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Social media and crime

By Legal Eagle

Here in Melbourne we’ve been absolutely devastated by the disappearance of Jill Meagher. Ms Meagher was a 29-year-old Irishwoman who worked at the ABC. Last Friday, she went missing after going to drinks with colleagues in Sydney Road, Brunswick. A colleague offered to walk her home; but she lived only 800m away and declined the offer. There was a massive social media campaign to find her after her husband reported her missing. Horribly, her body was found early this morning in a shallow grave. A Coburg man has been arrested and charged with her rape and murder. The crucial information that cracked the case was obtained from CCTV footage from a bridal store which showed Ms Meagher interacting with a man wearing a blue hoodie top. That final image of Ms Meagher walking off holding her phone is haunting. You just want to shout, No! Don’t go!

Somehow this case has really upset me. If there’s one thing I have never understood, it is the kind of crime which has been alleged to have taken place here: i.e. violent sex crime. I can understand how one might be pushed to commit murder or theft in an extreme situation — but this kind of crime is totally baffling and horrific. I just do not understand it at all. It is times like this that I wish I believed in a God or Gods. Some kind of prayer seems appropriate in any case.

What was even more distressing was the tendency seen in some comments immediately after Ms Meagher’s disappearance to somehow blame the woman – she shouldn’t have worn a short dress, she shouldn’t have been alone, she shouldn’t have been at a bar. I have a thought-experiment for people who might be tempted to think this. Let’s say you know a young man who takes a shortcut through a park late at night after having a couple of drinks with a few friends and is raped by a male assailant. Would you think to say the victim shouldn’t have worn a tight t-shirt, or that he shouldn’t have had a drink with some mates before he cut through the park? I very much doubt that you would. So I ask you: why is there one rule for men and another for women in this? The responsibility for this crime lies with the assailant, not with the victim. It is not up to women to control male sexual impulses. The responsibility lies with the assailant, and it is not the woman’s fault. Sure, one should still be careful, but a woman should be able to walk down the street without being at risk of being abducted, raped and murdered.

Although social media has been an immensely powerful tool in assisting the police with their inquiries, there is now a risk associated with social media, namely that the accused may not get a fair trial and consequently, it may be difficult to prosecute him. You can see that I have included a picture of the Victoria Police Facebook update in this post.

The important thing is that a person is innocent until proven guilty. I know it’s hard not to jump to conclusions. When Ms Meagher’s disappearance was first reported, my immediate instinct was to suspect Ms Meagher’s poor husband on the basis of my knowledge from legal practice that most murders of women are committed by men who are close to them. (Yes, I feel very guilty now). This is precisely why the presumption of innocence is important: so that we don’t jump to conclusions and convict people on instinct. We go through due process and we convict people on the evidence, coolly and calmly. We don’t just bash them up because we suspect they did it, because what if we get it wrong?

A Facebook page suggesting the accused in this case should be hanged already has 33,881 “likes”  (when I checked at 5:45pm today) as well as a photo which is allegedly of the accused, and there are numerous other such hate pages springing up (I counted six or so). Linked are some screenshots of comments made by individuals seeking revenge on the accused (warning: NSFW and requires a strong stomach). We don’t live in an age of an eye for an eye, a tooth for a tooth any more. Public hangings aren’t a spectacle these days (cf Tyburn Gallows) and I am glad of that. I can understand that people feel angry, and if Jill were my sister or my friend, I’m sure there would be a part of me which would want to exact bloody revenge. But the thing which makes us civilised is that we don’t take the law into our own hands. Indeed, anyone who injured the accused would be committing a crime, because the law applies to all, even criminals (that’s equality before the law, by the way). Meanwhile some poor fellow in Coburg who shares the same first initial and surname as the alleged perpetrator is receiving death threats and constant prank calls. This is why we don’t take the law into our own hands. When you act with emotion and on instinct, you often get it wrong and may commit great injustice.

