The Power of the Media - Essay Example

?"The law of media publi contempt is obviously broken. The problem is that there is no better system that might reasonably supplant it. Like democracy, it’s an awful system but it’s the best we have available to us". Discuss. Introduction The power of the media is hard to quantify and in this day and age, when advances in communications technology have made information travel faster and more pervasive, this power is more intimidating. This becomes problematic in areas where objectivity is of utmost necessity such as in court proceedings that determine the guilt of an accused. In the UK jurisdiction, this problem is solved through the passing of the Contempt of Court Act 1987 where individuals or entities are proscribed from publishing materials that tend to influence the jury and the courts during the pendency of proceedings. A strict implementation of prohibition laws such as the 1987 Act tend to clash, however, with certain basic human rights such as freedom of the press and the right to information. On top of this, advances in communication technology and the advent of globalisation make it doubly hard for authorities to fully impose sanctions on recalcitrant press and bloggers. Nonetheless, it would be wrong to say that the UK law on media publicity contempt is totally broken and that there is nothing that can be done about it. On the contrary, the UK media publicity contempt system has proven to be comparatively effective than those of other jurisdictions and the present state of the law presents a more mature approach in balancing between freedoms and obligations. State of the Law Media Publicity Contempt English media publicity contempt is governed primarily by the Contempt of Court Act 1981. It is a strict liability rule that does not take into consideration intent as an element in finding a verdict of guilt or absence of it and applies to publications, which include speech, writing and all other form of communications, addressed to the public. The strict liability rule applies only in the following cases: when publications create substantial risk in the obstruction or prejudice of judicial proceedings, and; the proceedings are active, as defined in Schedule 1 of said law. Schedule 1 describes an active proceeding, whether criminal or appellate, as the period from the time of a proceeding’s initial steps to the time of its conclusion, with initial steps including the arrest of the accused without warrant, the issuance of a warrant of arrest, the issuance of summons, the service of indictment or similar documents or oral charge. The conclusion stage of a proceeding includes the acquittal or any other verdict, which ends the proceeding or the discontinuance of the proceeding or by operation of law.1 The British law on media publicity contempt arose out of the 1820 case of R v Clement 2 where the Observer newspaper was fined ?500 for featuring a series of report on an ongoing trial. The case involved the trials of Cato Street conspirators who were then charged of treason for conspiring to kill members of the British Cabinet. The Observer was faithfully detailing the trials to the chagrin of the Government who was trying to conceal its substantive and procedural lapses. The newspaper’s editor was charged and tried in absentia for contempt for disregarding a court gag order. His subsequent appeal, which was also heard by almost the same judges who decided against him in the lower court contrary to the principle of natural justice, was dismissed.3 Since 1931, however, a “scandalising the court” case, or a case where the charge involves bringing down the authority of the judge or court through an act or publication, has not been successful in this jurisdiction.4 The 1981 Act came about as a result of the European Court of Human Rights (ECHR) decision in the case of The Sunday Times v United Kingdom5 where the newspaper featured a series of reports about the drug thalidomide that caused women to give birth to deformed babies during the pendency of the negotiations of settlement between affected families and the distillers. The Attorney-General successfully filed an injunction against the newspaper, but The Sunday Times invoked Article 10 of the European Convention on Human Rights on freedom of expression and brought an application to the Commission. The Commission referred the case to the ECHR, which found a breach of Article 10 on the ground that the interference made by the newspaper was not outweighed by a “pressing social need” considering that the right of the public to know about the thalidomide disaster was weightier than the threat the publication had to judicial authority.6 Analysis of the Media Publicity Contempt Law Largely influenced by the ECHR decision in The Sunday Times case, the 1981 Act was deemed a shift from a public interest perspective to one that leans more towards freedom of expression. The law does not lay down in specifics what the prohibited acts are, but rather warns in broad terms against acts that may constitute “substantial risks” leaving to the courts the determination of what exactly constitute them. Moreover, the strict liability provision of the 1987 Act was observed to be “honoured more in breach than the observance” according to the leading UK jurists on contempt law High Court Judge Sir David Eady and academic and barrister Professor ATH Smith. This