Social media, free speech and a fair trial

It is a mantra often heard, ‘It’s my social media channel, I can say what I want. It’s freedom of speech’.

Social media is dynamically changing the way in which we share an opinion and advocate a cause.

Social media continues to redefine how we entertain, publish, govern, communicate, buy, swap, sell, wage war, find love and much more. Individuals, industries and institutions are tussling with social media’s complexities, trying to minimise the risks while harnessing the opportunities of the media.

This digital frontier is transforming our interactions with each other, our workplaces and our institutions; redefining how we do what we do, continually questioning what is acceptable in all facets of our lives.

The ease with which anyone can comment on any topic is a liberating part of democracy. Mobile devices and social media now make this even easier for us to access topics of deep interest, to create content and share commentary. Free speech is a precious gift. However, it has boundaries in Australian law including defamation and contempt of court.

People often confuse their right to free speech via social media with what is legal and may inadvertently break the law with their online commentary, especially during a criminal court case. Contempt of court law upholds the right to a fair trial for all. Judgement can only be made on the evidence heard in court. All traditional journalism commentary and reporting follow strict procedures so as not to break this law.

Journalists understand these restrictions and have legal advice as part of their publishing process but the public does not. The capability of anyone to publicly comment online places the right to a fair trial at risk. Commentary like, ‘Catherine is definitely guilty. Hope she gets a massive jail sentence when her trial starts next week #throwawaythekey’ is common. Individuals post via their social media accounts, bypassing newspapers, radio and television requirements, without understanding the unintentional impact of their actions.

Launching an inquiry this month, the UK Attorney General is calling for evidence to judge the impact of social media on criminal cases. In recent years, several high-profile cases were abandoned because abusive and threatening comments made via social media prejudiced the opportunity for a fair trial.

In Australia, the horrific rape and murder of Jill Meagher by Adrian Bailey in 2012 is similar to the high-profile criminal cases in the UK and the public’s use of social media. The level of social media engagement around this event was unequal to anything seen in Australia. Tracking the online commentary, researchers believe the ‘…potential negative impacts of social media … and the right to a fair trial was intimately played out in the Meagher case through social media engagement’. Adrian Bailey hate pages and Facebook’s initial refusal to remove them resulted in warnings from Victoria’s Attorney General and a suppression order from the magistrate on publishing commentary which could compromise a fair trial.

So what motivates people to persecute others online?

We are capable of seven basic emotions – fear, anger, disgust, contempt, joy, sadness and surprise – of which four have a negative association. In such horrific circumstances, fear, disgust, contempt and sadness will be the overriding emotions. Combine these with a drive to make a difference or to support a cause and people will comment seeking self-fulfilment whether it is legal or not.

Social media helps us connect in many positive ways, but it does not replace a face-to-face conversation. Using mobile technology dehumanises our communication experience, separating us from the direct emotional impact of a face-to-face interaction. It allows enough emotional detachment for us to avoid seeing the negative impact of our comments on the psychological well-being of others. In addition, there is little or no accountability for negative actions of people online.

Yet in a positive way, social media is empowering; it provides a platform of speed and reach to voice an opinion or to convey critical information.

People will come together online to meet a need and will repurpose social media to meet this need whether it is socially acceptable, legal or otherwise. In this way, social media and mobile technologies continue to present challenges and opportunities.  It is redefining the way people interact, how people organise themselves and so individuals, communities and our institutions must question social media’s role in undermining or upholding values vital to a healthy functioning democracy, like freedom of speech and the right to a fair trial.

Our challenge in addressing these questions is to decide what is up for change and what is sacred and must be left alone; in pursuing justice online we should not unwittingly deconstruct the very framework which allows our laws to be justly upheld.

 

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