In many countries it’s quite common, and legal, to include some very specific information about suspects in crime reporting. Newspapers, television shows and websites publish the names, photographs and even addresses of people who are arrested on suspicion of a crime, even if it later turns out that these people were completely innocent. By that time, of course, their reputation, privacy, livelihood, social relationships and perhaps even family life may have been destroyed beyond repair. One can argue that this practice is unjust and an abuse of freedom of speech, even in the case of people who, after the trial is over, are deemed to have been guilty rather than merely a suspect. Criminal punishment should arguably not include such far-reaching consequences. A fortiori, the harm done by such publications to people who were wrongfully suspected is even more unjust because it amounts to punishment before conviction.
That is why some people – including myself – are in favor of limited restrictions on this type of news reporting, even if it means limiting journalists’ freedom of speech. The names, addresses or photographs of suspected criminals should not be made public until after a conviction, and in some cases not even then (there’s the example of the Bulger murder). That is obviously a limitation of the freedom of speech of the journalists engaged in such reporting, but a justified limitation (read the whole series of blog posts for other examples). Before I argue why it is justified, let me reiterate my strong support for free speech in general and open justice in particular. Justice must not only be done but also seen to be done. Open trials have many advantages and can help to avoid miscarriages of justice. They are necessary in order to avoid witness or expert fraud, they make it possible for new evidence to show up and they make it more likely that society accepts the outcome and retains confidence in the justice system as a whole. Evidently, the media play an important role in making trials truly public and open, and hence they should have access and freedom of speech. (Read more about why an open trial means a fair trial here).
Now, why do I think this access and speech shouldn’t necessarily or always include the identity of the suspects? Because there is, in most cases, no real need for that. It’s perfectly possible for the media to play their part in the openness of trials and therefore the fairness of trials without disclosing the identity of the suspects. Some exceptions may be necessary, for instance when a successful prosecution depends on “crowd sourcing” (e.g. to find out the whereabouts of a suspect), but those should remain exceptions. The default should be anonymity. Most of the time, when the media disclose the identity of a suspect, it’s not in order to assist the prosecution, but to pander to the most basic instincts of the public: hate and voyeurism. Unfortunately, newspapers sell and websites are visited when they have stories about gruesome crimes supposedly committed by someone belonging to a minority already covered in prejudice and when these stories contain all the fine detail, including names, places and pictures.
Obviously, amoral commercial exploitation of basic instincts isn’t a sufficient reason to limit freedom of speech (and neither is it a reason to defend it), but we do have other reasons. Why should the rights of one – the media in this case – automatically trump the rights of another – the privacy of suspects, their livelihood etc.? Rights need to be balanced against each other, and when there’s no strong reason to uphold one right – as is the case here (reporting can be done perfectly well without identification) – it should yield in order to protect the other right.
Some would say that the role of the media in the openness of trials isn’t the only possible argument in favor of disclosing identities. Another argument goes as follows: if the media can’t disclose enough details, their stories will lose human interest and become vague and abstract treatises. No one wants to read that, and consequently the media will stop writing about the Courts altogether, and the social debate about criminal justice will suffer. I think that argument is mistaken. You can write real human interest stories about real people without printing the names, addresses and photographs of possible suspects.
Others would say that I exaggerate: the public is quite capable of distinguishing between suspects and convicted criminals. Maybe, but does anyone honestly think that excessively invasive crime reporting never harms suspects or never imposes disporportionate harm on convicted criminals? I think that would be an extremely naive position to take.
Now, as I said, there have to be exceptions: sometimes a successful prosecution requires the disclosure of a suspect. I can also be argued that people who hold a prominent position in society should also, in certain cases, not benefit from anonymity during prosecution. But that should be the exception and only in cases where there is some public good involved in knowing the suspect. We should not let hatred, voyeurism, Schadenfreude or the commercial interests feeding on these instincts, ruin people’s lives.
More posts in this series are here.
- Canada’s Supreme Court upholds right of defendants to seek ban on reporting of proceedings (foxnews.com)
- Anonymity plan for rape accused (news.bbc.co.uk)
- Supreme Court upholds blanket publication ban for bail hearings (theglobeandmail.com)