Why Trial by Social Media Is Toxic and Unjust

Irresponsible behavior and the irreversible consequences

We live in a world where social media has given a new meaning to most traditional ways of doing things. You don’t need to land a movie or a T.V. show to be a celebrity. You don’t need to struggle to find a platform to be an influencer. There is no dearth of ways to express your view to the whole world.

Everything is a click away, as long as you have access to the world wide web.

A flip side to this is the misuse of that power and privilege in matters of extreme sensitivity such as the judicial system. Social media and the new breed of “armchair critics” who have an opinion on everything under the sun have taken it upon them to introduce a new system of justice — trial by social media.

We have seemed to come full circle in moving from the barbaric ways of “trial by combat” to a more systematic judicial system across societies as humanity evolved, to the latest form of “trial by social media” which has more in common with the barbaric ways than it does with what you would expect of a refined and modern society.

Most of the fundamentals of a social media trial are in direct conflict with some of the core fundamentals of a fair judicial process. Let me elaborate on some.

#1 — Guilty Until Proven Innocent

A fundamental that is at the center of most judicial systems is the “presumption of innocence”. Definition provided by Nolo’s Plain-English Law Dictionary:

One of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty. In other words, the prosecution must prove, beyond a reasonable doubt, each essential element of the crime charged.

This clearly puts the burden of proof on the prosecution i.e. the party alleging that the defendant is guilty of a certain crime.

However, in the unique world of social media, the moment an allegation is made, there is little value of “proof” as a word once said cannot be taken back once in the public domain.

Some examples of such harmful claims include the following:

• False claims against celebrities as part of the #MeToo movement — Among the many anonymous or specific claims of sexual harassment against celebrities, is the recent claim against Justin Beiber. An Opinion piece by Maureen Callahan in the NY Post summarizes the incidence as follows :

On Saturday night, someone identifying themselves only as Danielle — and think about it, “Danielle” could be a 40-year-old man or a rival pop star or a bot — took to Twitter with a claim that Bieber sexually assaulted her on March 9, 2014, at the Four Seasons in Austin, Texas.

Within 48 hours, Bieber brought the receipts, literally.

“Rumors are rumors,” Bieber tweeted, “but sexual abuse is something I don’t take lightly. I wanted to speak out right away, but out of respect to so many victims who deal with these issues daily I wanted to make sure I gathered the facts before I made any statement.”

Justin Beiber has since filed a massive countersuit for the potentially false claims. However, in today’s world, the reputational damage already caused by such claims is practically irreversible. And yet, unlike the conventional judicial system, it is all up to the alleged offender to claim their innocence despite potentially being completely innocent.

• Misinterpretation and Misrepresentation — Another issue with social media claims is the veracity of them. It is extremely easy for someone to misinterpret or misrepresent someone’s words and intentions and create a situation out of nothing. In a recent incident involving former Indian sporting legend Sunil Gavaskar, as well as Indian filmstar Anushka Sharma, who is also the wife of India’s current cricket team captain Virat Kohli, something similar took place. Some comments made by 71-year old Gavaskar were misinterpreted by Anushka and taken as disrespectful and inappropriate because they dragged her into her husband’s professional performance and “blamed” her for the same. She expressed her disapproval over a long social media post directed at Gavaskar and social media critics took to bashing the veteran cricketer. Sunil Gavaskar had to later clarify and assert that his comments had been completely misquoted and misinterpreted and it was clear that he had no such intention. Yet the damage to the image of a veteran highly respected cricketer and the fact that he had to clarify himself on national TV is unacceptable.

#2 — Irreversible Reputational and Psychological Damage

Irrespective of the final outcome of a trial by social media or allegations made on social media, the reputational and psychological damage it leaves on the accused is irreversible and of significant magnitude.

The mental stress that comes with coping with false claims against you and the toll that it takes on a reputation that one has built over years and decades is often too much to handle.

The death of TV star Caroline Flack is one such recent case of social media cruelty. The BBC story reporting her death and the reasons behind it sums up the incident as below largely attributing her suicide to the trial she faced by media and social media even while she claimed innocence over her alleged assault of her boyfriend.