observation stemmed from incidents where prejudicial content after arrest and before charge was put up with by the authorities on the principle of the fade factor of “substantial risk.” In one case, for example, the Home Secretary and the Scotland Yard officers took it upon themselves to hold a press conference after an arrest was made on suspected terrorists to explain to the public the nature of the arrest and the charges that underpin it. Even the Attorney-General, in a speech in 2007, acknowledged the need for greater openness especially in terrorism cases where the period of legal detention is longer to balance the need to bring the suspect to justice and the right of the people to information.7 The shift towards freedom of expression and away from public interest is compounded by the advent of globalisation and the advances in the internet technology. Globalisation and internet has made its enforcement difficult considering that the UK authorities will be limited by jurisdictional issues in going after violators outside of its ambit. Thus, whether the law on media publicity contempt is made stricter there will always be the problem posed by foreign journalists and bloggers from other jurisdictions whose write ups can easily reach the UK and be read by individuals upon whose hands the responsibility of rendering objective decisions are placed. All of these, however, do not imply that the media publicity contempt law in the UK is broken. As a matter of fact, UK media publicity contempt law is comparatively stricter and more effective than those in other jurisdiction such as the United States, for example, where the courts’ contempt power in media publicity cases is very limited. This limitation was manifested in a number of high-profile cases such as the OJ Simpson, Michael Jackson and Phil Spector cases. The US media had evidently feasted on these cases and no contempt cases arose out of them. In some cases, some US network channel even invited their viewers to take part in voting for either the innocence or the guilt of high-profile individuals undergoing trials, with a channel and website devoted to just airing ongoing trials and allowing their viewers access to evidence and vote as the 13th juror.8 The legal system’s present attitude towards media publicity is justified by the UK’s adherence to human rights as embodied in the ECHR Act and the integration of its provisions in the domestic jurisdiction through the Human Rights Act of 1998. A blanket proscription against media publication is not consistent with the idea of a free and open society. It is upon the hands of the courts to balance the substantial rights of the accused and the right of the public to know. Time and again, the courts have shown that they can rise to the occasion as what happened in the case of R v McCann,9 where no less than the Secretary of State and Lord Denning gave interviews immediately after the jury retired for deliberation suggesting guilt on the part of the alleged Turkish terrorists. The accused were nevertheless convicted but the Court of Appeal overturned the decision on the ground of prejudicial influence.10 The perceived reluctance on the part of the authorities to file cases against the media on the ground of media publicity contempt11 should be seen as the maturing of the English laws and the trust reposed on the individuals, such as the members of the jury and judges in courts, to dispose of their duties responsibly and objectively. Conclusion The present age is dominated by the media – from cable television to the internet, almost resulting in a blurring of borders. As much good as this set-up has resulted to people all over the world, it has also posed some serious problems to legal authorities in various countries. For one, authorities have to contend with serious challenge to laws by people to which it does not have jurisdiction. In the UK, the media is prohibited from publishing materials that tend to pose substantial risk to the independence and objectivity of jurors and the courts. There is a perception that not only are the authorities reluctant to elevate media publicity cases to courts, but the growing invasion of the internet in every home are posing setback to the law on media publicity contempt. Nonetheless, the UK media publicity contempt law cannot be really described as broken considering that it is more stringent and more effective than the laws of other jurisdictions. Moreover, despite the seeming reluctance by the authorities in prosecuting media publicity contempt cases, the courts have risen to the occasion when genuine need for the implementation of the law is needed. References: Contempt of Court Act 1981. Crook T. Comparative Media Law and Ethics (Taylor & Francis 2010). Erastus-Obilo B, Reason Curve, Jury Competence, and the English Criminal Justice System: The Case for a 21st Century Approach (Universal-Publishers 2009). Pearson M. Scandalising Media Freedom: Resurrection of an Ancient Contempt (April 2008), accessed on 6 April 2011. Phillips G, ‘Contempt of Court: A Matter of Legal Judgment’ (guardian.co.uk 10 January 2011) < http://www.guardian.co.uk/media/2011/jan/10/contempt-of-court> accessed on 7 April 2011. R v Clement CKB [1821]. R v McCann 92 Crim App 239 [Eng CA 1991]. The Sunday Times v United Kingdom(Series A No 30), European Court of Human Rights (1979-80)2 EHRR 245, 26 April 1979. Read More