This article from The Age explains why it is important to exercise restraint in this matter (appealing to people’s pragmatism as much as anything else):

University of Canberra journalism academic Julie Posetti said users needed to be aware of potential implications of “trial by social media” by posting about the accused.

“In this particular case, it would be awful to think about the potential consequences including an incapacity to prosecute somebody because of trial by social media, for example,” said Ms Posetti, who is writing a PhD on Twitter’s role in journalism.

“We all are very familiar with the term trial by media and it’s a real problem, but we also now need to be aware of the potential implications of trial by social media.

“Practically, [and speaking] generically, as soon as a person is arrested, we need to stop talking about what we think we know about that individual because there is a risk that his or her defence lawyers could argue that there’s no possibility for a fair trial in this country for the person who’s accused, because so much information has been published.

“If we go back to this case, identification will be crucial, so if this person’s picture is plastered everywhere it becomes a problem which is why we see the traditional media, particularly in Victoria, blotting his face so he’s not recognisable.”

In a statement earlier today, Ms Meagher’s uncle, Michael McKeon, acknowledged the role social media had played in the search for his niece.

“We believe that it has helped us in the search, but it’s not the outcome that we had hoped and prayed for. We thank the people around the world who have helped support us,” he said.

Ms Boschma said the CCTV footage of Ms Meagher had been viewed millions of times on social media. She said this was a good example of “action-oriented” information sharing.

“Victoria Police are really to be commended for releasing that footage, I think; they took a calculated risk, but it absolutely broke open the case and the rate of sharing, I think, helped spread action-oriented information and really, that’s what people want at times like this,” she said.

“The second reason why social media is so important in instances like this is a sense of connection and community, and people want to feel connected to others who feel the same as them.

“Where things start to become incredible, I guess, is that Jill’s name had appeared in more than 35 million Twitter feeds in the early stages of this case and a lot of the sharing came from Australia and Ireland.

“The community has extended across the globe via social media, which I think is really powerful and hopefully it’s provided some comfort for people.”

But Ms Boschma warned that the Facebook page created to help find Ms Meagher would now have to be carefully moderated.

“The message about being careful about what’s being shared doesn’t seem to be getting through,” she said.

“They [the page moderators] need to be really careful about what’s put up and they need to start moderating. This challenge of moderating Facebook pages is something that goes on every day and it’s now time for them to do that, to ensure criminal proceedings go the way they should go.”

Ms Posetti said this case “perfectly highlights the enormous power and potential of social media – and also the great risks”.

She said it was possible that the online community encouraged to help find Ms Meagher could be “the undoing potentially of a prosecution, if the community now takes it upon itself to do things like reconstruct the alleged perpetrator’s history”.

“While everybody now has the capacity to contribute to public conversation about issues including this very tragic story, and that might be really valuable and useful information … unless you are a lawyer or a person who has a professional responsibility for publication, you’re unlikely to be aware of the very serious risks that exist, particularly in a criminal case and particularly with regards to the threat to a trial.”

Ms Posetti called for a community education program to be rolled out among the community for greater media literacy.

She also expressed concern at the low levels of understanding among some users that the law applied to them on the internet.

“There is a belief that is alarmingly wide-spread that you can say what you want on the internet without any consequences, and while I’m an advocate for freedom of expression, I know that’s absolutely not the case and there are practical reasons why that’s not the case,” Ms Posetti said.

“We can have arguments about the need for defamation laws, for example, but we’re talking about something much more serious. We’re talking about a criminal prosecution involving a horrendous crime and we have to be aware that the law as it stands does apply to all forms of publication, whether that’s a blog or a Twitter feed or a Facebook page, particularly with regard to legal and court reporting.

“The law does not necessarily equate with justice. The law and our collective sense of justice are not necessarily the same thing so if what we want to do is ensure justice is done, we have to figure out how to play within the law on this.”

