[RESEARCH PAPER- 2nd edition] Power of Digital Platforms, Territories and Sovereignty, by Dominique Boullier
24 May 2022
[STUDENT PAPER] The Metaverse: Challenges and Regulatory Issues
12 June 2022

[STUDENT ESSAY] Are social media rendering criminal justice?

By Emma Joignant

The Digital, Governance and Sovereignty Chair will now publish, on a regular basis, the finest essays and papers written by Sciences Po students in the course of their studies.

This blogpost features the essay written by a second-year student at Sciences Po (Reims campus), as part of the course taught by Rachel Griffin and entitled ‘The Law & Politics of Social Media’.

Are social media rendering criminal justice?

“The hands-off attitude of platforms has altered the normal balance of free speech, often giving advantage to extreme voices over reasonable ones.” This is the disenchantment Roger McNamee, a former Facebook investor, experienced and explains in his book Zuckedpublished in 2019. 

One hears many criticisms about social media today, and most are sound. These online platforms create structured networks through which individuals from across the globe can interact with each other, building online communities that share and comment on information. Today, hundreds of millions of people use social media. They “provide the main access point to information and other content for most people on the internet today.” Since 2004 and the launch of Facebook and Twitter, still two of the most famous social media today, these platforms have gained attraction, users, and influence. In politics, they are both tools used to call-out and hold leaders responsible, and means of government. 

Social media work on sensational news, emotions, and cleavages. Thus, criminal justice is a recurrent topic on those platforms. The more they are emotional and morally condemnable, the more criminal affairs receive social media attention. Information about judicial investigations and on-going criminal trials is shared, and users comment and spread that information. As the audience gets wider, social media end up shaping public opinion. Naturally, cases are influenced. Juries and judges bear the pressure of a usually repressive public opinion. While key principles of justice are supposed to ensure its independence, fairness, and impartiality, and even though regulations impose limitations of free speech on social media, safeguarding the rights of the defence is sometimes a great challenge. 

Are social media rendering criminal justice today? Indeed, social media have become new courts of justice, but lack the necessary means to strike the right balance between competing rights. 

I. The new court of justice: social media 

Today, most people derive their news from social media. The news industry raises the alarm, not only because this means a smaller audience for traditional news sources, but because information now gets commented, and facts distorted. If social media allows broad access to information, it is also a threat to information. Indeed, social media have the power to shape public opinion, sometimes interfering with the criminal justice system. 

A. The construction of public opinion through social media 

Social media are certainly one of the greatest disruptions of our era. They allow for unprecedented exchanges of information and wider communication. They promote freedom of expression and are the most efficient means to achieving it today. They are omnipotent in our daily lives and have become intrinsic to the functioning of our institutions. This is not without downsides. Social media are shaping public opinion. As people are getting their information from social media, the news audience has transformed from being merely anonymous and a consumer of the traditional press message to being an active participant in the formation of that message. One issue is that users engage more with extreme, memorable and highly emotional or provocative content. 

As social media shape public opinion, they also influence the regalian missions of the state and the conduct of institutions. Social media helped turn the traditional social hierarchy upside down, as government institutions became less powerful and people more powerful. It is especially frightening for the justice system. Studies suggest that crime content represents between 10% and 30% of the average content in all news sources, and that social networks are the first channel for these news. Users actively engage with crime posts. In emotional cases, “the media momentum and the volume of comments shape public opinion about the person’s guilt or innocence, before the ruling judge condemns them”. 

The issue, according to Eric Dupond-Moretti, is that public opinion is too variable. In the Outreau affair, public opinion first presented the accused as guilty of the worst crime possible: child rape. Therefore, the lawyers of the accused were also attacked by the public opinion. However, when the same accused was then presented as innocent, the same lawyers were now depicted through social media as heroes. Public opinion is not reliable, especially not in a criminal case in which only the parties at trial and judges hold the detailed but crucial information about the case. As Dupond-Moretti puts it, it is very frightening to see that individuals think they are legitimate to spread a real judgment about an on-going case. 

Social media shape public opinion, especially on controversial and topical issues. Information about criminal cases receives great interest on social media, but online mobilisation of the public in an ongoing criminal case poses great challenges to the justice system. As information spreads and comments burst, remaining impartial becomes more and more complicated. 

B. The influence of social media in the justice system 

Public opinion on criminal cases can be very one-sided. When society is intimately convinced of an accused’s guilt and shares this personal judgment on social media, it is not freedom of expression, it is one of the greatest obstacles to the functioning of justice. Shaping public opinion, social media influence justice not only by violating the presumption of innocence but also by influencing the conviction

First, when social media depict the accused as “guilty”, directly or through suggestive comments, the presumption of innocence is shredded into pieces. Defence lawyers constantly fight to preserve the presumption of innocence, and they are right to do so. As Dupond-Moretti experienced, in criminal cases “compassion takes over and the rights of the defence are relegated to the rank of accessories”. Coupled with the fact that social media are built on favouring negative, biased, and extreme content, it is no surprise that measured reactions are almost never witnessed when pending criminal cases are discussed on those networks. For example, the social media trend “#BalanceTonPorcs”, initiated by Sandra Muller when she accused Eric Brion of sexual assault, highlights how social media completely negate the presumption of innocence. They label people accused as sexual assaulters before any judicial decision. 

A logical consequence is that public opinion also pushes for hard punishment, “as if to hit hard means the remission of crimes”. To pursue the example of the case of Sandra Muller, her revelations were considered “defamatory” by the justice system. However, users on Twitter, where the scandal erupted, not only sided with Sandra Muller but called out Eric Brion for the alleged accusations. Furthermore, the online mobilisation in support of Sandra Muller pushed the court of appeals not to hold the woman guilty of defamation, even though a previous decision had concluded the other way. Appeals are essential and necessary, but one should doubt their 

effectiveness when they are taken given the public opinion pressure. Marie Burguburu, lawyer of Mr Brion, said after this decision that she was worried about the freedom that this decision gives: freedom to say anything and everything on social networks and not be held accountable. 

