comment by third parties.[340]
After the case is closed, lawyers, as all other participants in the proceedings, can be tempted to sell their story for a book or talk about it in a TV show. In some cases, this option may be included (or excluded) as part of the lawyer’s contract with their client, but in all other cases the general principles of the legal profession would require the lawyer to seek their client’s informed consent before disclosing their story.
The rules and ethical guidelines governing the work of lawyers differ from country to country. Nevertheless, these provisions together with the general principles of the legal profession and the client-lawyer confidentiality rule are the main safeguards against unethical behavior on the part of lawyers.
Third persons’ perspective
Besides the high-profile defendants and the other persons involved in their criminal trials, many other people often come under the spotlight either because they have been present at the crime scene, or are somehow related to the defendant, or just know something about the defendant, which is not related to the case. In pursue of truth and/or of a good story, the media often interview people who they believe are relevant. When these persons are witnesses, who are summoned to testify during the investigation, they are usually not allowed to speak about the case while it is still open. The court hearings, however, are mostly public and there are no legal limitations for witnesses to speak to the media after testifying.
Such people can share a lot of information about the defendant, but they can also mix facts with speculations and personal information that is often not related to the case but to the personality or the private life of the defendant (e.g., information about the defendant’s habits, their financial situation, judgement about the people they meet, gossips, etc.).
It is worth exploring what would motivate a person to talk to the media in such situations. First of all, many people agree to talk to the media, because they believe they can either help or harm the defendant. Such a motivation, however, even if the person is used to media appearance, can sometimes lead to an unpredictable effect.
Journalists can be and often are very persuasive and intrusive when it comes to convincing people to be interviewed. Witnesses, neighbours and relatives should carefully consider the potential impact of their media appearance before they agree to speak. Moreover, confronted with reporters and cameras, many people, especially those with less or no experience with the media, can feel uncomfortable to refuse to make a statement, even if they feel this is the right thing to do.
Another motive to speak to the media can be the strive for personal publicity. There are persons, who find appearing on TV an important thing and would not refuse such opportunity, if it comes their way. Such a strive, however, can often influence the persons’ judgement about the importance of what they wish to say and the consequences of it.
Conclusion
The O.J. Simpson trial made the role of publicity in criminal cases an issue of discussion between social scientists, media and criminal justice professionals, and some ethical thresholds were agreed upon. However, there is still no common agreement in the society as to when the taking criminal cases from the courtrooms to the media goes beyond reasonable limits. As high-profile “media circus” cases continued to occur, including among others the trial against Oscar Pistorius [341] and more recently against Harvey Weinstein, concerns that “these are precisely the cases in which the participants are most likely to act unprofessionally because of the press” are becoming more and more valid.[342] In this situation, the personal awareness of those involved in the proceedings about the potential implications of excessive publicity should be the leading principle and should dominate over any other motivation for proactively seeking the involvement of the media.
Assessing the Risk of Isolation of Suspects and Accused (ARISA) is a series of projects striving to promote the rights of suspects, accused and convicted persons in the European Union.
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