The ex-Love Island and X Factor host was found dead at her home in Stoke Newington, London, on 15 February. The day before her death Ms Flack had found out she would be prosecuted and feared press intrusion, the inquest at Poplar Coroner’s Court heard. Coroner Mary Hassell ruled her death was suicide. Ms Hassell said Ms Flack, 40, had killed herself after an “exacerbation and fluctuation” of ill health and distress. The inquest heard sections of the media had been “hounding” the presenter over the alleged assault of Lewis Burton, which she denied. Ms Flack’s mental health had deteriorated following her arrest, according to the coroner.

Can we justify the loss of life as a result of breaking down in the face of media and social media trial, even when the signs of such potential occurrences are quite obvious and apparent?

#3 — Defamation — The Perfect “He Said, She Said” Scenario

Given any lack of formal or legal liability in most cases around social media claims and comments, it is a classic case of “he said, she said” and there is hardly any verification of claims made on social media.

What makes it more challenging is that the natural sympathy of the masses goes with the “seemingly grieving” party even if the claims are based on lies.

This gives people the opportunity to misuse public sympathy towards a sensitive matter to their advantage and use social media as a publicity stunt or a means of making quick money over false allegations.

However, there is a big difference between freedom of speech and libel.

Legal systems have defamation laws to protect people from slander and libel, but social media doesn't really wait for the legal system to take its course.

The umbrella term “defamation” includes both libel and slander. Defamation is a statement that may harm someone’s reputation. If it is written down, it’s called “libel” whereas if it’s spoken, it’s called “slander.”

Defamation law attempts to balance the freedom of speech and open exchange of ideas without giving someone permission to run around spreading lies about another that may harm his or her reputation, ability to earn a living, etc. Note that the expression of an opinion can never be actionable as defamation; statements must be presented as fact to be considered defamation.

#4 — The Cowardly Shield of Anonymity

The internet and social media in general provide the perfect shield of anonymity for false claims and allegations.

It only takes a phone and an internet connection (likely free) for someone to create an anonymous account on a social media platform to put their views and opinions out there to millions of users around the world.

The onus of checking of facts behind any of these claims or opinions, unfortunately, lies with nobody. Unlike the real world, where you risk your reputation and legal implications in making any false claims, anonymity is very easily achieved in the virtual world and hence gives an undue advantage to the wrongdoers and troublemakers.

Even the laws and regulations around behavior on the internet are relatively new and harder to implement in the real world. There are a variety of challenges associated with the implementation of any cybercrime laws, ranging from jurisdiction, digital evidence, international cooperation, the liability of internet providers, and many more.

#5 — Biased and Million-Strong Jury

The very basis of a diverse and appropriate jury is getting an impartial outcome. Nolo’s legal encyclopedia describes the jury-selection process as follows:

The right to trial by jury in criminal cases is guaranteed by the Sixth Amendment to the U.S. Constitution, as well as the laws of every state. (See The Right to Trial by Jury.) Lawyers and judges select juries by a process known as “voir dire,” which is Latin for “to speak the truth.” In voir dire, the judge and attorneys for both sides ask potential jurors questions to determine if they are competent and suitable to serve in the case.

However in the case of social media, the jury comprises of the millions of users of social media who each have a pseudo “right” to give their own verdict from the comfort of their couches and the luxury of an internet connection.

It is very likely that the people who will express an opinion on any issue on the internet will do so when they have strong views for or against something. This naturally creates polarized and often extreme opinions and the numbers behind each view run in the millions.

However, unlike a real jury or judge, there is no “fair trial” involved where evidence from both parties is duly presented, considered, and pondered upon before reaching a fair verdict via consensus.

The biggest risk of an unfair judgment comes from the fact that emotionally charged and colored decisions are often error-prone and lead to the wrongful conviction of innocent people, with no scope for rectification.

While there is a significant benefit in having an open platform for people to express and voice their views and opinions on issues that matter, there is also a major responsibility that comes with it. As the impact of these opinions on the real-world increases, there is also a need to regulate and enhance accountability and liability for the collateral damage that can be caused in the process.