So yes, it’s a sad day. My sincerest condolences to Ms Meagher’s husband, family, friends and colleagues. What an awful, awful thing. But we must still ensure that people who are alleged to commit crimes are convicted fairly and on the evidence. Everyone is entitled to the presumption of innocence for the very good reason that we want to make sure we have the right person before we punish them. And I’m sure the last thing that Ms Meagher’s husband, family, friends and colleagues would want is for the trial of the accused to be derailed on the basis of the actions of vengeful idiots.

29 Comments

  1. Posted September 28, 2012 at 8:02 pm | Permalink

    This one really does need to be distributed far and wide.

  2. Matt
    Posted September 28, 2012 at 9:40 pm | Permalink

    The horse has bolted. In this case for a start and more generally. There is no conceivable way that millions of social media users will start considering the rights of the accused to a fair trial before posting their thoughts and observations. It just won’t happen. It was (barely) possible in the days of “old media” to shut down potentially prejudicial comment – it is impossible now.

    Courts have three options – 1. enforce censorship of twitter etc. That will end in tears. 2. Continually abort high profile trials on the grounds of prejudice. That wont last long in face of public outrage. or 3. accept the fact that the world has changed and have some faith in juries to put aside prejudice and assess cases on the evidence provided in court.

    Short of arranging lynch mobs, courts are going to have to accept chatter on twitter and Facebook as inevitable.

  3. Posted September 29, 2012 at 2:28 am | Permalink

    The longstanding legal concern for prejudicial material has to strike a medievalist as a little odd. Juries were originally part of justice as a do-it-locally system where the idea was precisely that juries were likely to know the people involved and have some idea about whether they were likely telling the truth or not.

    Clearly, juries drawn from a much larger social pool do not start of with a mass of knowledge about the people involved, so prejudicial material has much less “ballast” of existing knowledge about those involved to ameliorate its effects.

    If the issue is the effect of early framing, then any remedy should be targeted at that.

  4. Posted September 29, 2012 at 3:46 am | Permalink

    You wouldn’t describe medieval justice as up to much, though – jurors who knew the accused often simply used their empaneling as an opportunity to get rid of people they didn’t like. Alternatively, nothing was done to the locally powerful. This is in part what led to the Court of Star Chamber (initially very popular, something people forget).

    When juries came back, the modern rules avoiding juror knowledge of or contact with the accused developed; they do seem to work, too.

    Also, I know it is immensely popular to suggest that social media will undermine all-comers, but neither Twitter nor Facebook make much money, something reflected by the latter’s precipitous drop in share value since its IPO. It is entirely possible that neither will be with us in 5 years time, which leaves the Internet largely where it started: in the state’s hands. I hope you enjoy it, techdudes, as the State snoops on all your emails and you entertain some civil servant with your taste in porn.

    FWIW, I think that the combined might of geekdom may well take down the MPAA and fatally undermine copyright more generally, but any claim above that really is delusional.

  5. Posted September 29, 2012 at 5:40 am | Permalink

    A few years ago I was empanelled for jury selection for a criminal trial. The defense attorney said that the phrase “innocent until proven guilty” is badly worded. It should be “innocent UNLESS proven guilty”. “Until” implies the inevitability in a verdict of “guilty”.

    Perhaps this small change in speaking about how we should and must presume someone’s innocence UNLESS they are proven guilty would help moderate people’s behavior when discussing these types of horrific events.

  6. kvd
    Posted September 29, 2012 at 12:18 pm | Permalink

    LE, I’m interested in what it is that you or anyone thinks was actually achieved by the reported outpourings on both FB and Twitter? I can’t see any report so far which says that all the care, comfort or angst actually contributed to the arrest of the suspect.

    Like anyone, I hope Ms Meagher’s family and friends here and in Ireland gained some sort of comfort from knowing that a lot of people cared for her wellbeing, but it’s a stretch to suggest the online activity was in some way responsible for anything further than that. As to the inevitable trial, if a city of 4M can’t empanel a relatively dispassionate jury, then I would be amazed.

    A relatively new computer term is ‘crowd sourcing’. I believe the Law is (as usual) a little bit behind the times – and that’s a good thing.

