Amidst the debate on whether there is a clash between an individual’s right to free and fair trial and the right of the news media to inform the people about democratic processes that necessarily include the criminal and civil justice system, there might be a lesson that we can learn from the news media in Arab countries. A curious phenomenon of court reporting in the United Arab Emirates, for example, is the absence of any names when the courts pronounce a verdict.
The stories use initials of those held guilty, those acquitted, and even witnesses. One’s initial thought at encountering such stories is that there is no reason for the newspapers to be shy of naming those who have been held guilty by the judiciary. And indeed there is something more than problematic in this practice. Also, in some of these countries the names of those arrested, even their photographs, are often regularly published, especially when they are expatriates. So there is more at work here than protection of privacy and racism and discrimination might be in tandem, too.
But let us take it a step at a time. Let us begin with arrests. It is common knowledge among those familiar with the police that arrests, even in high profile cases, are often built on evidence that are doubtful and flimsy. Keeping aside the normative idea that a person is innocent till proven guilty, it may be said without doubt that arrests are scarcely an indication of guilt. The way in which the media, especially television where it is not the journalist but the medium itself that is intrusive, decide to portray arrests becomes problematic. Whether it is the people hooded with towels, black cloth, or without anything to cover them, the spectacle of their arrests or production in court besmirches them in a way that we would not wish upon our closest enemies. The fact that such people are often from the economically and socially depressed classes gives almost an automatic right for the media to use their names, their faces, and to display their identities. Even without a jury trial where the impact of the media on jury selection can be easily documented, there is no doubt that without court procedures and any conviction, people are held guilty among the public.
A distinction may be drawn upon public and private figures where those who have chosen to dance before the public eye, and have become public can invite a closer scrutiny of the media. But those who do not, and this would include the accused, arrested, and their families, could be treated with dignity and respect till such time that the judicial process is over. To begin with it might be a good idea for the media to draw up a code of conduct when dealing with the justice system. It should be a code of conduct and not a part of any justiciable code that journalists would be required to follow by law. Though balancing the right to information with that of free and fair trial, it is not improbable that the courts may come down on the side of an individual’s right to fair trial (this was done by the local court in Nebraska in 1976, which was appealed in the Nebraska Press Association v. Stuart case where the US Supreme Court opined that prior restraint went against First Amendment rights, giving the press a landmark victory; it was a case of prior restraint and the judge had decided that pre-trial publicity would be inimical to fair trial) and decide to introduce restrictions or gag orders that could make the judicial process difficult to monitor, which in turn would hinder the watchdog function of the press that the right to information ensures.
But a code of conduct that draws a few lessons from the Arab countries and is in consonance with the legal balancing of rights could be a good idea. At least six guiding precepts can be agreed upon. 1) Photographs of those arrested or accused should not be used. This should be extended to family members unless they choose to speak to the press. This should hold true for all irrespective of the person’s age. 2) The names of those who are accused or arrested should be used only by their initials; here is the lesson from the Arab world. This would give the details of the arrest or accusations or charges put forth by the police without any publication of identity by the media. 3) If the police or investigating agency wants to put the name or photograph of any person whom they are seeking in the public domain, let them do so using their websites and advertisements in the newspapers and channels. This shall be deemed as a method of seeking information rather than providing news by the media. 4) The process of investigation by the security agencies, the judicial process should have the constant and incisive scrutiny of the media without an almost prurient interest in the personality of the accused. 5) Once the law courts have pronounced a verdict, the names and photographs of those convicted can be used, while the identity of those acquitted should not be. 6) Those who qualify the public person test, (the readers/viewers know them prior to the arrest, but they do not know the readers/viewers) need to be treated differently than those who are private persons; while this distinction has greater import in defamation and libel cases, it does have a bearing when they are part of judicial proceedings.
I recognize that such an approach suggests that the courts are largely infallible in the way that they judge the cases and hand out the punishment. Hence, those judged guilty can then be held under public gaze and those acquitted can go about their business without getting any direct attention of the press, and the youngest cub reporter knows the ills of a system that lets off those who have power and pelf. And that is precisely why the process of justice or police investigations should be closely followed without naming the people involved. If there is a miscarriage of justice or it is likely to happen because of the state machinery being corrupt and tardy, then the right to information triumphs over the right of the individual. As Justice Oliver Wendell Holmes observed in Cowley v. Pulsifer, “It is desirable that the trial of [civil] causes should take place under the public eye, … not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.” But the thrusting of cameras into homes, making tawdry soaps out of court cases, and the putting out of photographs and names on the basis of what the police tell us is to deny the fair trial that is their right. Above all the decision in news rooms should always be based on the individual’s right to a fair trial triumphing over the collective’s right to information.
