How social media is creating dangerous legal precedents

Where do trials happen in the modern age? Increasingly and chaotically, they happen out of court, and without the benefit of due process or the presumption of innocence. The public has long been familiar with the phrase “trial by media” but it has often now been replaced or augmented with “trial by social media”. Woe betide anyone who finds themselves on the wrong end of that process, which rarely results in acquittal. 

Social media provides far greater scope than traditional print or broadcast media not only for the rapid dissemination of accusation, but also the swift delivery of judgement from innumerable sources. What it tends to bypass, however, is a full investigation of the evidence.

Tom Brokaw, the veteran news anchor of NBC network, is undergoing such a “trial” at the moment. In accusations that started in the press and then took flight on social media, two former female colleagues claim he touched them without consent in the 1990s. He denies the allegations.

In an unusual turn of events, more than 100 women who have also worked with Brokaw have effectively put themselves forward as character witnesses: they signed a letter supporting Brokaw, calling him a “valued source of counsel and support” who had treated them with “fairness and respect”. Now it transpires that some NBC staffers claim they felt under pressure from executives to sign, but the end result is the same: a confusion of accusations and rebuttals and very little clarity.

Such public scandals are becoming a near constant feature of life in the US and Western Europe: they have many of the elements of a trial – an accuser and accused, conflicting testimonies, character witnesses, heated public debate and the possibility of disgrace – but few of the formal rules. And judgement is arrived at dangerously swiftly.

Sometimes – as with many of the instances of internet shaming or #MeToo accusations – the circulating allegations are never intended to go anywhere near a conventional court setting. One example was the “Shitty Media Men” list, an anonymous spreadsheet circulated in the US in October 2017 which documented men accused of sexual misconduct in the publishing industry. It wasn’t intended to become fully public, but rather to create an informal “whisper network” whereby women could warn one another of upsetting or damaging male behaviour. It did also come with a disclaimer  advising women to take the list with a “grain of salt” since it was a “collection of misconduct allegations and rumours”.

Inevitably, the spreadsheet was posted on Reddit, and with it the names of more than 70 men in the media industry alleged to be responsible for everything from violent assault to inappropriate remarks.

In its aftermath, a number of well-known male editors and journalists were investigated and resigned, were fired, or had new projects quietly abandoned.¹ While some accounts are corroborated by more than one person and some accusations may well have the individual’s behaviour bang to rights, others may not – that much was effectively admitted on the disclaimer. Everyone on the list, however, will have experienced severe personal and professional anxiety.

When the list’s creator, Moira Donegan, outed herself she seemed surprised by the consequences of her spreadsheet, which she described as “incredibly naive”. Though doubtless sincerely designed to tackle a widely unaddressed problem at quite another level, the modus operandi of the “Shitty Media Men” list would have set off multiple alarm bells in any trained lawyer because of:

• its potential for widespread dissemination;
• the anonymity of the accusers;
• its potential for abuse by any contributor with an undisclosed rivalry or grudge;
• its lumping-together of very serious accusations with milder, more nebulous ones;
• its “grain of salt” disclaimer while spreading crowdsourced information with potentially catastrophic consequences for the named individuals.

These risks are not confined to the internet. They have also influenced how institutions behave in an acutely publicity-conscious, reactive age. The disastrous Operation Midland, a 2014 investigation by police into allegations of a VIP paedophile ring at the heart of the British establishment, perfectly illustrates the dangers of institutions formulating speedy responses in response to the public mood.

It took place in a specific historical context: both the BBC and the police had been rocked by revelations of widespread abuse by Jimmy Savile. Both parties had been acutely eager to show themselves as being on the side of alleged victims.

Operation Midland was launched on the basis of lurid allegations made by a single witness known as “Nick”, who pointed the finger at numerous targets, including Edward Heath, Leon Brittan, Lord Bramall, Harvey Proctor and former heads of MI5 and MI6. Detective Superintendent Kenny McDonald, the lead officer, appealed in December 2014 for more witnesses by saying that the police believed what Nick was saying to be “credible and true”. Effectively, the age-old principle of “innocent until proven guilty” was thrown to the winds.

Her Majesty’s Inspector of Constabulary also said in 2014 that “the presumption that a victim should always be believed should be institutionalised” (a remark with potentially terrifying consequences for the wider criminal justice system). Eventually, “Nick” was deemed a fantasist and his evidence judged untrue – but by then the lives of the accused had been devastated²

A subsequent inquiry identified more than 40 areas of concern in how the operation had been conducted, with a major one being the police’s assertion that they must automatically believe victims. The essential principles of justice were not obvious even to senior police officers: they had to be pointed out. But nor do these seem relevant to much of today’s discussion around #MeToo. Many female voices – and those of some male supporters – frequently assert the importance of automatically believing a female complainant’s testimony over that of a man. 

There are, of course, reasons for that insistence: historically, women’s testimony has often been ignored. But the solution is to establish better channels for sympathetic listening and reassurance, whether in police stations or workplaces. It does not lie in immediately assuming the guilt of the accused: if so, the end result will be miscarriages of justice, which – when the pendulum of public opinion inevitably swings the other way – will set back the context in which genuine complaints are made.

The one place where this has long been understood is in our legal system itself. Barristers learn quickly that appearances can be misleading. The checks and balances in the British justice system, evolved over centuries, have long been respected worldwide. Yet that system itself is now in crisis, damaged by serial government cuts to legal aid. 

Members of the criminal bar have been pointing this out for some years now. So serious is their concern that barristers are currently boycotting new legal aid work to draw attention to it.

Trials are regularly postponed or are collapsing because of a failure to disclose key evidence on the part of the Crown Prosecution Service or the police (police numbers have been cut, and CPS funding has plummeted: the number of prosecutors has fallen by 30% since 2010, even as the workload has increased due to the challenges of combing through a mass of digital information for evidence). Court buildings are falling into disrepair.

Meanwhile, those on low incomes are rendered increasingly powerless before the forces of the state. Legal Aid cuts affect them disproportionately. ³ When individuals are accused of a crime they rely on the ‘criminal duty solicitor’, the independent legal footsoldier who turns up at police stations round the clock to represent their interests and remind them of their rights. But these are a dwindling breed, in line with their shrinking pay: 60% of them are now over 50, as younger lawyers seek alternative positions. The Law Society has warned that in five to ten years some areas may be without such solicitors entirely.

We live in a feverish and volatile era, in which there are clear warnings that we must not take any communal understanding of the principles of justice for granted. Each of us is individually less secure in relation to the government, the police or even public opinion than we might like to think, and people with few financial resources are even less secure than others.

The ultimate guarantor of fairness and individual liberty has long been our embattled justice system, and the consequences of its widespread failure are unthinkable. We had all better start speaking up for it, while there is still time.

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Jenny McCartney is a journalist, commentator and author of the novel The Ghost Factory.

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