  7. kvd
    Posted September 29, 2012 at 12:49 pm | Permalink

    LE@9 my understanding is that the police would now check, as a matter of routine, all potential CCTV sources. I simply don’t think it is possible to suggest that their checking would have in any way been related to the activities or reportage of either ‘social media’ or msm.

    As to ‘witnesses coming forward’, I haven’t read of that, and would be interested in a source if you have one?

  8. Posted September 29, 2012 at 5:10 pm | Permalink

    Is the effect any different to that of the types of conversation that would have occurred at the water cooler or at home? I’m sure phrases along the lines of ‘they should just hang the mongrel’ would have been uttered frequently in response to reading the arrest of a suspect in such a brutal crime regardless of how it was reported (tv news, newspaper, town crier, etc). The major difference with social media is the way it’s now happening in a more open and accessible medium and simply bringing to light pre-existing biases. If anything, the increased ability to identify biases and preconceptions in potential jurors will help, not hinder, the pursuit of justice.

    It seems that for newsworthy cases, social media management will be another skill criminal defence lawyers will need to possess. One possible change that could be made would be to make the whole trial process more open. Having the prosecution publish the details of their case against the accused (and have the defence have the option to publish) might provide the ability for people to better understand the case and rebut any ill-conceived determinations of guilt that might arise (publicly or otherwise).

  9. kvd
    Posted September 29, 2012 at 5:52 pm | Permalink

    This makes harrowing reading – link – but my point remains: where in that sequence of investigation is the contribution of social media or msm – except for the brief mention of her handbag being returned?

    I think desipis makes a couple of good points (pre-existing biases, another skill), but I don’t agree with the last – that wider publication ‘on the way through’ would assist. That last would grant us all the status of judicial experts – and we are most certainly not.

  10. robbo
    Posted September 29, 2012 at 7:19 pm | Permalink

    The law is playing games with the public, intentionally or out of sheer ignorance of the human condition
    It’s only a few days ago that people in Brunswick and surrounds were reportedly ‘terrified’ as result of this MUCH publicised case. It was aired by the mainstream media as ‘breaking news’ in Qld, NSW and of course Vic. No doubt the coverage was similar in other, far removed States
    Police sought, solicited the public’s assistance. In other words, the police involved the public – involved them in practical AND emotional terms
    Then, largely due to cctv and public assistance, police apprehended a suspect. Again, the mainstream media — for profit — fanned public interest via photos of the suspect and provision of his name. The mainstream media informed the public of the gruesome way in which the victim was disposed
    The public was dismayed, upset, depressed, frightened, enraged but has been instructed in no uncertain terms to basically deal with such powerful emotions in silence, to shut up and to back off from that point on. Well, life doesn’t work that way. When the public has invested its emotions and energy into an issue to this extent, they are psychologically unable to simply wipe their emotions clean. The police know this, the legal industry knows it. But they want to exert CONTROL. They want the power to jerk public emotions, to pull the strings, to toss people this way and that. And to instill fear in the public via threat and insinuation
    If the legal industry is unable to adapt to the instantaneous information sharing, discussion and involvement which are now the norm, perhaps the legal industry should establish a community, similar to the Amish, to be used as jurors. No tv, no radio, no newspapers, no internet. Bus them in from their insular community to attend trials as needed. In return, the pure-bred jurors could be compensated via free housing, water, food and other essentials. One thing is for sure, expecting human beings to switch overnight into unfeeling, uncommunicative robots is not an option. Deal with it, legal industry. You’re supposed to be intelligent and informed. So stop behaving like petulant idiots. You’re paid highly enough — by the public you’re alienating and deliberately attempting to confuse and control

  11. Posted September 29, 2012 at 8:30 pm | Permalink

    LE, I think part of Robbo’s point is that using the media and the public as an investigative tool depends on encouraging the public to become emotionally invested in the victims or the crime. Emotion is the leverage used to motivate people to participate. Then, the very minute the crime is solved and the alleged perpetrator is arrested, there’s an expectation that the public become emotionally detached and rationally consider the case only on the evidence (or not at all). It is one thing to expect professionals in the criminal justice system to be capable of doing that, but it’s a bit of a stretch to expect the public to do so.

