Thought leadership from our experts

Trial by (and for the) media

“Trial by the media”. An expression used to describe the impact of media coverage on a person's reputation, at least, as such coverage can and often does create a generalised perception of guilt or innocence before or after a court verdict, and sometimes in spite of it. I think it is clear that this is quite often the case, and it happens in Portugal as in many other places. In fact, it is increasingly so, as more proceedings, especially those related to certain cases (depending on those involved and/or the issues), have repercussions and cause media coverage, sometimes in a very intense way. It exists and it is, in fact, inevitable. Some say these are the costs of a more and more open society. It is mainly true, but it is good to bear in mind that when this happens we should not pretend that the news (when not the “spectacle”) is neutral, because it is not, especially in its effects. And, by saying this, I do not intend to say that it should not exist, it’s quite the opposite. What I intend is, on the one hand, to underline that we should be well aware that it is exactly like that and, on the other hand, that this requires special care in the making and spreading of news, as well as in the reception of the news and in the effects that one can withdraw from it. Ignoring or pretending that there are no consequences can be worse than the actual consequences. For those who like books, The Lost Honour of Katharina Blum is a good reading and “food for thought”. For those who prefer films, see, for example, The Man Who Shot Liberty Valance. For those who prefer real life, look around you; stop, listen and look....

But there is another question, as important or even more important, and which has been pointed out and studied, albeit still timidly. There is another important and delicate aspect of the phenomenon of the media coverage of cases, related to the possible influence of that coverage on the decisions and procedural behaviours of the Courts and other formal instances of control, namely the Public Prosecutor's Office and the Police; and also of Lawyers, and others. In fact, some say that such influence may exist. The question makes perfect sense given the human nature of all judicial actors. The question exists, it must be said, and it has to be addressed. I believe that there are cases where this influence does exist, in various ways, both spoken or unspoken. To state otherwise can only be justified either by distraction, inattention or ignorance, or otherwise by hypocrisy, fear or interest.

This influence can and sometimes does exist, and it is in the nature of things. And pretending it doesn't exist doesn't do us any good. But the subject is still not frequently approached, and it is even less developed or discussed, as if to do so would touch a taboo, shake a dogma or offend sensibilities. However, to say that the issue exists, and to look at it, does not stem from - nor does it imply - any processes of intent, judgements of minority or attributions of generic bad faith about judicial actors. Quite the contrary. It has the meaning - and purpose - of contributing towards greater and better legitimisation through procedure and towards (with a serious separation between wheat and chaff) strengthening the health of the Rule of Law, including the unavoidable role played by the justice system.

And it is important that, after recognising the issue, we try to develop and deepen the means to combat it or, at least, to contain it and keep it within acceptable limits, and these means are essentially three: (i) freeing judicial actors from the fear of the reading that their acts may have, trying to prevent them from acting, not according to what they are entitled to and think is right, but according to what they perceive will be seen and received by the “social feeling” as right (which is given by the media and/or social networks, essentially); (ii) substantiation, but clear, strenuous, courageous and perceptible about the reasons for their acts; and (iii) scrutiny of everyone's acts, but serious scrutiny, with work, with balance, without states of mind, without the seductive temptation of the headlines and the easy joke, with an attempt to overcome pre-conceptions, and also bearing in mind that scrutiny influences or may influence what is scrutinised, and may even when done in a certain way lead to the temptation to decide for the media. Which is no longer justice in the name of the people, but for the people. Two very different things.