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The presumption of innocence in an online age

The presumption of innocence is one of the basic principles of justice. It is summed up in article 6.2 of the European Convention of Human Rights: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

The principle states that the courts must prove the guilt of a criminal defendant. It is not for him to prove his innocence. The burden of proof rests with the prosecution.

This principle can be traced back to Roman times. The sixth century Digest of Justinian states: Ei incumbit probatio qui dicit, non qui negat "Proof lies on him who asserts, not on him who denies".

The development of the presumption of innocence in the modern era took place primarily in the common law jurisdictions of England and the United States. From there it took root in international human rights law in the 20th century.

The presumption of innocence, as a general principle, extends beyond the confines of the courts of law. The media should also respect a person’s right to their good name, and their right to be presumed innocent until they are found guilty by due process of law.

Justice, as it was administered prior to the advent of social media

In the UK, anyone publishing commentary on matters coming before the criminal courts, which are sub judice (Latin for "under judgment"), can potentially be held to be in contempt of court. That is the case whether you are a Twitter troll, or the editor of a newspaper, or someone commenting on Facebook. People close to a crime sometimes cannot resist publishing details and speculation, including the names of victims of sexual crimes, for example, who may have a right to anonymity. Such commentary can also breach the rights of children and young people mentioned in criminal cases, who also can have a right to anonymity.

If reporting on criminal proceedings, the media should carefully state that anyone on trial is “accused” and that what they are accused of is “alleged”. They should scrupulously follow and orders the courts make. Indeed, widespread coverage suggesting the guilt of a defendant, may enable them to argue that they cannot get a fair trial.

In the past, publication was done only by professional media organisations. Nowadays, anybody with Internet access can instantly publish material to the entire world. In just a few hours, online rumours can become repeated so often online that they are treated as fact by millions.

Last year, the Arkansas Supreme Court reversed a murder conviction because a juror who had used their mobile phone to use tweet about the trial during jury deliberations. In Texas, a juror was found guilty of contempt of court when he tried to "friend" the defendant on Facebook.

Similar concerns arose surrounding the Australian trial of the suspect for murder victim Jill Meagher. A vast amount of prejudicial online commentary about the accused prompted fears that the defendant would not get a fair trial. Victorian police pleaded with people not to post such comments, saying, “it is inappropriate to post speculation or comments about matters before the courts".

The Internet can act as an uncensored global rumour mill. Its role in diminishing the presumption of innocence cannot be ignored - either by courts, or by anyone involved in the publication of allegations. Even “trial by media” is far preferable to “trial by social media.” In the Internet age, the publication of mere allegations are more likely than ever to injure a person’s human right to be presumed innocent.

Online commentary can also frustrate the prosecution of the guilty. Thanks to social media, we are all publishers now. Yet most people do not know the rules involved in being a publisher, and the impact they can have on criminal justice . In much the same way as texting and driving has become socially unacceptable, so should making online commentary on matters coming before the criminal courts. So doing, can make the innocent seem guilty, without fair process - and it can help the guilty to escape punishment for their crimes.


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