    That said, if it’s possible to get a jury for someone publicly labelled “Dr Death“, they should be able to get one for this case. Perhaps they just need to wait long enough for the masses get distracted by the next celebrity wardrobe malfunction and forget about all the emotive hyperbole.

  12. Posted September 30, 2012 at 9:19 am | Permalink

    D@16 A new principle for the age of social media — justice delayed until things cool down is more likely.

    BTW I wasn’t advocating the medieval system; there is a secular decline in homicides, for example, once the state begins to get a monopoly of organised violence. I was just noting that the concern for prejudicial material seems a bit overdone even before current social media issue.

  13. kvd
    Posted September 30, 2012 at 8:02 pm | Permalink

    Also, LE@18, there’s just the teensiest hint of condecension emanating from said judges and lawyers as to the general intelligence of your average punter ;)

  14. RipleyP
    Posted October 3, 2012 at 9:18 am | Permalink

    I first heard of this matter when I was invited to sign a Facebook petition for a hanging. I was too busy to be keeping up to date with the current affairs of the world. Shows how ‘friend’ is a loose term if they forgot my abhorrence of any penalty that involves death.
    There is the option in Queensland to have a judge only decide the case under Chapter Division 9A of the Criminal Code Act 1899. The accused must agree to this course of action.
    It is concerning in that one of the remedies the court considers in relation to a polluted jury pool is to delay the start of the trial. In some instances the court has considered that 2 years was an appropriate delay.
    A desperate accused could understandably seek to give up their right to a jury in order to obtain an expedited trial. In this the media storm could have the effect of extending the remand period of an accused thus having them serve time while they are considered innocent until proven otherwise.
    I do like the innocent unless proven guilty idea.

  15. Chris
    Posted October 3, 2012 at 8:42 pm | Permalink

    Also, I know it is immensely popular to suggest that social media will undermine all-comers, but neither Twitter nor Facebook make much money, something reflected by the latter’s precipitous drop in share value since its IPO. It is entirely possible that neither will be with us in 5 years time, which leaves the Internet largely where it started: in the state’s hands. I hope you enjoy it, techdudes, as the State snoops on all your emails and you entertain some civil servant with your taste in porn.

    That’s bit like saying email will disappear when AOL does (15 years ago). There’s plenty of alternatives to FB or Twitter around waiting for the turn to shine. Even some which are fairly decentralised so are going to be much harder for governments to control (no big fat corporation to harass/bribe).

  16. Posted October 3, 2012 at 8:49 pm | Permalink

    LE @ 20. Oh yeah! I’ve a great yarn about how the makeup of a jury, and one dominant person, heavily impacted the outcome.

    Completely reversed it in fact. The 11 had decided to convict, then the 12th (dominant) person spoke 2 sentences, and the rest then voted to acquit!

  17. Nanuestalker
    Posted October 3, 2012 at 10:38 pm | Permalink

    accept the fact that the world has changed and have some faith in juries to put aside prejudice and assess cases on the evidence provided in court.

    Yes & Yes! enough said.

  18. Nanuestalker
    Posted October 3, 2012 at 10:52 pm | Permalink

    Can anyone explain the hysterical beatification of Jill Meagher? This is indeed a very sad and disturbing crime but I sense that its being hijacked for some twisted ‘burn your bra’ agenda. Just saying …

  19. Chris
    Posted October 4, 2012 at 12:31 pm | Permalink

    I’ve seen at least one parent of a missing person later found decrying the fact that their dead child didn’t get half the attention because the circumstances weren’t the same (missing child had mental health issues – so not as sympathetic).

    Also, being an ABC employee her co-workers would have known what to do to get the situation as much media coverage as possible when she first went missing.

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