In a society filled with instant news and where anyone with an internet connection can publish an opinion, is an objective unbiased jury still achievable?
Is artificial intelligence (AI) the long-term solution to upholding the right to freedom of expression and the right to a fair trial? Is it time for the law to be proactive rather than reactive in dealing with the ever-changing world of modern media?
It is a fundamental of democracy that the media is largely unfettered, and it is correct that this remains unchanged and celebrated. This principle is supported by Article 10 of the European Convention on Human Rights (ECHR). However, the ECHR also supports the right to a fair trial under Article 6. The tricky part comes in balancing these two rights when they indirectly undermine one another.
Picture the position where a well-known celebrity stands trial: social media will instantly come alive with salacious gossip regarding their past and almost everyone across the globe will likely have an opinion about their alleged guilt. This blanket of information is prejudicial which is why the assertion of guilt by a publisher is prohibited under section 2 of the Contempt of Court Act 1981.
However, the collective power of social media users remains broadly untouched by section 2, and here we have 'trial by social media'. The Court of Appeal attempted to deal with a similar situation in R v F ex parte BBC, but the decision did not fully resolve the issue as the Court invited the Attorney General to investigate the extent of the problem.
The Attorney General announced in September 2017 the launch of a consultation into social media’s effect on the fair trial process. It has long been established that ‘trial by the media, is not to be permitted in this country’’, but now it is time for the law to catch up and ensure that trial by social media does not happen.
The importance of social media
The power and importance of social media has been highlighted recently by the uncovering of the Hollywood sexual harassment scandal, as social media gave a voice to the suppressed and fearful. We therefore want to avoid a position where the law chills the use of social media. It is a powerful tool and everyone should have this unfettered right. However, we still need to have an objective unbiased jury, who make their decision purely on the facts they hear at trial.
Research conducted in 2010 found that 12% of jurors during high-profile cases conducted their own internet research, despite the judge’s instructions. Furthermore, given that a reported 56% of the population get their news from social media, we are potentially in a situation where at least one jury member in every trial is accessing social media to research a case.
In recent years we have also seen jurors attempt to contact defendants on social media, but none quite compare to the juror who set up an online poll publishing all the evidence, and then asking for her friends to cast a guilty or not guilty vote.
In an era where the temptations of social media appear to be too much for some jurors, is the fair trial process being undermined? Should individual users now find themselves in contempt if they post online whether they think someone is guilty? Or should the social media giants face the music too?
Neither option is entirely satisfactory. The power of social media comes from the many voices, thus, the imputation of guilt comes from thousands of different users’ opinions, not just one on their own. It is unlikely that your average social media post would ever have a big enough impact to create a substantial risk on its own despite the Court of Appeal's threat in R v F ex parte BBC; instead it is the collective effect of the many.
Placing the burden entirely on the social media companies has the potential to cause a chilling effect or censor material too far, which is the complete opposite of what social media aims to achieve.
In the short term, neutralising solutions should include a stronger use of sections 69-72 of the Criminal Justice and Courts Act 2015, by putting jurors on a social media blackout for the duration of high profile trials. In addition, better education is needed to make members of society clearly aware of their duties as jurors, as neutralising instructions given by a judge on day one of the trial are often too late and may be ineffective.
There could be a long-term solution which removes the need for juries altogether. Software developed by scientists at UCL in 2016 was able to predict with 79% accuracy cases heard before the European Court of Human Rights. The cases ranged from privacy matters to torture, and dealt with complex factual patterns. A similar study was conducted in the US Supreme Court, with very similar results.
Given that jurors are less able to be objective and unbiased in an era of social media, is it time to give AI a try? Ultimately, relying on software to determine a trial opens a whole series of other issues, including ownership, appeals, and the role of judges and lawyers. Furthermore, the software will need years of development and testing before a defendant’s liberty is in the hands of a computer. A medium-term solution could be to use it concurrently with juries to identify where social media bias may have skewed the outcome.
However bold this solution may appear, it is important for the law to be proactive rather than reactive in dealing with the ever-changing world of modern media.