The justice system is supposed to be independent enough to resist pressure, but it cracks under the battering of public opinion. Social media impose a new system, one in which instantaneity, manichaeism, the spectacular, the emotional and sometimes worse, private vengeance, thrive. Control of information is thus necessary, but striking the right balance between freedom of expression and the rights of the defence is a challenge. 

II. Striking the right balance: Justice v. social media 

Social media publicise the freedom of expression they guarantee. They always come back to this point to counter national or regional legislation. However, legislation does frame the extent to which social media can share information relating to criminal affairs. Necessary protection of the justice system exists, but some call for more regulation of social media, to prevent violations of the rights of the defence and ensure more efficiency of the justice system. 

A. The legislative framework protecting freedom of expression online 

Balancing rights is a difficult task for the legislator. Restricting social media necessarily means restricting freedom of expression, the right to inform and to be informed. Those rights are protected at the international, European, and national levels, according respectively to Article 19 of the Universal Declaration of Human Rights, Article 11.1 of the European Union Charter of Fundamental Rights (ECHR) and, for France, Articles 10 and 11 of the Declaration of the Rights of Man and of the Citizen (DDHC). It is very interesting also to note that the French Constitutional Council in 2009 extended the freedom of expression to online communications, including on social media given “the current state of the means of communication and given the generalised development of public online communication services and the importance of the latter for the participation in democracy and the expression of ideas and opinions”. Platforms claim breaches of these rights when national or regional legislation, mostly European legislation, imposes more limitations on their platforms. 

However, such limitations are essential for many reasons: to prevent hate speech, terrorism, child abuse, and to ensure the correct functioning of the justice system. Therefore, national and regional frameworks do also provide for restrictions of freedom of expression. In Europe, Article 10.2 of the ECHR allows for restrictions of this right if doing so is necessary to protect democracy, and especially to achieve other goals laid out in Article 10.3, among which are “the protection of the reputation or rights of others, the prevention of the disclosure of information received in confidence, the maintenance of the authority and impartiality of the judiciary.” In France, the Loi sur la liberté de la presse of 1881 protects and limits the right to free speech. It does so not only for the press but also for “public speech including speech on social media, as its Article 23 states that that, to be within the scope of the law, speech must have been made public by one of the means of publication”, and social media is one of those means. 

Both legal and European legal frameworks provide for limitations of freedom of expression, but a recurrent criticism is that the law does not provide the sufficient means to enforce such limitations. Restrictions are most of the time theoretical. It is up to social media to police content on their own platforms. The incentive they have is to not receive bad press for hosting harmful content. Nonetheless, regarding posts about ongoing criminal trials, many users do not see the problem with such posts. People may be appalled by discriminatory content and require platforms to take them down, but few understand the dangers of commenting on judicial cases. 

Freedom of expression is essential and social media make it a key component of their business. However, unlimited freedom can lead to violations of the rights of the defence. More limitations to free speech online should be considered.

B. Reforming social media to better protect the rights of the defence 

On the other side of the equation, we have the need to protect and enforce the rights of the defence. They are protected at the EU level in Article 48 of the ECHR and have constitutional value in France since they are integrated in the DDHC, but they are also safeguarded notably in the penal code. 

Article 7 of the DDHC, and the premise of the penal code since 2000, protect the presumption of innocence principle according to which “the accused is innocent until proven guilty according to the law. Accordingly, they must be treated as innocent people, not convicted defendants, until the court rules that they must be indicted by a decisive and final judgment”. Because individuals circulate information on the accused and comment directly on them, the accused is portrayed at first as guilty. In a way, society convicts them, before the justice system has been able to do its job. 

One should always remember that not every socially condemned person is necessarily legally guilty.” The Merah affair resonated in France like any other because it dealt with terrorism. Abdelkader Merah’s attorney declared that, from the start of the trial because of the media and the constant and immediate use of social media to comment on anything said at trial, public opinion condemned his client of the worst charges against him. However, if he was found guilty of “criminal conspiracy”, he was not incriminated for “conspiracy to murder linked to terrorism”, though society depicted him as a terrorist. 

Social media are also a threat to the principle of contradiction and the burden of proof. The principle is that it is up to the prosecution to demonstrate the guilt of the accused. However, as a fierce public opinion sometimes depicts the accused as guilty, one witnesses a shift in the burden of proof. It is now up to the accused to demonstrate his innocence, as was the case in the Merah affair. This is dangerous. Social media should not be means to defy the justice system, anywhere. More protection of the rights of the accused needs to be guaranteed online. First, it is up to judges to make sure they distance themselves from public opinion and social pressure. They have always needed to take distance, but the growing influence of social media makes it harder for them to remain impartial. Then, one should look at possible regulations of social media, ones that would not hamper freedom of expression too much, but at the same time protect people on trial from being judged beforehand. Systematically displaying a message saying “this person is accused but presumed innocent until proven otherwise by a court of law” on posts relating to ongoing cases could be a small but quite efficient solution, which does not interfere unnecessarily with free speech. 

Emma Joignant is a Bachelor student at Sciences Po (Reims campus ). Emma is interested in the upsides and flaws of the legal system. Aspiring to pursue a legal career, her interest in law has led her to discuss the influence of social media on criminal justice. 

Established in 2010, the Reims campus offers two distinct programmes: one focussing on transatlantic relations between North America and Europe, and the other oriented towards Africa, examining the continent’s relations with Europe.