Media Trial | The Court of Public Opinion

In the age of technology, where viewer-attention is gold dust, information is abundant, possibly of questionable veracity; and time is sparse, people believe the things that at first seem logical and which satisfy their line of reasoning, without an inquiry into the truth. Once a belief finds its roots, people are likely to believe all subsequent evidence in favour of their belief, and disregard the ones that challenge it. Media trials owe its sway to this amalgamation of cognitive biases.

A media trial is a phenomenon where public opinion on the culpability of the accused regarding a controversy or a criminal investigation/trial is largely affected or determined by the media, which often precedes a trial or a verdict by a judicial body.

In a space where first and fast reporting and reaction is lauded, often distorted and unsubstantiated evidence is put forth, with covert undertones angling towards a narrative, which may be of guilt or innocence, without an inquest into the veracity and truthfulness of the evidence or into the reverberations that false accusations may have on the lives of the accused. The consequence of this haphazard reporting is that regardless of the outcome, the accused is punished by public ostracism and scrutiny, and is left with little hope for a normal life again, all this in order to be the first to report. In the words of Andrew Belsey, “In the temptation to sell stories, what is presented is what ‘public is interested in’ rather than ‘what is in public interest’.” To quote an excerpt from the representation to the U. N. Rapporteur by the British Irish Watch,

If the media repeatedly accuses people of crimes without producing any evidence against them, they create such certainty of their guilt in the minds of the public that, if these persons are even actually charged and tried, they have no hope of obtaining a fair trial. When such trials collapse, the victims of the crime are left without redress. Equally, defendants may be acquitted but they have lost their good name

Influenced by the media, the court of public opinion adjudges on the basis of arbitrary notions of fact and law, with little regard to evidence or its strength and bases its ideas on its own understanding of structuralism. Such a trial has a chilling effect on the rule of law, due process, natural justice, and the right to fair trial.

The futility of recourse

Media trial and “public justice” are particularly concerning because there is no valuable recourse or defence, as everything may be construed rightly or not, in the manner that fits the desirable narrative.

Akin to a Trial by Incantation, a practice used in the 17th century to determine the guilt of a person, where the inability to recite prayers successfully was seen as guilt, as the word of god couldn’t be recited by evil, and successful recitation was seen as the trick of the devil, there truly was no winning; in a trial by media, refutation and silence are both seen as guilt.

There’s no recourse to slander, as an attempt to silence defamation is seen as an attempt to suppress or conceal the truth, and inadvertently this has the opposite effect of publicising it further, this phenomenon is popularly known as the Streisand Effect.

Sub Judice and other forms of Protection

Sub Judice, a Latin term to mean “under a judge” is used to refer to a matter that is before a competent judicial body for consideration. In several countries, there are laws that prohibit comments on cases likely to cause prejudice and substantially interfere with the judicial process; this is done to ensure the right to a free and fair trial.

England, Australia, and New Zealand are particularly stringent about the publication of comments through any medium when a criminal case is Sub Judice, to ensure that any officer of the court involved in the judicial process is not prejudiced or impeded in their ability to dispense justice. The provisions are far-reaching and protect suspects, accused, witnesses and all those that could possibly be involved, from being dragged into the gauntlet of media.

In the above listed three common law jurisdictions, the constituents for a criminal matter being Sub Judice are largely the same, being:

  1. Arrest, without a warrant.
  2. The issue of a summons to appear, or warrant to cite.
  3. The service of an indictment or other document specifying charge.

In India, if comments are likely to interfere, impede or prejudice the judicial process or its administration, then they are likely to be in contempt of court. S. 2 of the Contempt of Courts Act 1971 states that criminal contempt is that which “prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding” or which “interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”. Here, the term “judicial proceedings” under S. 3 of the Contempt of Courts Act in respect of criminal proceedings and commission of offences, is defined to mean “where a charge sheet or challan is filed or where the court issues summons or warrant against the accused.”

The contention that the law should provide protection under the rule of Sub Judice, once the FIR is filed as the pursuant investigations, and all other elements of its process fall within the meaning of “administration of justice” and indicate “imminent criminal proceedings”, made in Smt. Padmavathi Devi v. R.K. Karanjia  was defeated by A.K. Gopalan v. Noordeen, to the extent that it said that criminal proceedings were to be treated as imminent from the date of filing of the FIR, even before the arrest and was further limited, to matters where criminal proceedings were imminent after the arrest had been made. The scope of Sub Judice was further restricted by the Contempt of Courts Act of 1971, where matters are said to be Sub Judice once a charge sheet/challan has been filed or summons or warrant has been issued.

One possible solution to this would be to disregard the imminence of criminal proceedings at any stage, and to provide the suspects with the protection of Sub Judice as a matter of course once an FIR has been filed. And during this period all that should be permitted is a dry recitation of facts from verified and verifiable sources, or through police press releases while providing adequate protection to whistleblowers so as to not impair scandal exposés. This will not have the effect of restricting free press as, if the object of reporting is to bring forth the truth, even a dry recitation of facts will be successful in that. And if the object is Television Rating Points, then the right to dignity and fair trial would take primacy, and then comments and reports would attract no protection.

The contribution of the press in shining a light on public scandals has been invaluable, and this ability of the press to freely report facts with neutrality should never be curbed, as educating the populace regarding facts is the duty of the press. However, commentaries comprising speculation of culpability of suspects do not create any value besides sensationalism. And when value stands to benefit no one besides the media, it ceases to function for public interest and the protection under Article 19 must cease to operate.

Now the question that stands before us is, in corner-cases where the “accused” in the Court of Public Opinion is hounded and vilified by the media, and is never made an “accused” in the Court of Law, what protection, recourse, or remedy is available to them? At present, it seems like there’s none. What justice will a defamation suit against media conglomerates with a battery of lawyers and endless connections bring? A meagre compensation and an apology that will occupy a time slot with the lowest viewership.

Conclusion

Self-regulation has failed, as the current NBSA(National Broadcasting Standard Authority) guidelines on ‘Potentially Defamatory Content’ is lacking and can easily be interpreted to mean that no inquiry on the truthfulness of content is required as long as the person concerned hasn’t provided their side of the story in an undefined “reasonable time”. The following steps need to be taken to address this issue:

  1. The decision in A.K. Gopalan v. Noordeen and Smt. Padmavathi Devi v. R.K. Karanjia must be revisited.
  2. The recommendations made in the 200th Law Commission report must be reconsidered.
  3. A balance between the right to free press, and the right to dignity and to free and fair trial must be struck, as in the present scenario, the latter seems subordinate to the former.

About the Author: Shantanu Shetty [2016-21] is pursuing BSL.LL.B from Dr D. Y. Patil College of Law, Nerul, Navi Mumbai. Shantanu is interested in Constitutional, Human Rights, Cybersecurity, and IT laws. He has a penchant for programming and the willingness to learn new things.


 

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